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Transcript – Episode 9: The 5 Cs in the Big D – Deposition

Avoiding Malpractice Tips

Resources and References

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Hello everyone. Thank you for joining the podcast today. This is Phil Lawson, Vice-President of Product Development and Risk. Today we will talk about the five Cs and the big D. The big D is the deposition and the five Cs are confidence, concise, clear, courteous and careful.

But before I begin I must say that you healthcare professionals are to be congratulated for the noble work that you do and be recognized for the positive difference that you bring to people’s lives every day. You are all human change agents, helping people throughout all walks of life, making life better. There’s no greater cause than your passionate and skilled contributions to people. That is why we have your back here at the Risk Retention Group that the policyholders own that is insuring them. We are dedicated to your wellbeing and to your protection.

Our nation truly values your services now and into the future, as shown by the following statistics. You may be interested to know that the US Department of Labor, Bureau of Labor Statistics, in 2016 forecasted the following to occur for the next 10 years, through 2026.

The healthcare field is booming. A look at the fastest growing 30 occupations of all occupations in the country indicate that eight are in the allied health sector. This sector contains a variety of healthcare and behavioral healthcare workers working in a wide variety of related occupations and therapies. These eight occupations account for 5 million workers today and over 13 million workers in 10 years, with is a 32% growth rate over the decade. That’s four times the average growth rate compared to all occupations in the United States, so you are working in a truly growing, important, and highly valued field.

Now the five Cs and the big D, deposition, really deals with avoiding malpractice. These are tips for healthcare workers to manage risk. You’re an expert in your profession. As such, you will probably be required at some time during your career to testify pursuant to a deposition request. We call this the big D, deposition. You are an expert professional. You must testify like an expert, and therefore you must prepare like an expert.

A deposition is part of the sworn testimony within the pretrial discovery process of a lawsuit. It’s usually not done in a courtroom. It’s usually done in an attorney’s office or some other office. It most often takes place in the lawyer’s office though representing the plaintiffs. As the despondent, your responses are documented verbatim for the court records as testimony evidence. You could also be a witness.

Even pauses, when an “um” or “ah” is breathed by a despondent, they are captured by the stenographer, which could raise doubt about honesty in an answer. Although it is the judge’s decision to admit into evidence, the deposition typed by the court reporter, who is the stenographer in this case, can be supplemented with video and audio recording.

Remember that the plaintiff’s lawyer uses video to show body language inconsistencies or nervousness on your part, which is useful if the despondent’s answers, your answer for example, does not support what the plaintiff’s lawyer wants to hear.

Always expect the plaintiff’s lawyer to have a theme, and that theme is the pathway to win the case for the plaintiff. It’s as simple as that. As such, while establishing case facts through direct questioning of you the plaintiff’s lawyer will try to lead you down a preferred path into a specific story, regardless of being accurate or not, and box you in so as to support that story.

If you or your employer are a target defendant in the lawsuit, then you are heading for the box. The plaintiff’s lawyer will paint a picture that undermines your credibility and surface any inaccuracies at all in order to gain as much support as possible for the preferred theme. In other words, get you in the box to support the plaintiff’s lawyer’s theme.

So what do you do? Well, first this is why it’s imperative that you carry your own professional liability insurance policy. That’s first and foremost. Make sure that policy has a generous benefit and limit, such as the Risk Retention Group’s professional liability policy that has a $5,000 sub-limit and $35,000 aggregate sub-limit deposition coverage for you, along with a nationwide panel of specialty lawyers available to you that most insurance carriers do not have.

Second, here are some tactics to include in your defense strategy. The key point is that you must understand the theme of the case, formulate your defense, and know every allegation and any potential allegation that is targeted against you. You must know how to respond to each one in your defense.

Preparatory sessions with your lawyer are critical. Make sure that you meet with your lawyer provided by your insurance carrier face-to-face and several times for coaching sessions, particularly if you have any vulnerability. Always bring your patient charts and records that pertain to the plaintiff. Very frequently the plaintiff’s lawyer focuses on the plaintiff’s chart to identify and exaggerate treatment care inconsistencies. Again, they’re trying to box you in and look for loopholes.

As a matter of good clinical practice, you must make sure that you keep the patient’s chart updated during treatment. However, if that does not occur your lawyer will develop a mitigation plan and tell you how to respond to potentially damaging questions.

Many time the informal patient care orders and phone orders by the doctor or supervisor are complied with but they’re not entered into the chart until after the fact. Juries understand that filling in the blanks in paperwork or entering late updates in the patient’s chart after care is administered do not render care as inadequate. There is always a driving force between malpractice, neglect, and an adequate standard of care. The theme of plaintiffs’ lawyers is to drive you down the malpractice pathway in order to win the case.

Remember these five Cs when undergoing a deposition, the big D, confidence, concise, clear, courteous and careful. When undergoing a deposition utilize these five characteristics in your testimony. Here’s a short list of best practices.

Number one, tell the truth. Number two, listen carefully, answer very carefully without impulse response as a confident professional, and offer a clear and crisp courteous response. This is not a timed speed exam, so set the pace and be comfortable.

Three, only answer the question. Do not add unnecessary detail. Four, stop the talking the instant that your lawyer objects. Five, do not look at your lawyer upon each question asked, because it is your testimony. Six, if you do not know the answer to the question say so. Seven, if you require clarification of the question just ask. They’ll repeat it. Eight, if you need a break ask for a break.

There is no doubt that healthcare work is a noble profession with implicit values of service, general health, human dignity, integrity and clinical competence. Despite all of the severe and sincere devotion provided by healthcare workers, and whether or not they’re employed with an agency or by a company or even as an individual, they must thoroughly read their own insurance policies to assess the gaps existing in their coverage.

The healthcare clinical worker is the target when court litigation begins, which starts with the deposition. Remember that the plaintiff’s lawyer has a theme to support the pathway to win the lawsuit and will try to box you in and you may be a target in the cross hairs, which can hurt your reputation and your future practice, so carefully and thoroughly plan a deposition mitigation defense with your lawyer provided to you by your Risk Retention Group professional liability insurance carrier.

Thank you for listening, and that concludes our podcast today.

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