Mandi Karvis, Esq., Partner at Wicker Smith O'Hara McCoy & Ford, PA
Print - Fall 2022
You have received a Subpoena, Notice of Deposition, or a letter requesting your deposition, now what? You should take immediate action upon receipt of either one of these things, as time is of the essence, especially if you received a document that has actually scheduled your deposition already as opposed to simply requesting it. Depending upon the circumstances in which your deposition is being sought you may wish to reach out to your malpractice insurance carrier to determine if you have coverage available for this type of scenario. Physicians often have a form of supplemental coverage as part of their malpractice insurance, which provides for appointment of an attorney to represent you at a deposition.
There are numerous advantages to having an attorney, beyond the obvious one of just making sure that you are adequately preparedand protected. Appointment of counsel can make the inventible scheduling hassle that will ensue much easier as your attorney’s officecan take over coordinating calendars of the various involved parties. Additionally, once you have an attorney, they can review the letter/notice/subpoena to determine if there is any legal basis to object and seek to preclude you from having to testify. Furthermore, yourattorney would meet with you to prepare for your deposition and attend your deposition to further protect your rights and provide legal advice and counsel during the deposition.
Being Deposed as a Treating Provider
“What should you do if you do not have coverage through insurance for an attorney?” You can do some things on your own to make sure that you are protected and prepared for your deposition. First and foremost, you will want to determine your role in the underlying case and why the parties are seeking to take your deposition. If you are not a party to any sort of lawsuit and are not offering expert testimonyin the case, then are you likely involved as a treating provider to the plaintiff in the underlying action. In the event that the patient’s name is not familiar to you, you will want to check your EHR to develop an understanding of when you saw the patient, what for, and for how long they were your patient. Once you know your role in the underlying care, you can better determine the scope of your anticipated testimony. As a treating physician, you are strictly considered a fact witness and cannot be expected to offer testimony beyond that role. As such, your questions should be limited to questions regarding the care and treatment that you provided and the conclusions that you reached in your capacity as a treating provider. You are not required to and should not be asked hypothetical questions which call for expert testimony. The Arizona Court of Appeals has confirmed the scope of questioning of a treating physician.
Logistics - Timing, Payment, Location
“How long can my deposition last?” If the underlying case is filed in State Court in Arizona, the presumptive limit for any deposition is four hours. If the case is filed in District Court, the presumptive limit is eight hours.
“Can I get paid for my time?” Unfortunately, the answer to that question is most often “no” as the Arizona Court of Appeals has also issued an opinion on that issue. As a professional courtesy, some attorneys will agree to pay you a reasonable hourly rate for your time, but they can also legally refuse to pay you per the Court of Appeals holding.
“Can I make them come to my office?” You can request that the deposition be held at your office if you have adequate space to allow all the attendees to participate. They do not have to agree to conduct the deposition at your office and more often than not it will be held at an attorney’s office or a court reporting office.
Basic Tips and Tricks
If you are not going to be represented by counsel at the time of your deposition, you should keep a few basic tips in mind. Only answer the question that is asked of you, do not volunteer more information. Answers like “yes, no, I do not know, and I do not remember” are perfectly acceptable answers as long as they are truthful. Make sure you understand the question that is being asked. One trick to use is to repeat or paraphrase the question back to the attorney “What I think you are asking me is….”. The good news is that most of the time, a deposition is an open book test, meaning you can refer to your notes. Many times, by the time your deposition is requested you do not have independent recollection of the patient and must rely solely on your records. If you do not remember anything about the patient beyond what is contained in your records, you can tell the attorney that you have to rely on your records aside from instances where you can testify as to what you did based upon your habit and custom because that is the way you always do things in your office. For example, you may not remember performing a physical examination of the patient at the time of the initial visit, but you know that you did based upon your habit and custom because you always perform a physical examination at the time of the initial visit.
A deposition is an exercise of patience and active listening. Whether with the assistance of counsel or on your own, it is wise to do some focused preparation for your deposition, which at a bare minimum should include reviewing your records. Remember that you are under oath and your primary obligation is to tell the truth.