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Depositions: What NPs need to know

Brous, Edith Ann BSN, MS, MPH, JD, RN

doi: 10.1097/01.NPR.0000511782.74744.d0
Department: Legal File

Edith Ann Brous is a nurse attorney at Edith Brous, Esq. PC, New York, N.Y.

The author has disclosed that she has no financial relationships related to this article.

An NP's risk of being named in a lawsuit is determined by many factors. Practice area, demographic factors (such as age, gender, geographic location, state of residence), level of education, physician collaboration status, prescribing authority, years in practice, and employment status all affect one's risk.1

Some interesting findings from a recent claim study include:

  • The number of claims increases with experience. Almost 73% of claims were for NPs who had worked as an NP for more than 11 years. Additionally, the highest average payments were for those who had been in practice for 6 to 10 years.
  • Higher levels of education are associated with higher average payments.
  • Time in direct contact with patients affects indemnity. NPs who spend the lowest amount of time in direct contact with patients have a greater risk than NPs who spend the greatest amount of time in direct contact with patients.
  • The use of electronic medical records is associated with the lowest average payment and the lowest average indemnity.
  • The highest average payment, expense, and indemnity were for respondents who experienced scope of practice claims and indicated they did not realize they were practicing beyond their scope.2

The fear of malpractice lawsuits far exceeds the reality for most nurses, even those in advanced practice roles. Most nurses and NPs will go through their entire careers without being named in a complaint. When it does occur, however, the legal system can be confusing and stressful. Adequate preparation is essential to maximize the chance of a good outcome and reduce the anxiety associated with the process. This article discusses one component of the legal process: the deposition.

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Overview of a complaint and possible court case

Once a plaintiff (a patient or representative of the patient) has consulted with a malpractice attorney, the attorney obtains the plaintiff's medical records and other relevant documents to have them reviewed by an expert. If the expert believes there is merit to the claim against the provider(s), the attorney begins the process by filing a document with the court known as the complaint. The party or parties being sued (the defendant or defendants) are served with a summons (an order to appear in court) and the complaint, which outlines the facts of the case, the reasons for the suit, the legal theory of the case, and the relief being sought.

The investigation continues, and prior to any trial, both sides exchange information regarding the case in a process known as discovery. Discovery is the stage prior to trial where both parties exchange information and evidence. During discovery, documents, photographs, and other materials are shared and witnesses are interrogated in depositions. A deposition is an examination before trial of a witness.

The witness provides testimony under oath and can do so voluntarily or in compliance with a subpoena (a command to appear in court, which can be court-ordered). The deposition allows the attorneys to “discover” what the witness knows in preparation for trial. A good deposition can assist in the defense against allegations of malpractice. Conversely, a bad deposition can lead to the loss of the case.3

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Legal counsel

The deposition usually takes place at an attorney's office or might be scheduled in a courthouse. Some depositions are videotaped, some are done via videoconference, and some are audio recorded. At the outset of a deposition, documents that the witness will be asked about are marked and numbered as exhibits. A court reporter records all spoken words into a transcript to which the exhibits are attached. With a few exceptions, the witness must answer all questions asked by the examining attorney.

Follow-up questions can be asked by the witness's lawyer and by attorneys who represent other parties. Attorneys can object to questions for a number of reasons, and the disagreements between adverse parties can get heated at times. The NP should remain silent and only answer the question once the dispute is resolved and he or she is directed by counsel to do so.

Attorneys for all parties obtain a transcript of the deposition and review it for completeness and typographical accuracy. The witness who testified also reviews it for necessary corrections.

If an NP is an employee, the attorney assigned to prepare and represent the NP will be assigned by the employer's insurance carrier. It is important to understand that the client for that attorney is the organization for whom the NP works, not the individual NP. The NP is not the client but an employee of the client.

The organization's attorney must do what is in the best interest of the organization. At times, that might not be what is in the best interest of the NP. NPs as employees might need to have a personal attorney represent them in some cases.4

If the NP has an individual professional liability insurance policy, the insurance company will provide coverage for the representation. Malpractice attorneys who represent organizations might not advise the NP on potential issues related to the malpractice suit, such as licensure implications. Even when NPs are represented by the employer's attorney, a professional liability policy might cover an individual attorney to accompany the NP to the deposition.

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The use of the deposition

Depositions are critical in determining whether a case will go to trial. The deposition transcript can be used by either party as evidence to request judgment on the claims. In a pretrial pleading, known as a motion for summary judgment, the requesting party asks the court to rule in his or her favor without proceeding to trial.

The attorney makes the argument that the deposition evidence is sufficient to prove that there are no disputed facts that have to be determined by a jury. The motion asks the court to render a judgment as a matter of law. When these motions are not successful, the matter proceeds to settlement negotiations or to trial.

The deposition transcript preserves the witness testimony. If the case proceeds to trial, the deposition testimony of the witness is used at the proceeding. Attorneys will carefully review the deposition transcript in preparation for the witness examination at trial. Inconsistencies in testimony can be used to impeach the witness by undermining his or her credibility. Review of the deposition transcript assists the attorney in preparing a theory of the case. It can also prevent surprises at trial.

If the deposition was not videotaped, the transcript will only provide the spoken word. It will not include facial expressions, tone of voice, vocal inflections, posture, or other nonverbal cues. If the deposition was videotaped, those elements will be present. The videotaped deposition can be used at trial in cases where the witness is unavailable to testify in court.

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Depositions of NPs

An NP can be asked to offer deposition testimony for many types of lawsuits, including medical malpractice, negligence, workers' compensation, or even criminal proceedings. The NP's role as a witness can include testifying as a plaintiff bringing a suit, as a defendant who has been named in a complaint, as a nonparty witness, or as an expert witness. NPs are particularly suited to testify as experts.5

In all cases, it is critically important that the NP be prepared and represented by an attorney. Witnesses testifying at a deposition should be as prepared as they would be in testifying before a jury in court. The attorney representing the NP for the deposition will prepare the NP by explaining potential sources of conflict during the deposition. Arguments between opposing counsel are not uncommon, and the NP should understand what to expect when they occur.

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Preparation

The attorney will review documents with the witness that he or she anticipates will be used in the deposition, and responses to foreseeable questions are prepared. The attorney will explain the opponent's theory of the case and use the deposition preparation to develop his or her strategy.

The attorney can reduce the NP's anxiety by explaining the process so the NP knows what to expect. Prior deposition witness transcripts might be available to review so responses to adverse testimony can be crafted. Pitfalls can be anticipated, and strategies devised to respond to them.

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General tips for preparation

To prepare for a deposition, the NP should

  • notify his or her employer's risk management or legal department and personal malpractice carrier if subpoenaed or asked to testify at a deposition.
  • not attend a deposition—not even as a nonparty witness—without being represented by an attorney. It is possible to make a statement against one's own interest without realizing it. Because witnesses can then be named as defendants, a personal malpractice carrier might provide an attorney for the NP even if he or she is not a defendant or the intended target.
  • be professionally attired and composed. It is important to create a good impression and establish credibility as a skilled provider. Informal dress, gum-chewing, the use of slang, or an overly casual demeanor can undermine those attempts.
  • not conduct any independent research or review any documents prior to the deposition without legal advice. It is common in a deposition for opposing counsel to ask what has been reviewed in preparation for the deposition. Medical records or other documents should be thoroughly reviewed with an attorney before answering questions about them.
  • not keep personal logs, diaries, or journals that provide detailed information about patient care or adverse events. Such materials can be discoverable and harmful to a defense.
  • avoid conversations regarding the events at issue with anyone with whom he or she does not have a legally privileged relationship. Generally, things said in conversations with attorneys or malpractice insurance carriers are confidential, but it is important to get the advice of an attorney regarding to whom he or she can and cannot speak with about the issue. Conversations can also be discoverable and provide additional adverse witnesses. Additionally, it is easy to make a statement against one's own interest without realizing it, creating difficulties in defense.
  • discuss anything that may seem harmful with his or her attorney so adversarial responses to it can be anticipated.
  • try to get a good night's sleep the night before the deposition.
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General tips for testimony

When answering questions in a deposition, the NP should

  • pause before answering questions long enough for his or her attorney to object to the question before responding.
  • answer with complete words, not “uh-huh,” nods, shrugs, and the like. The court reporter must transcribe all spoken words, and nonverbal responses create difficulties in having an accurate and complete transcript. The following are acceptable responses:
    • – “Yes.” For instance, “yes” is the answer to the question, “Do you know what time it is?” (Do not answer, “It is 9:30.” The attorney did not ask what time it was, only if the NP knew what time it was—answer just the question asked.)
    • – “No.”
    • – “I do not know.”
    • – “I do not recall.” The NP might be provided documents to refresh his or her recollection and asked if he or she still does not recall. If reviewing the document does not help remember the information being asked, the answer remains the same.
  • pay careful attention to the question being asked, and only answer that question. Do not volunteer information, editorialize, attempt to teach, or answer questions at great length.6
  • not interrupt the examiner or anticipate what he or she is asking. Listen carefully to the entire question and answer only what was asked.
  • provide succinct and direct responses to questions.
  • only answer questions if he or she knows the answer; never guess or offer conjecture. “I don't know” is an acceptable response.6
  • maintain composure. It can work against the NP to become flustered, defensive, argumentative, or sarcastic. It is important to not take anything personally if the opposing counsel becomes antagonistic or accusatory.
  • request a break if needed.
  • not answer questions that he or she does not understand; request that confusing questions be rephrased.
  • not accept a misleading premise or answer a compound question. It is acceptable to state that he or she does not remember if something is not recalled, but that it would be a usual and customary practice to do something.
  • be consistent and tell the truth. Lies and deception can lead to accusations of perjury, which can create many serious problems for the NP.
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Reducing deposition anxiety

NPs can reduce their exposure to malpractice liability by incorporating good interpersonal skills into their interactions with patients and families. Assessing risk factors can allow providers to have a realistic understanding of their potential exposure and incorporate strategies into best practice management.

An excellent self-assessment tool has been prepared by CNA Financial.7 The free tool includes information topics on clinical specialty, scope of practice, assessment, diagnosis, treatment and care, medication prescribing, competencies, patient-care equipment and supplies, professional conduct, and documentation practices.

When NPs are involved in lawsuits, they can expect to testify at a deposition. Depositions are a critical stage of litigation and can affect the outcome of a suit. The process can be stressful, but the anxiety can be reduced with adequate preparation and effective legal counsel.

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REFERENCES

1. CNA Financial. Qualitative nurse practitioner work profile survey. 2012. http://www.nso.com/pdfs/db/NP_Work_Profile_Survey_2012.pdf?fileName=NP_Work_Profile_Survey_2012.pdf&folder=pdfs/db&isLiveStr=Y.
2. Nurses Service Organization. Nurse practitioner 2012 liability update: a three-part report. 2012. http://www.nso.com/nursing-resources/claim-studies.jsp.
3. Butler K, Lostritto M. Malpractice 101: strategies for defending your practice. J Radiol Nurs. 2015;34(1):13–24.
4. Monroe KM. Producing a nurse witness in a medical malpractice action: a practical guide. NY State Bar Assoc Health Law J. 2013;18(1):26–29.
5. Phillips E, Stark SW. Stepping up to be an expert witness. Nurse Pract. 2013;38(10):8–11.
6. Brenner I. Your malpractice advisor: eight things to never do at your deposition. Medscape. 2010. http://www.medscape.com/viewarticle/730950_2.
7. CNA Financial. Risk control self-assessment checklist for nurse practitioners. 2012. http://www.nso.com/pdfs/db/NP_RM_Checklist_2012.pdf?fileName=NP_RM_Checklist_2012.pdf&folder=pdfs/db&isLiveStr=Y.
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