Episode 036: The Best Defense is a Good Offense

Speaker 1: You are listening to Your Practice Made Perfect, support, protection and advice for practicing medical professionals. Brought to you by SVMIC.

Brian: Thanks for joining us today. My name is Brian Fortenberry and I'm really excited about today's podcast. We are going to be digging into some of the legal parts of what SVMIC does and the depositions and understanding what that is and how it can affect policyholders and physicians. And to help us navigate that today joining us, we have Miss Wendy Longmire. Thanks for being here.

Wendy: Thanks for having me Brian. I'm glad to be here.

Brian: I really appreciate you taking the time to come in and have this discussion because I'm hoping to gain a lot of information myself. I hear these terms and I know about them but don't always necessarily understand what that looks like in the legal system. Before we even start talking about depositions, tell us a little bit about yourself and your background.

Wendy: OK. Well I am Wendy Longmire. I am at the law firm of Ortel Kelly and that's here in Nashville in Davidson County, Tennessee. I've actually been with that firm since 1987. I clerked for a trial judge before that but I've been in litigation from the defense standpoint for the past 30, almost 31, years.

Brian: I really like I said appreciate you coming in and being an attorney. You'll really be able to help us understand this a little more. This word deposition, you hear it in all of the television shows and the legal thrillers. So explain to someone like myself in the most simple of terms, what is a deposition?

Wendy: A deposition is basically sworn out of court testimony. And that is usually done in the conference rooms of law firms across the country. And it is used for a variety of purposes. It comes along after the lawsuit has been filed. And perhaps this might be a good time just to talk about that framework.

Brian: Yes, please do.

Wendy: OK. So we talk about a deposition but of course it's not the first thing to arise. The litigation has to begin somewhere. And it begins with a bad outcome or event medically that has occurred. In Tennessee, the state of Tennessee, you have generally speaking one year from that event to bring the lawsuit. Now there's an exception to every rule. I've just given you a rule and the exception is you first have to be given notice that extends that statute for four months. So technically, in Tennessee, 16 months from the bad event is when a lawsuit must be filed.

Brian: And that's going to vary from state to state.

Wendy: It will.

Brian: But, in the state of Tennessee, it works that way.

Wendy: That's correct. Of course, I practice in Nashville Tennessee so I am speaking from that standpoint. So the lawsuit, let's assume that we get to that point and the lawsuit is filed and counsel is retained for a policyholder. And there is a meeting between counsel and the practice provider, that might be a physician, it might be a hospital, it might be a nurse, nurse practitioner and from there you file an answer to that lawsuit. After the answer, there's an exchange of written discovery and I'm going to talk to you today really primarily about oral discovery which is the deposition.

After written discovery comes the deposition or the oral discovery, the sworn out of court testimony, it's testimony, that is taken and preserved. The purpose for the deposition for the other side is to learn, to discover, to find out. It's also to preserve. And so it is to preserve the testimony of this individual so that you have locked them in, essentially. So there are no real surprises later on. Although there still are. And so you kind of also know exactly what their story is. So as a defense attorney I take that plaintiff's deposition I want to know everything. You know, tell me everything about what happened to you. Tell me everything that every physician, every care provider said to you. Who do you blame? And what are your damages? And you just spill it. I want to know forever.

After I take the plaintiff's deposition, they're going to want to take my client's deposition who may be the physician or the physician assistants or the advanced practice provider of any kind or the hospital or nurses like that. And it's a very, very important piece of litigation. And I really can't overstate that. It comes early on in the process so it can be a little daunting because you're not quite as seasoned to this lawsuit yet. A lawsuit takes a long time.

Brian: Sure. Yeah you see these and hear them. And it's like, as you said, you have an event that happens and then there's a time or period that goes by before you're actually find yourself being served maybe with the suit. But it could go a lot longer than that before you ever work your way all the way through the case and find yourself in the uneventful place of being in court right.

Wendy: Absolutely I think the American Bar Association guidelines, they're for complex litigation. They like to see resolution of those cases within two years of the date of filing. So you've already got a year, you've got 16 months, a year and four months before the lawsuit is filed. Add to that two years, and that's if everything's timely, and you're looking at three and a half years from the date of the event. That's not at all unusual. And you know I've certainly had cases that are beyond that in timing from the event to when they're actually being tried.

Brian: In the deposition, is it actually admissible in court or is it just the information you glean?

Wendy: It is admissible in court especially a party deposition. A party deposition can really be used for any purpose as opposed to a witness deposition.

Brian: So what is the difference there? You said party deposition. What is that?

Wendy: OK. So for example if I was a physician and, so I get to be Dr. Longmire for a minute, and my patient is Betty Smith and Betty Smith sues me and maybe my practice group. We are parties to the litigation so the plaintiff versus the defendants. Those are the parties. There may be a nurse provider that provided care or someone else that is involved in the litigation and has important information. They're witnesses. That's different on how you can use their deposition. But if a party's deposition is taken, it can be used for any purpose at trial and you can bet it is. It's a very strategic tool that we use to preserve and learn and to attack and impeach.

Brian: You always hear the old adage "lawyers don't ask questions they don't know answers to in court."

Wendy: That's right.

Brian: And this is how you get that information. You know the answers already right.

Wendy: Right. And I think with TV and with everyone being so knowledgeable these days really about how law's practiced, people do realize that but there's a ton of work that goes into a case long before it gets to trial. And the idea is to minimize surprise and to take all of this discovery so I know exactly where this witness is, how bad they're gonna hurt me, and what they're going to say. And vice versa, when they take my doctor's deposition, they want to know all of the defenses that we're presenting and all of the statements that we've heard and all of the things we're going to utilize in our case.

Brian: And now that we have determined for certain, this is an incredibly important and valuable part of any potential case that could go to trial for certain. And I imagine that there would even be some of these that you think you're in one position in your case then the deposition comes and you're like "Uh-oh, I'm not where I thought I was. Now we may not be able to take this to trial based on a deposition." Is that true?

Wendy: That is true. It is. And I don't want intimidate anybody listening, any policyholder to think "Oh my gosh, I'm going to have to give a deposition." I think what I try to do and other lawyers try to do is exemplify and tell your client that this is important and then prepare them.

Brian: So how do you prepare a physician? Because you're used to being in the medical office. You're used to being in the surgical O.R or the emergency room or wherever you practice but now you're finding yourself in unfamiliar territory.

Wendy: Yes I think that's one of the biggest things I see with policyholders and advanced care providers and physicians is that they have been in control and understand and know exactly what they're doing in their profession. And then they are pulled out of that and into the legal world where even the language is unfamiliar. They're in a conference room. People are aggressive. You might have heard that lawyers can be somewhat aggressive.

Brian: No. Oh, okay.

Wendy: Yes. Especially plaintiff attorneys, of course. So they can be very aggressive in their questioning. It can be very uncomfortable. Most of the time, in these types of cases because there's so much on the line, they are videotaped.

Brian: Oh, okay.

Wendy: And so that in and of itself can be very daunting to have a physician who just walked out of surgery and drove downtown now be in my office and there is a screen behind him, there's 10 lawyers in the room, a couple of paralegals and he sits down literally in the hot seat to give this testimony about why he did what he did. And you know the plaintiff attorney asking those questions is not posing those questions in the most friendly way.

Brian: Right. And so the great news is for physicians and policyholders before you feel that pressure of being in the hot seat, there's going to be preparation.

Wendy: Absolutely.

Brian: So tell us about what you do and how you get those physicians prepared to get to that point to where they do have a comfort level.

Wendy: And I think this is one of the things that we all need to be aware of is that, the physician or the care provider, they are the person in the room that knows the most about the subject matter. And I always tried to reinforce my client with that and say you are the smartest person in the room. When it comes to this medicine and this care and what you did you know more than anybody else in the room. So own that and own that without being... you know also we have to balance the type of personality of that individual. If they are strong and confident, I want to make sure they don't appear condescending or too aggressive.

Brian: Right. Arrogant about it.

Wendy: That's right. And vice versa. They might feel confident in their medical opinion but yet they are intimidated by the process and I want to build that person up. So practice, practice, practice. I've now been at this for almost 30 years. And you would think that my preparation time would be less. But I find that it's sometimes more these days. And what I generally do is, I will set a session for about four hours that we set aside to prepare for the deposition process. And it's somewhat informal. I sort of start the process and then we talk about it much like we're doing here and talk about certain questions that might come up in we do trial runs and see how the individual did and how they could perhaps do better. And then I usually find a second session where they now have that information and you can come back in and almost essentially do a mock deposition. It can be very helpful. We'll oftentimes videotape the client so they can see how they are on camera. It's important to look at the camera because, if this deposition is used at trial, you are now looking at the jury.

Brian: Right.

Wendy: So the camera is the jury in the deposition room. So even though the attorney may be to your right or left who is asking you these questions, it's very often wise to turn to that camera especially when you're making a particular point about your care and speak in to that camera so that, if it's utilized at trial, the jury thinks you're talking to them. Very helpful. And also you know just the simple things of what you wear and how do you physically sit in a chair. And I think physicians are often surprised and advanced care providers as how often they move and tap pencils or swivel chairs and things like that.

Brian: There is a lot of coaching obviously that goes into this in the preparation. It's knowing how to answer certain questions it sounds like and hopefully being prepared for the types of questions that might come from the other side. But it sounds too like it's also just knowing how to conduct yourself and being self-aware enough to know do this but don't do this, look this way, don't look that way. That could make a difference it sounds like.

Wendy: Oh absolutely. And we also want to and this is not something we really have to teach these individuals because all of these people that went into medicine, I have come to find, went into it for the altruistic reason to help people and so we always want let that come across and the care you have for this particular patient, though they now are suing you. We want to show the jury that compassion that we have for their situation and make sure that that comes through. So you know it's difficult. You're defending yourself, you're in a defensive position, somewhat offensive at times. Yet you want to show compassion.

So you have to sort of combine that all together and then an overlay on that is all the lawyers are speaking another language. There's the semantics of the deposition process and it's that very first time when you're going to be asked questions about the standard of care and comparative fault and proximate cause. And so your lawyer will, and certainly I will, prepare you for that. And the standard of care is a term we lawyers use to examine and evaluate these healthcare professionals. Our definition is a legal term. Now there is a medical term and so we try to combine those in order to fit the lawsuit. So those are terms that you have to become very facile with and able to define them. They're gonna ask you, the other lawyer is, to define what the standard of care is, whether or not you felt like you had breached the standard of care. It's important to do some research too.

Brian: Sure.

Wendy: Some of that stuff is individualized to your particular defense attorney because anything that your client does as far as research that's discoverable by the other side. So, in essence, if you go looking for trouble and you find something that's negative to our position, that could potentially be discoverable. So I usually couch that in terms of it is research we do together so it's attorney client privileged and so it's not discoverable. But you certainly want to be familiar with your particular specialties, guidelines, or textbooks that you generally refer to. Plaintiff attorneys like to pull sections out of there and say "Don't you agree that you should always secure the common bile duct and make sure you know where that is?" And those types of questions can lead into a trap that, obviously if you've entered the common bile duct, that you've just said you should always identify it. And so you just want to be prepared for that and understand the nuance of those questions, which your attorney will help you do that.

Brian: You talked about the mock depositions. Do they need to go see a real deposition or are they allowed to or is that helpful?

Wendy: Oh I think it is helpful. At a minimum just watching another deposition that may have happened either in this case or another case but very often the tier of how these depositions go are party depositions first then witness or fact depositions second and then expert depositions third. Plaintiff goes first usually then the defendant. I have found that the best relationship for the attorney and the defendant is when that defendant really becomes engaged in their own defense. They are an expert. You immediately as an attorney have an expert on the medicine in this case. And on the standard of care, I mean right there. And, of course, you're going to hire additional experts but this person can explain everything.

Brian: And you know what you did better than anybody else, you were the one that did it.

Wendy: Absolutely. So for that defendant to early on partner with legal counsel and really become invested in this whole process, I think is so mutually beneficial. And by that I mean when the plaintiff's deposition is set, I always invite, encourage my defendant, physician or care provider to attend that deposition. Sometimes they're just too busy to do that and they're not able to work that in and, of course, I try to work it out with their schedule. But the reason for that is even though that's not a health care professional that's going to give a deposition, that's the person that sued you.

Brian: Right.

Wendy: And you're going to be sitting in that room, this time nobody is asking you questions and you're going to see how everybody else asks questions. You're going to see how that plaintiff attorney interacts with your attorney. And you're going to see all that process. To me there's no substitute for partnering, observing, and really becoming locked, loaded, and engaged in the process. But that doesn't always happen.

Brian: Sure.

Wendy: So if that's not something that can be done then absolutely looking at real life depositions or especially of the particular plaintiff attorney. Everybody's got a different style. I always say the nicer ones are the most dangerous.

Brian: They kind of lure you in right.

Wendy: Yes.

Brian: And then all of a sudden, there's the big Matlock moment.

Wendy: That's right. They be real folksy and shake your hand and talk about their grandmother and the next thing you're admitting that it would be an absolute breach of the standard of care to do what you've just done.

Brian: Right. To me and I guess every personality is a little different but, if I was there to kind of get an idea of the, and I almost hate to use this term, “players in the game,” certainly the opposition attorneys and how they operate and get kind of a feel of how they do things that would make me feel in a very tense situation of having to give a deposition at least I know something. I'm not going into it blind. I've seen this person before. I've seen how they operate.

Wendy: Exactly, seeing how they operate. I recently had a deposition where the physician he did not really have the time to attend the plaintiff's deposition but I really strongly encouraged him to do that. And there was a lot of argument between counsel primarily from plaintiff counsel during that deposition and he was able to pick up on sort of the antagonistic nature that he would face. And then as we prepared for deposition, this is a very strong individual, he's very experienced in his practice. But being in this process really unnerved him and we prepared and he just felt, he goes "I'm just not ready. I just don't feel like I'm ready." And I said "Well, let's just meet on a Saturday and we'll go over a couple more hours before our Monday deposition." When I got there he was kind of red faced and seemed angry. And I said "What happened?" And he said "Well I got here." And he apparently carries a weapon. He has a permit to but our security guard apparently accosted him about the weapon and said he couldn't bring the weapon inside. And it just infuriated him. And I said "I'm so sorry. I understand." And we get up to the deposition, we start preparing and he again is like "I'm just not feeling comfortable." And I said "You know what, you need to be thinking about when this attorney leans over to start asking you questions that he's going for your gun."

Brian: Wow.

Wendy: And he started squaring off his shoulders and saying "What are you talking about?." "That's what he's doing. He's reaching for your gun." And so for that particular witness that worked. It made him confident. Not in a rude way but confident to meet those questions and squarely defend them.

Brian: So part of the preparation really is getting to know your client in a way to be able to communicate to them to help them get that mindset there.

Wendy: Absolutely. And then there's a couple of tricks of the trade that plaintiff attorneys will like to have you state that some particular text is authoritative. And by doing so they can use that text to cross-examine you. So we always prepare our clients to saying no one text is authoritative. There are many different ways that you research and get information. Your experience, your training, your colleagues, textbooks but online things as well. So there are those types of preparation so you just don't fall into a trap that can later be used against you.

Brian: Often in these situations you think about what do I need to do, how do I need to prepare, what do I need to say, how do I need to act. The opposite side of that is how can I mess this up and mess it up really bad. So if I go from that standpoint of "Okay, here's what I definitely need to do in reacting in my deposition in saying in speaking." Where would we fall maybe on some of the highlights of definitely don't do this because this really messes it up?

Wendy: Right. And I think sometimes physicians and our care providers believe or hope that they can win the trial in a deposition. That they're going to be able to convince the other side, if you just listen to me, you'll see the fallacy of your ways and you will withdraw this lawsuit. I've never had that happen. And so I try to prepare them "Look, you can't win your lawsuit but you can lose it.” And you can lose it by losing your temper, losing your focus, not telling the truth. And that sounds obvious but sometimes, when people are unsure and they're in a tense situation, they reach for an answer that may not be completely accurate or completely based on memory. And that creates a terrible trap later on if another record contradicts that.

Brian: Sure.

Wendy: So those are some of the ways that you can lose your case in a deposition or obviously if you take an unreasonable stance or position and find yourself just tangled up in your deposition testimony. So we try to prepare for all of that, ask the really tough questions, ask them again and again before the deposition so that you're prepared when they come down the pike. I find myself if I haven't asked a question, a big question that comes up then I haven't done my job in preparing that policyholder for their deposition because I've been in a lot of depositions so I should be able to tell you what to expect.

And along those lines, there is always the medical records. And we live and die by these records. We really do. They become such a huge part of the case. And knowing your own records, there's no substitute for that. I always say that the devil's in the details and all of these hospital records with the dates and the times, all these chronologies, really become crucial when you're defending in a health care liability case, about when somebody's complained of pain was a seven, when medication was given, when the doctor rounded, who notified who. So I think it is very helpful to sit down even though it can be tedious with my client and go over those details so they're not surprised when, even though it wasn't their record, when the plaintiff attorney hands them the nurse's note that says they called the doctor and the doctor didn't answer. We need to know that that's in there before we ever get to that deposition table.

Brian: I would want all of the tough questions addressed at least well before going into that deposition. So even though it might make me uncomfortable I would want my attorney to ask the hard questions, to put me in the tough situations, to make me really question myself on some things because I'd a lot rather it happened in the preparatory meeting than in the videotaped deposition itself.

Wendy: Absolutely. And a question I often get when I'm preparing a client is "Am I going to be able to take a break?" "Can I ask you a question?" And the answer is yes. You can take a break at any time for any reason and we can certainly talk on the break. There used to be some prohibition on that but now it's pretty wide open that you can talk to your counsel about your testimony privately on a break.

However, especially on a video you can imagine and this happens, and even though we prepare for this and instruct folks not to do this, when things get tough and faces get red if a client turns to his attorney in the face of that question and says either "Do I have to answer that?" or "Can we take a break?" or something to that effect they're going to play that back in front of the jury. So I always instruct my clients and my witnesses, for that matter, if you feel that way you just keep looking at the camera and then saying “I think I need to go to the bathroom." "This would be a good time to take a break." And usually, unless there's a question hanging, we can take a break at that point in time and then we can talk about it. So if you're feeling that sort of high blood pressure moment, you can take a break without turning to your attorney and asking for help in that regard because nothing more than a plaintiff attorney would like to do is play that back and say "Look, Dr. Smith couldn't even answer that question without his attorney's help." Or "We had to take a 15 minute break and then he suddenly came back with the answer to that question."

Brian: I tell you in this process of our discussion today I think what's really important for policyholders, physicians to understand is, you could very well find yourself being named in something, at least having to give a deposition. And the beauty of it is there are people to help you. These attorneys much like yourself that are going to take the time, that are going to help you, that are going to prepare you for this. And like you're saying we didn't want to scare people to death. It is a serious matter. However, there is preparation and there is time going into it.

Wendy: Absolutely. And, Brian, one other thing that would want to mention is that I have talked primarily in the context of when you're a party. There may also be times when you have been a provider of care and your testimony is crucial but you've not been named. So they might subpoena you and request your deposition. And I would certainly state that on those times, when there is especially litigation going on about health care, contact SVMIC. While you are not immune from a subpoena for a deposition, you are immune to one for trial and ultimately would have to give a deposition but being prepared for those even when you're a witness.

Brian: I really appreciate all the time you've spent with us today. I certainly am happy that we have people like you that help policyholders and physicians when they find themselves in this situation. So thank you so much for taking some of the fear off of deposition, understanding what it is and how important it is today. Wendy, I really appreciate it.

Wendy: Thank you Brian. I really enjoyed it.

Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect with your host Brian Fortenberry. Listen to more episodes, subscribe to the podcast and find show notes at SVMIC.com/podcast. The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policyholders are urged to consult their personal attorney for legal advice as specific legal requirements may vary from state to state and change over time.