Surviving Your DepositionBy: Lisa A. Wilson

University Legal Counsel

Lisa H. RutherfordSenior University Legal Counsel

Nancy K. LynchUniversity Legal Counsel

Medical Malpractice

• Cause of Action for NegligenceDuty - physician owes duty of reasonable

careBreach - physician did not meet standard

of careCausation – breach was a substantial

cause of injury Damages – compensatory

Notice of Claim• Statutory obligation for claims against

employees of state or governmental agency• State Employees (UW-Madison)

180 days from date of injury or discovery of injury

File claim with Attorney General’s Office• Governmental Agency Employees (UWHC)

180 days from date of injury (medical malpractice)

File claim on officer of agency• Lawsuit is barred if no timely NOC

When a Claim is Filed

• UW EmployeesNotified in writing by UW Legal ServicesAttorney will contact you

• UWHC EmployeesNotified in writing by UWHC Risk

ManagementRisk manager reports to insurance co

• Investigation of Claim

The Lawsuit

• Served with a Summons & Complaint

• Notify UW Legal Services or UWHC Risk Management immediately

• Short time frame to respond

• Do not discuss case with anyone except your attorney, risk manager, insurance co representative

Discovery Process

• Discovery DepositionFact-finding mission

• Evidence DepositionPreservation of testimonyMay be videotaped

Do You Have to Testify at a Deposition?

• Notice of Deposition – agreed

• Subpoena – compelled

Subpoena

• Subpoena: compels attendance at a certain date, time, location

• Subpoena Duces Tecum: compels the deponent to bring recordsDO NOT bring medical recordsCustodian of medical records is Health

Information Services

Role at a Deposition

• Defendant

• Expert Witness

• Treating Physician (fact witness)

Expert v. Treating Physician Witness Testimony

• Under WI law, you have a right not to be an expert witness (1 exception)

• You may still be compelled to testify as a treating physician (fact witness)

• Limit your testimony to treatment of patientWhat did you seeWhat opinions did your formWhat decisions did you make

Expert Witness Testimony

• Examples of questions that call for expert opinionDid the defendant breach the standard of care?Hypothetical Did the accident cause this injury?Will plaintiff have future pain/sufferingWhat will be plaintiff’s future medical bills?Any question outside the scope of your practice (e.g.

asking radiologist questions that should be directed to a pathologist)

One Exception

• Carney-Hayes v. Northwest Wisconsin Home Care, Inc.

• Court held that if allegation of negligence against physician, s/he may be required to give opinion on the standard of care governing her or his own conduct

Tips To Avoid Becoming an Expert

• Letter from attorney asking you to answer list of questions, DON’T answer expert questions

• DON’T review medical records you did not rely on in treating patient

• DON’T talk to your colleagues about NOC or lawsuit

Do’s and Don’ts of a Deposition• DO

Tell the truthPrepare yourself by reading records you relied

upon in treating ptPause before answering questionAsk attorney to repeat confusing questionsAsk to stop depo and converse with your attorney

if you need to Answer questions as simply as you can - “yes” or

“no” if possibleState that you are employed by the University of

Wisconsin

Do’s and Don’ts of a Deposition

• DON’TReview records you did not rely uponExpress anger or argue with attorneyBe afraid of the pregnant pauseVolunteer information – stick to the questionTeach the attorney what they need to know about the

pt’s conditionSpeculate or guess when you don’t know or can’t

rememberState that you are employed by UWMF, UWHC, or

UW Health

The Privilege

• Must answer questions after an objection (e.g. “relevance”, “form”, “foundation”)

• Exception for privileges

• Privileges are waived by answering the question

• Most common privileges:Attorney-client privilegeExpert privilege

Mock Deposition

On 3/15/2004, 45 year old female had CT performed prior to surgery for abdominal aneurysm. Radiologist noted potential lesion on liver in report as an incidental finding. Ordering provider did not notify patient of incidental finding. After another CT on 12/2/04 patient is diagnosed with liver cancer. Patient obtains first CT report. Patient sues ordering provider. Radiologist is deposed as a treating physician.