About Medical Malpractice Depositions

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Understanding the Legal Process

[By Dr. Jay S. Grife JD MA]

[By Dr. David E.Marcinko MBA]

Depositions are a legal discovery method that deserves specific discussion because the deposition, or oral statement under oath, is such a vital piece of the puzzle.

In general, either party may depose any other person but in general, a deponent has some relevance to the case, whether it be as a fact witness, an expert witness, or a before and after witness (a person who can testify as to the state of affairs of a person before and after the incident in question).  

Gaining Insight 

Depositions are taken to gain an insight into what information will be necessary in order to prosecute or defend a case. Even more important is that the oral deposition provides the respective lawyer with a chance to evaluate that person’s reactions to stress, to personally see for the temperament of the witness, to view the witness’ demeanor, and to analyze how that person responds to spontaneous events. 

Deposition Format 

The format is typically oral and in person question and answer dialogue although recent technology has permitted depositions via telephone conference, video-conference, and various internet medium exchanges. Depositions can be taken via written question format but often this type has limited value because the deponent will not be asked any follow-up questions and a statement cannot be investigated further.  

Do’s and Don’ts for Doctors 

There are many lists of do’s and don’ts that lawyers often provide their clients, but the fundamental character of the deposition is for the deponent to tell the truth. While it is rare that a trial sees the Perry Mason moment, these do in fact happen and when it does, the result is often exactly what viewers of that classical television series see.  


Skeletons in the Closet 

As a rule, in light of the attorney client privilege, I insist upon knowing whatever skeletons are in my client’s closet, past or present. It is of ultimate importance that a client confides the truth to their lawyer so that the any adverse issue can be addressed through cognizant decision, rather than surprise.

In a recent case, my client was being deposed and admitted to me that she was a lesbian. Her sexual preferences did not matter but the fact that she disclosed a misdemeanor arrest for marijuana did. I advised her to tell the truth about both issues and explained why this was important.  During her deposition, when the homophobic defense counsel abrasively probed her sexuality, she readily admitted her own sexual preference. That was fine but the defense lawyer continued to “push her buttons’ until she finally screamed at him to “shut the f… up”.  

The die was cast because the next line of questioning involved her arrest record as to the marijuana. When my client denied any other arrests but for the drugs, it was simple for the defense counsel to show her documentation of four earlier felony arrests including one for fraud, which ultimately cost her the case.   

The important fact to remember is that we all have a past and that being truthful as to its content can often dictate a successful outcome of a case. 


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Speaker: If you need a moderator or speaker for an upcoming event, Dr. David E. Marcinko; MBA – Publisher-in-Chief of the Medical Executive-Post – is available for seminar or speaking engagements. Contact: MarcinkoAdvisors@msn.com


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2 Responses

  1. How does malpractice reform affect physician migration?

    We often hear about malpractice reform pitched in terms of spending reductions.

    But, that ignores its other potential effects. Does it affect physician migration? In a good way or a bad way? There’s a new study on that topic, over at the AcademyHealth blog.




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