The art of the deposition: Teaching residents about medical liability

Medical school provides the knowledge and lays the foundation on which physicians build their professional careers. Residency is where surgeons learn how to operate and practice surgery, applying the textbook knowledge acquired in medical school to clinical situations, and it is where they learn how to care for patients in a variety of settings. Some surgeons pursue additional training via fellowships, while others graduate and decide to enter the workforce, ready to tackle their new roles as attendings.

All of this rigorous training prepares surgeons to practice surgery and provide quality care, but it doesn’t prepare them for the realities of running a practice. This article describes how one institution, Maricopa Medical Center, Phoenix, AZ, prepares surgery residents for the possibility of being deposed or for being a defendant in a medical liability lawsuit.

Insufficient preparation

Many institutions and organizations, including the American College of Surgeons, supplement resident education with training in the areas of finance, professional liability, insurance, and other topics relevant to practice management. Many residency programs also try to address these topics in day-to-day training and provide some real-world scenarios that can help prepare residents for the business realities of surgical practice.

Training institutions also have morbidity and mortality (M&M) conferences, which encourage surgeons and residents to take responsibility for the role in a negative outcome or a near-miss and provide an opportunity for colleagues to learn from the experience. Sometimes at these M&M meetings, attending surgeons and residents discuss the importance of documenting our actions with the same gravitas that we discuss the actions themselves in order to emphasize the need to record information in a patient’s chart.

Unfortunately, even with this emphasis on recording patient information, residents walk away from these meetings without a full understanding of the importance of documentation in determining the outcome of a medical liability lawsuit or as evidence for use in a deposition. With that in mind, the surgical residency program at Maricopa decided to inject a bit of the real world—specifically the realities of medical liability—into its resident training.

Mock deposition at Maricopa

For one of our grand rounds, we invited an attorney, Kenneth D. Goldberg, Esq., senior counsel of the Chartwell Law Firm, LLP, New York, NY, to speak on the topic of medical professional liability and how surgeons can best prepare to defend themselves if they are ever sued for liability. Mr. Goldberg, a co-author of this article, has more than 40 years of experience preparing defendants for both depositions and trials.

In addition to Mr. Goldberg’s lecture, we presented a mock deposition. To show our residents what it is like to be a defendant in a medical liability case, one of our chief residents was “served” with a summons to appear at the grand rounds to be deposed on an actual case in which he had participated. For the record, there was no issue with the case itself, but it provided enough material to serve its purpose as an educational opportunity. In essence, this experience became an amplified public mock oral.

In all, 20 minutes of the two-hour grand rounds were devoted to this mock deposition. We attempted to make this vignette as realistic as possible, with obvious limitations. Mr. Goldberg was given few details about the case—just enough to allow him to ask pertinent questions, which the attending staff helped to shape. The chief resident did not get a chance to meet with an attorney to “prepare” for the deposition, nor did he have a chance to review the chart until the day of the deposition. This situation would rarely occur in reality. Liability lawyers typically spend significant time preparing a defendant for questioning. However, in this situation, we wanted to amplify the experience to educate the residents and emphasize the necessity of preparation before walking into a deposition or a medical liability trial. The audio of the entire grand rounds program, including the mock deposition, was recorded and archived for future teaching purposes.

The chief resident sat in the front of the room while Mr. Goldberg questioned him. The entire department of surgery was present, including the attending faculty, residents, medical students, advanced nurse practitioners, physician assistants, and support staff. A hospitalwide announcement was issued, and members of the department of anesthesiology (anesthesiologists and certified registered nurse anesthetists) also were in attendance.

Mr. Goldberg prefaced the deposition by providing the attendees with a background in legal concepts. He then began this deposition by asking background questions and learning more about the witness. The chief resident did well initially. He is a well-spoken, well-respected resident leader who has always been known as a patient advocate and talented clinician and surgeon. However, the chief resident got confused and started changing his answers when the attorney asked about the resident’s involvement as a witness in another medicolegal case. Instead of asking for clarification or taking a minute to collect his thoughts, he continued forward, unsure of his answers, and changed them as he was asked additional questions. It was obvious he also was nervous, and the purposeful lack of preparation had its effects. Just three minutes into the deposition, Mr. Goldberg caught the chief resident in a contradiction. The resident first stated that he did not know about any other witnesses in that previous medicolegal case, then quickly stated that he did know about them.

At no time did Mr. Goldberg raise his voice, nor did he press the chief resident to answer a question or intimidate him in any way. The witness was asked general questions, with follow-up questions after every answer. Yet, once that first misstep occurred with the chief resident, the deposition took a more challenging turn.

When it came to the actual case itself, the chief resident was provided with the patient’s chart to review. With some simple questioning about timing of the case and details of what occurred as compared with what was actually documented in the patient’s chart, the chief resident seemed to return to his previously confident state, and he began to agree with Mr. Goldberg’s characterizations. What is notable here, however, is the fact that in a relatively brief 20-minute period, this honest, reliable, well-respected chief surgical resident was made to appear confused, unsure, and, worst of all, dishonest and unreliable.

While it was initially entertaining for the residents to see one of their fellow residents on the stand, they soon realized how difficult it can be to be a defendant in a medical liability lawsuit. In discussing the mock deposition with the residents, we discovered that many had the same reaction: they want to avoid being placed in a similar position, and many described it as a “scary” and “horrifying” situation. An initial reaction like this is expected. The take-home message for residents and everyone who attended the mock deposition is that we must document everything we do in the delivery of patient care and not rely on memory or hearsay.

Following up on concepts conveyed

According to Mr. Goldberg, a deposition is not a hunt for the truth. Rather, it is merely an opportunity to determine the facts of the case. You do not win or lose in a deposition. You are not there to make your case and change someone’s mind. You are there to recount the facts of the case. Physicians, especially surgeons, seem to have a natural inclination to try and explain their actions at every opportunity, and that tendency is something attorneys use to their advantage.

Mr. Goldberg offered an example of how attorneys can use a proclivity for over-explaining to their advantage. An attorney might ask, “Did you speak with Dr. Jones last week?” An individual may be tempted to respond by saying, “No, I did not speak with Dr. Jones last week.” In fact, in this context, that is the wrong answer. It is wrong because it sounds like the respondent did speak with Dr. Jones, just not that previous week, thus providing an avenue for the attorney to follow up with more questions regarding other interactions with Dr. Jones. The correct answer for this question is a simple, “No.”

The grand rounds concluded with a discussion describing the type of answers that are not advisable in this context, including the following:

  • Explaining one’s thought process
  • Providing information one does not know by guessing
  • Volunteering to discuss documents the questioner has not addressed
  • Volunteering answers to questions that have not been asked
  • Testifying as to what other people know

Mr. Goldberg also described how to respond to situations in which the defendant is expected to share personal information. He underscored the importance of preparing for a medical liability case, advising that a defendant meet with his or her attorney to discuss their testimony before going to trial.

The residents got a firsthand view of what could happen at a deposition—one that is very different from what they’ve seen in film or on television. They saw how the simplest questions can unravel someone’s credibility, which underscored both the need for preparation beforehand and the importance of proper documentation in the medical record.

More often than not, surgical residents still exist in the limited world of surgical training, and despite hearing about what can happen to them once they leave that protected space, a more meaningful teaching method is to demonstrate what can happen. Some residents, unfortunately, will experience realities like participating in a deposition during training, since they can be named as defendants in a medical liability lawsuit. Others have been called as witnesses for trauma cases, like the chief resident in the mock deposition at our institution, but he quickly realized that being a defendant is an entirely different experience.

The better we prepare residents to manage their involvement in a medical liability deposition or lawsuit, the better positioned they will be to succeed in all aspects of their career. This mock deposition approach was a new teaching experience for our department, and we were unsure how it would be received. Fortunately, we found that this learning exercise was effective for both the residents, as well as for other members of the department.

Lessons learned

If another residency training program is considering organizing a mock deposition training exercise, we suggest the following guidelines:

  • Plan on allotting at least two hours to complete this exercise. Maricopa did not have an M&M conference the day of this presentation, and instead focused on the grand rounds. This schedule allowed ample time for discussion and for the mock deposition. The timing of the exercise also made it possible for our night team residents to participate without violating duty hour restrictions.
  • Participant buy-in is key. Carefully select the person who will play the defendant. The chief resident we chose understood his role and was comfortable with what was going to happen during the exercise. He even came to grand rounds wearing a suit in order to have the appearance of an actual defendant in a liability case. In other words, you need buy-in from your participants if you are going to make it work.
  • Select a lawyer with medical deposition experience. As stated earlier, Mr. Goldberg has 40 years of experience in defense litigation, and he used all of his client preparation tools for our mock deposition. Partnering with an attorney who has extensive experience in preparing physicians for these kinds of depositions and trials is essential.

Surgical education continues to successfully employ simulation to train residents in operative technique—and, as this exercise at Maricopa Medical Center shows, we also can use simulation in a different way to prepare students, residents, and attending faculty for the challenges that medical liability situations present.

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