Intro: On Air With OMSNIC is a podcast intended to provide information only on certain risk management topics, and is not to be construed as providing legal, medical or professional advice of any form whatsoever. Because federal state and local laws vary by location, nothing in this podcast is intended to serve as legal advice or to establish any standard of care. Legal advice, if desired, should be sought from competent counsel in your state. The views or opinions expressed by the guest do not necessarily represent the user opinions of OMSNIC or its subsidiaries.

Bill Klaproth (Host): This is On Air with OMSNIC, a podcast brought to you by OMSNIC, the leading medical professional liability insurance company owned by OMS that exclusively ensures OMS. I'm your host, Bill Klaproth. Today, Matt Coles joins me to talk about how to prepare when you're scheduled to be deposed. Matt, thank you for joining us today and sharing your time and expertise as a long time defense attorney for OMSNIC. We certainly appreciate it.

So, let's start here, we talked before in another episode about the litigation process. Before we start getting into the details of depositions, can you tell us at what point during a claim could a doctor expect to be deposed?

Matt Coles: Yes. Now, this is state-specific in that there are some variances depending on the state in which you reside and practice. But in general, when the lawsuit is filed, there's going to be a brief period, a phase of written discovery, and then the deposition is going to go forward. Now, the timing of the deposition is going to be selected by the attorney who has brought the lawsuit. Some lawyers prefer to take the doctor's deposition first and then take ancillary depositions, staff, or other doctors who may have been involved in the patient's care and treatment.

Other lawyers go the opposite extreme and they want to take the assistants first. They want to take any other doctors who were involved in the patient's care and treatment and then save the defendant doctor for last. But in general, the answer to the question is your deposition is going to be taken usually within two to six months after the lawsuit is filed, but there is variance as I indicated.

Host: So, two to six months, that's good to know for someone who has been deposed. So, now that we have a better idea of when this occurs, what happens during a deposition?

Matt Coles: And that's a great question, because many doctors who are faced with a lawsuit have never had to sit for a deposition before. And so, it's a very uncomfortable experience, uncomfortable in the sense that it's not something they're familiar with. Very generally, a deposition is the following: you, the doctor, are going to sit in a room with your attorney next to you. There will be a court reporter in the room who's going to be recording every question and every answer. These days, it's very, very common for the deposition to be videotaped. So often, there is someone at the end of the table with equipment to video. And then, on the other side of the table is the attorney who has brought the lawsuit against you. And the deposition is an opportunity for that lawyer to ask you a series of questions. Now, your role as the doctor is very simple and straightforward. All you have to do is carefully listen to the question. In your mind, think, "What am I being asked?" And then, formulate an answer to the question in your mind and then give that answer and then stop talking. It's truly that simple, Bill. That's what a deposition is. The other attorney gets to come into the room and ask you questions. And your job is to answer those questions and only answer those questions.

Last thing I want to add here is, I stress to all of my doctors, understand that when you go into that deposition, when you step into that room to answer questions, you're going to be asked questions about things that you know better than anybody in the room. You're going to be asked questions about your chosen profession, something that you've studied and practiced and something that you're very, very proficient at. So, go into the room with absolute confidence, because, again, at the end of the day, you're going to be asked questions about what you do. And you know the answers better than anybody in the room. So, have supreme confidence when you go in. But you're going to be asked questions, and you're going to answer them. That's what a deposition is.

Host: Matt, you said, "And only answer those questions." So, it's important not to elaborate or give too much. What they ask, you answer, and then be quiet. Is that right?

Matt Coles: Absolutely. And if I can, Bill, I'd looked at a deposition this week that was taken. Now, this deposition was not an oral surgeon or another type of dental specialist, this doctor happened to be another type of specialty. But here's a question and answer I want to read, because it underscores the point you just made. And the point you just made, just answer the question. I'm holding this transcript in my hand. In this deposition, the doctor was asked the following question: is it a factor that points towards bowel obstruction existing or not existing? So again, the question was, is this a factor that points toward obstruction existing or not existing? And the doctor's answer started out great. The answer, I'm reading it here, is, "It points towards a constipation obstruction existing." Great answer. It should have stopped right there. But then, the doctor kept going and said the following three sentences: "You need to rule it out. Have a doctor examine the patient. Get diagnostics right away." So, with that extra verbiage, this doctor has given three gifts to the opposing attorney. Rather than simply just answering the question, he's given three gifts to the other attorney because the other attorney, you bet you, is going to follow up on each and every one of those extra little things the doctor added. So, just answer the question.

Host: Right. You open yourself up for more scrutiny and more questions. So, great example, Matt. Thank you so much for sharing that with us. I really appreciate that. So, is a deposition always a part of the litigation process, and who is typically deposed during litigation?

Matt Coles: Absolutely. The deposition is a part of the process, I would say in virtually every lawsuit. If the deposition is not taken, that usually signals that it is such a weak, insignificant case that the opposing lawyer is not even serious about the case. So, in any case that's filed, any case that's worth being filed, there is an overwhelming probability that your deposition as the doctor is going to be taken, and other depositions are going to go forward in the lawsuit. The patient will be deposed, sometimes one or more of your assistants will be deposed. If other doctors were involved in the patient's care and treatment, they are going to be deposed. But absolutely, depositions are, in almost every lawsuit, part of the process.

Host: And then, what can the typical doctor expect when being deposed?

Matt Coles: I want to stress again, this is very state-specific. So certainly, when you are dealing with a deposition coming up, forget what I've said and talk to your lawyer. However, I will say the following three categories are things you're going to be asked about. Number one, Your personal life, and I like doctors to know that because it is something that can be very jarring to a doctor when they sit for a deposition and they're asked questions, "Are you married? What is your spouse's name? Do you have children? Where do your children go to school?" Questions like that. And I always let my doctors know the reason those questions are asked is to assist the attorneys in jury selection. It has nothing to do with the Issues in the lawsuit, obviously. But most states allow those questions, because it enables the attorney to better select a jury. So, just know that those types of questions will be asked and answer them. Don't refuse to answer, because that just opens up a can of worms.

The second big category you're going to be asked about is your professional education. "Where'd you go to school? Did you do a residency? Did you do an internship? And where have you worked? All of these questions are very easy to answer. And the third and final category, you obviously are going to be asked questions about the care and treatment you provided to the patient who's involved.

And I'd just stress, we've talked these three broad areas, every doctor listening to this podcast is able to answer those without any study, because these are things they know. So, the doctor should be very, very confident. But understand, those are the three broad areas that you're probably going to be asked about during your deposition.

Host: Okay. And then, for a doctor that's been deposed, tell us what it's like. What do you go through? What guidance do you give that doctor? Let us in on your process. So, I'm a doctor. I've just been deposed. What is your guidance for me?

Matt Coles: I tell the doctor, and this is unfortunate for my profession, attorneys, many doctors have the view, and I disabuse them of this view, many doctors have the view that the attorney questioning them is going to be straightforward, fair and impartial, and sort of like, for those of a certain age, would know the Dragnet character, just the facts. That's, however, not what's going to happen. In most depositions, the attorney who is asking you questions, he or she is there to get the facts, but they're there for many more reasons than just that, and the doctor needs to know that. This is not going to be a an exercise where the other attorney is truly just trying to get a non-biased view of the facts.

The other lawyer is there for a reason. And I'm going to be blunt here. A lawyer takes a case. There are some who take it to assist the patient, yes. But most lawyers take a case to make money. How do they make money? They convince the doctor that the lawsuit should be settled or they win it at trial. And how do they do that? How do they win at trial or convince the doctor the case should be settled? They make the doctor feel that his or her care was inadequate or they make the doctor feel that they're not going to present well to a jury. So, the attorney is going to do everything he or she can to make the doctor uncomfortable.

So, the guidance I give my clients is, while you have to answer questions in the deposition, understand that you, the doctor, have the ultimate power. And by that, I mean you get to answer the questions. So, no matter how the attorney phrases his or her questions, you pause, you think about what you've been asked, and then you calmly answer the question. You control the deposition. That's the ultimate point that I get my doctors to appreciate and realize.

Host: Well, that's a good point for you to get across. So, we've all seen this on TV multiple times and in movies, the lawyer going through potential scenarios in the courtroom. So, do you do that? How do you help prepare doctors for their deposition?

Matt Coles: Often, we will do that. And that's something that I assess based on the way my doctor is in all candor. When I sit down, I get to know my doctors, and most doctors, when they understand what's going to happen in the deposition, I will often take them into the conference room, have them sit down and say, "You're going to be sitting in this chair, there'll be a lawyer here. He or she will be asking you questions." And if my doctor is comfortable with that process, I will sit and just talk to them. But if the doctor is very, very nervous or anxious, which is totally understandable, at times we will go through a mock deposition and we'll ask questions as the other attorney will do.

But, Bill, there's a point I want to make here, and that is, whenever we do a mock deposition, I always impress upon my client you cannot assume that the lawyer who's going to ask you questions is going to ask them the same way I did, because we lawyers who have experience are very good at taking depositions and lawyers will change tactics in the deposition. Sometimes they may raise their voice. Sometimes they may seem like your best friend. Sometimes they may seem very antagonistic. Lawyers are very good at trying to get inside the head of the deponent. And I stress to my doctors again and again, what I need you to do is ignore the attorney's tone of voice, body language. I need you to focus 100% on the question that's coming out of her mouth. And when you do that, it will be a successful deposition. Don't react to what the attorney is doing, because you're then allowing the attorney to control the dialogue. You control it. And you do that, listen to the question, when you know what the answer is going to be, you calmly and confidently give the answer, no matter how the question has been posed.

Host: There is so much that goes into this. Getting somebody prepared for this, when you say ignore tone and body language and focus only on the question, I imagine that's got to be really tough. So with everything a lawyer has to manage, Matt, why is this preparation so important?

Matt Coles: It's of critical importance, because the deposition is when the doctor has the best opportunity to influence the outcome of the case. I tell my doctor clients always, my goal when they leave the deposition, I want the other attorney driving back to his or her office thinking the following things about my doctor. I want them thinking, "Gosh! He or she is a very calm and confident person. He or she really comes across as a professional. A jury is going to like that person." A jury is going to think to themselves, "I would love to have that person taking care of my loved one." And a jury is going to think, "He or she really seems to know what they're talking about." So, that's the goal. I want the other lawyer driving back thinking, "He came across as a very, very competent, confident, kind person." And if we achieve that, we have done a ton. We really, really have.

Host: That is really great what I think you said there. So, coming off as confident, competent, a kind, knowledgeable person. That is really important to showcase that to a jury, right?

Matt Coles: Absolutely. And it's very important, and I stress this to my doctors all the time, and you alluded to this in an earlier question, just answer the question. Let me give you just a few small examples. Oftentimes, if the case, let's say, involves a nerve issue, a nerve injury of some type, and the doctor is asked, "Was there a violation of the nerve canal?" a good answer is no, if there was not. A bad answer is, and I often hear this, so again, the question is, "Doctor, was there a violation of the canal?" Many doctors will answer that in the following way: "Well, Mr. Lawyer, there was no flagrant violation of the canal." And you can imagine, as soon as the attorney hears that word flagrant violation, you've opened up a whole series of questions. "Well, Doctor, what do you mean by that, 'There was no flagrant violation'? So, there was a violation, it just wasn't flagrant?" That's another example I'll give.

And I see this so many times, here's the question, Bill, a doctor is asked, "What are the signs and symptoms of an infection?" And the doctor witness will say something like, "We don't have time to answer that question" or "How much time do you have? We'll be here for hours if I answer that." That is a ridiculous way to answer the question. Because I guarantee you, the other lawyer then will say, "Doc, we have as much time as we need. Go ahead. Give me all the signs and symptoms." And invariably, the doctor will speak for two or three minutes. And the other lawyer then has the fun of saying, "Doctor, I thought you said this would take hours. You just spoke for two minutes."

So, the point is avoid verbiage that you don't need. Only answer the question. Don't comment on the question. Don't critique the question. If you don't understand the question, totally fair to say, "I'm sorry, I don't understand what you're asking me." Other than that, answer the question. And then once you've answered the question, close your mouth and wait for the next question.

If I can briefly add, some doctors, many doctors often think that in the deposition they can talk their way out of the claim. You know, they're asked at the beginning, "Doctor, what's your name?" "My name is Dr. Matt Coles. And let me tell you, Mr. Lawyer, why this claim is meritless." Please don't do that. Just answer the question.

Host: Just answer the question. And like you said, don't try to talk your way out of the claim. And if I would imagine if you're looking nervous up there or befuddled or confused, that does not help your case either.

Matt Coles: That's, again, an excellent, excellent point. I always tell my doctors, think of a jury as just a collection of your patients. And if you walked into a patient encounter for the first time and you appeared nervous, you appeared anxious, you appeared uncomfortable, what reaction do you think your patient is going to have? It's clearly going to be a negative reaction. Listeners of a certain age will probably remember that there was a Saturday Night Live skit where the lawyer was very, very nervous, smoking cigarettes, as I recall, and sweating profusely. You know, think about that. You want to leave your listener, be it a patient or in this instance, the other attorney in a deposition, with the impression that you know what you're doing, you're a serious person, you're well trained, and you're there to do a service and you're there to do it correctly.

Again, if I can quickly add here, Bill, in many situations, there is a case that there is an instance where the doctor did do something, often it's a small something, that's not the way he or she would really have wanted to do it. And I tell my doctors, if that's the case, when that issue comes up in the deposition, and it will, you rip the Band-Aid off. You know, many of us have told children that you rip the Band-Aid off, you don't gradually pull it off, you just take care of it. And if you did not take an x-ray and you wish you had taken the x-ray, rip the Band-Aid off. When you're asked that question, you say, "You're absolutely right. I'd usually would have taken an x-ray and I did not do it." And then, stop talking. Don't hem and haw. Don't give a lengthy explanation. Rip the Band-Aid off and wait for the next question.

Host: Absolutely. So, is it fair to say then if we follow the tips that you've given us, Matt, be confident, competent, be kind, show that you're a reasonable person, calm, logically made decisions, and then you have the proper documentation to back that up, you really set yourself up for success. Would that be fair to say?

Matt Coles: Absolutely. And as we talked about earlier in this podcast, the deposition is the opportunity that the doctor has to most affect the outcome. And if the doctor does exactly what you just said, Bill, if the doctor leaves the other attorney, with the impression that the defendant doctor is calm, is confident, is nice, knows what he or she is doing, that is going to have the other attorney thinking, "Do I really want to spend more time and money suing this doctor? I've got better fish to fry. I've got other cases where I probably could make money. Going after this doctor is going to be a losing bet for me." So, that is exactly the impression you, the doctor, want to leave your opponent with.

Host: What great advice, Matt. Thank you so much for that. So, as we wrap up here, is there anything else we should know about a deposition or anything else you want to add?

Matt Coles: I'd just like to point out, well, not point out, but summarize here, listen to the attorney. Make sure that you have a game plan going into the deposition and do not, I emphasize, do not go into the deposition thinking you're going to implement a strategy that you saw on TV or that a friend's friend told you that you haven't covered with your lawyer. That is always a mistake. I stress to my doctors, you want to sit down, and you want to be a rock. By that, I mean you want to be calm and immovable. The attorney is going to learn by the way you answer your questions that he or she can spend hours if they want, but they're not going to move you from that calm, confident position that you know what you're doing, you're comfortable answering questions, you're confident with what you did, and at the end of the day, this is important, that you're a nice person. You leave the attorney with those impressions, and you've done everything you can to help us defend your lawsuit.

Host: Absolutely. And as you have said before, let the attorney be your guide. Flip the rules around. You, the doctor, are now the patient. The attorney is the doctor. Follow your attorney's lead. Matt, this has really been fantastic. Matt and I did a podcast on litigation. If you're interested in that, make sure you look that up as well. It is chock-full of great information. Matt, I want to thank you so much for your time again. This has really been useful and informative. Thank you again.

Matt Coles: Absolutely. Thank you, Bill.

Host: And once again, our thanks to Matt Coles. And for more information, you can always go to omsnic.com. And if you found this podcast helpful, please share it on your social channels and check out the full podcast library for topics of interest to you. This is On Air with OMSNIC. Thanks for listening.

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