Talk Studio: The Medical Liability Deposition Process in New York

MLMIC Insurance Company is proud to present new episodes of Talk Studio, a video series on important and trending issues in professional liability, healthcare law and risk management. The latest from Talk Studio is this 11-part series on the medical liability deposition process in New York. The information and guidance provided here by attorneys from Fager Amsler Keller and Schoppmann (FAKS), LLP, is critical for physicians and other medical professionals.

Part 1: Teamwork, Service of Legal Papers and Acting Fast
Al Anthony Mercado, Esq., and Mirsade Markovic, Esq., discuss the different types of legal documents, including Summons & Complaints and Subpoenas, a medical professional may receive over the course of their career. They touch upon the differences between them and emphasize the importance of reaching out to your medical professional liability (MPL) carrier or counsel immediately after receipt of any legal papers. In addition, they explore why teamwork (among the insured, carrier/claims specialist, defense counsel and a well-prepared witness) is a necessary element of a successful defense.

Part 2: Key Do’s and Don’ts After Receipt of Legal Papers
Mercado and Markovic from FAKS discuss the key things to do and not do after receipt of any type of legal documents, including notifying your MPL carrier as soon as possible, not contacting the plaintiff’s attorney and refraining from doing any research or record review other than your own.

Part 3: Documentation and Attorney/Client Communication
In the third part of our series on the medical liability deposition process, Mercado and Markovic of FAKS discuss how good documentation can contribute to credibility (versus having to rely on custom & practice). They note what details are helpful for documenting conversations specific to informed consent (in addition to the signed form) and emphasize the critical nature of honest and open communication between attorneys and medical professionals.

Part 4: Preparation
In the fourth part of our series on the deposition process, Mercado and Markovic of FAKS discuss the fundamentals of proper, effective preparation for a deposition. They explore attorney-client privilege; resisting the temptation to review other documents; independent recollection and when it’s better to not recall than to guess; and more.

Part 5: Timing
In the fifth part of our series, Mercado and Markovic of FAKS discuss how timing and scheduling can impact the deposition. They explain how being fresh and focused are vital to performing well and how clearing your schedule and having a final prep with your defense attorney can help you feel – and seem – less rushed.

Part 6: Making a Good First Impression
In the sixth part of the deposition process series, Mercado and Markovic of FAKS discuss how first impressions, including appearances, matter in a deposition. Specifically, they take a look at how attire and demeanor – like remaining cordial and professional – are critical. They also explore how anger is contagious and emphasize the importance of making sure the anger of the person being deposed, while understandable, is not exhibited during questioning.

Part 7: Format and Scope
In the seventh part of the deposition process series, Mercado and Markovic of FAKS discuss the format and scope of a deposition. They touch upon who may be present, who can ask questions and what questioning tactics may be utilized.

Part 8: Understanding the Question
In the eighth part of the deposition process series, Mercado and Markovic of FAKS discuss the importance of understanding the questions asked and limiting responses to each specific question. They describe how a witness should listen carefully and always pause before answering to give defense counsel an opportunity to object and request that the question be rephrased. They also touch on how the medical records entered into evidence can be used to your advantage and offer reminders, such as how a witness should never start to respond before a question is completed.

Part 9: Testimony
In the ninth part of the deposition process series, Mercado and Markovic of FAKS discuss the core pieces of testimony: independent recollection, documentation, and custom and practice. They explore different questioning tactics and tricks used by plaintiff attorneys or other defense attorneys, which include asking the same question multiple different ways and creating awkward silences to make a witness uncomfortable. They also remind witnesses to refrain from providing narrative answers and, instead, stick to concise responses. They emphasize that it’s okay to respond with “I don’t know” or “I don’t recall” rather than offering unsolicited testimony.

Part 10: Key Reminders
In the tenth part of our deposition series, Mercado and Markovic of FAKS recap some of the top takeaways about the experience, including a reminder to view your defense attorney as the only friend you have in the room at the time of a deposition. They also emphasize the importance of telling the truth and avoiding testimony that appears self-serving. Last, they discuss corrections of testimony given both at the time of and after the deposition.

Part 11: Conclusion
In the final part of the deposition process series, Mercado and Markovic of FAKS discuss what happens to the deposition testimony, including who reviews it, how it may be used in Motions and by medical experts on both the plaintiff and defense sides and the crucial need for consistency between deposition and trial testimony. They also remind witnesses to be calm and professional at all times. Additionally, they look at trends in how and where depositions have been held over the course of the pandemic.

Be sure to subscribe to the MLMIC YouTube channel to view upcoming installments of Talk Studio. We encourage our insureds to “like” and “share” these videos with the goal of spreading this important guidance with the extended medical community.

As we navigate these unprecedented times, MLMIC also reminds policyholders they have access to our toll free 24/7 Legal Hotline (855-FAKS-LAW), as well as numerous risk management publications and resources available via the MLMIC Insider.