In most cases, defendants in medical malpractice cases have control of the facts. The plaintiff’s counsel must depose defendant physicians effectively by establishing the following information and thereby controlling the issues to be tried.

(1) Defendant’s education, training, qualifications and hospital affiliations.

(2) The extent of defendant’s recollection of the patient and the course of treatment, without reference to the records. All details should be recalled. Remember, one must be aware of the need to foreclose, to the extent possible, eleventh hour testimony about events and circumstances not in the records. The temptation for the defendant to testify to tests, examinations and other alleged circumstances not heretofore disclosed so as to meet possible criticism is great. Plaintiff’s attorney must see to it that the defendant unburdens himself fully at the deposition; all potential surprises must come to light here.

(3) The occasion when the defendant first saw the patient.

(4) The medical history that the defendant received, including the questions the physician asked to secure this history and the medical significance that the physician attached to the history.

(5) The examination the defendant performed, in detail — not differently a statement of the findings. Eventually the doctor is going to say that his examination included things he did not record because the results of these unrecorded tests were normal. Counsel should obtain the complete examination in detail. For example, if the physician says he did a neurological examination, get the details. A complete neurological examination takes 30 minutes. Unless the doctor is a neurologist, his neurological examination was probably completed in 30 seconds.

(6) The tests the defendant performed, the results and the medical significance thereof.

(7) The defendant’s findings and the medical significance of each finding.

(8) The differential diagnosis and the basis of the diagnosis. In doing a differential diagnosis, a physician will list all the possible diagnoses, more or less, in order of probability.

(9) The defendant’s advice to the plaintiff, including all conversation. This will preclude the doctor from later saying that the patient disobeyed instructions or did not come back or was a chronic complainer, etc.

(10) The treatment, the reason for each aspect of treatment and what the doctor hoped to accomplish thereby.

(11) The defendant’s opinion as to any available communications from other doctors, in the form of letters, reports or hospital communications, such as progress notes, consultation reports, or x-ray reports, and the medical significance the defendant attached to the findings and conclusions of other doctors.

(12) The surgery, if performed, in detail. The surgeon must relate every aspect of the operation, minute-by-minute, tissue-by-tissue, structure-by-structure. The surgeon should not be allowed to merely read the operative report. Medical records are often inadequate. If the defendant is allowed to repeat at deposition the superficial descriptions contained in the medical records, you may have an expert who will tell you that something went wrong that shouldn’t have gone wrong but he can’t tell you what, how or why. Your case will end up getting your case dismissed. For example, in a Mississippi Erb’s palsy case, [FOOTNOTE 1]plaintiff’s expert testified that the delivery records were inadequate, that Erb’s palsy shouldn’t occur, that it happened from trauma, but he couldn’t identify any particular departure that caused the injury. The action was dismissed. However, proper preparation may avoid this outcome. In a Massachusetts case, [FOOTNOTE 2]plaintiff’s expert was able to detail the departures from standard procedure because somebody at deposition had forced the defendant to describe each moment of the delivery in detail. The plaintiff avoided dismissal because of the care taken in the deposition of the defendant doctor.

The questions to ask the defendant surgeon in the deposition include: did he know of any precautions that would have prevented the injury? If so, did he employ them? If not, why not? If he did employ them, why did they fail?

(13) The defendant must be tested on the alternative treatment or diagnosis the plaintiff alleges should have been used. If the defendant states that he did not consider the alternatives, this is a damaging admission. It means he did not think, and can no longer employ the most powerful defense tool: the physician’s judgment. Judgment implies the use of intelligence to consider the alternatives. If the defendant did consider alternative diagnoses or treatments, the next question goes to the reason for rejecting the alternatives. The case will eventually turn on the substantiality of the defendant’s reasons for rejecting the alternate courses. If the plaintiff’s attorney has done his homework, the dispute will always be factual. It will not be over the question of the appropriate standard. It is poor defense tactics to rely on the contention that even if the defendant did “more” or “better” the result would have been the same. It is therefore likely that the defense will contend that some aspect of the facts makes the plaintiff’s choice of alternatives inappropriate. The case finally will turn on which facts should be considered.

Counsel should repeat all of the above steps for each contact between the physician and the patient in the office, home, or hospital. In addition, copies of the physician’s records should be secured and should be marked for identification.


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