14 // THE NEW GASTROENTEROLOGIST FALL 2017
the plaintiff’s attorney will take your
deposition. The plaintiff’s attorney
will strive to obtain concessions that
establish the standard of care, breach
of the standard, causation, and damages.
Your deposition is not the time
for you to provide explanations. It is
the time for you to concisely answer
specific questions posed by counsel
without volunteering any additional
information. Ultimately, trials build on
what occurs during depositions.
Preparation is key. Be open to advice
or criticisms from your lawyer. Try
to eliminate any quirks or habits that
interfere with the substance of your
testimony or perceived credibility.
A deposition is not a casual conversation; nor is it a test of your memory.
Limit your answers to personal knowledge; never guess or speculate.
If you do not know the answer to a
question, or do not remember something, it is perfectly acceptable for you
to say so. Answer only questions that
you understand. You are allowed to ask
the plaintiff’s counsel to repeat or rephrase questions.
Once you have answered a ques-
tion, stick to your answer if it is ac-
curate. It is fine to change an answer,
but do not change it simply because
the plaintiff’s counsel is pushing you
to do so.
Aggressive interrogation by oppos-
ing counsel may occur. Never argue
or quibble with the plaintiff’s lawyer;
leave all arguing to your lawyer. A
witness who is calm, courteous, and
confident is more likely to appear
credible. The plaintiff’s attorney may
request that your deposition be vid-
eotaped. If this is the case, be mindful
of your mannerisms, tone of voice,
and appearance. The videotape may
end up being played in front of a jury.
Finally, and most importantly, al-
ways tell the truth. Discuss any antic-
ipated issues or concerns with your
lawyer before your deposition.
Preparing for trial
A trial can last anywhere from 1 to 3
weeks. Your daily presence (including
at the jury selection before the trial
begins) is mandatory and in your
own best interest. Your lawyer will
have little control over the date on
which the trial will occur. That date
will be set by a judge, who will not be
sympathetic to your scheduling prob-
lems. Be prepared to cancel patients’
appointments and any procedures
already scheduled. The jury’s percep-
tion of you can be influenced by your
presence and demonstrated dedica-
tion to your defense.
In summary, remember that there are
things you can do both before and
after you are sued to minimize litigation and its impact. As mentioned
previously, before a lawsuit, and as
a regular part of your practice, it is
important that you stay current with
medical advances, that you take the
time to create a relationship with
your patients involving quality communication, and that you thoroughly
and legibly document all aspects of
After a suit is filed against you, make
sure you notify your insurer immediately, do not alter any records or discuss the case with anyone other than
your lawyer or spouse, and do all you
can to create a productive and honest
relationship with your lawyer. This
relationship will be invaluable as you
do the difficult and time-consuming
work of preparing for your deposition
and trial, and it can help you endure
and successfully navigate the litigation
Acommon basis for establishing a malpractice liability claim against a physician is the failure to follow up or track a patient’s test results. In today’s world, there is an increasing number of moving parts involved in any given pa- tient’s care. A particular patient may be treated by numerous physicians, all of whom use different
record systems. Electronic medical record systems have
made records more accessible and easier to track, but
they also present a new set of challenges.
Every physician needs to determine how they plan to
track test results. The ideal system would allow a physi-
cian to quickly get back any lab or diagnostic test that he
or she orders. All staff members should know how the
physician’s system works. Otherwise, test results might
accidentally be filed before the physician reviews them
or a miscommunication could prevent test results from
being delivered. Whatever choice of system, it is key to
follow and effectively use the program every time.
Additionally, it can be beneficial to let the patient
know when he or she can expect to hear about their re-
sults, as failure to keep the patient reasonably informed
can create a new set of patient concerns and anxiety.
Ultimately, establishing a well-defined system for record
tracking can help physicians avoid malpractice liability
claims because of a failure to follow up. n
The Importance of Follow-Up: Further Advice on How to
Decrease the Risk of Being Sued