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Published 5/1/2008
Douglas W. Lundy, MD, FACS

When you’re on the “hot seat”

Tips in answering questions during expert witness depositions

From my first encounter with the tort system, I have been concerned about the lack of formal education that we as physicians have about medical liability litigation. As an orthopaedic traumatologist, I have been deposed as a treating physician on multiple occasions. I am frequently concerned about how my testimony will be interpreted and used, in part because I am unfamiliar with the rules and processes of the legal system. Finding How To Excel During Depositions: Techniques for Experts that Work (SEAK, Inc., Falmouth, Mass., 1999) by Steven Babitsky, Esq., and James J. Mangraviti, Jr., Esq. was a revelation. It is an incredible resource for orthopaedic surgeons who serve as expert witnesses and for those who are defendants in a lawsuit. This book should be a “must-read” for every practicing physician, and an insight into some of the material is appropriate for risk management. I found the chapter on “Answering Counsel’s Questions” especially helpful; here are some tips from it.

Memorize dates
Although many mundane facts can be easily found in the record, Babitsky and Mangraviti strongly recommend that, if you are serving as an expert witness, you commit several important dates to memory. For example, you should know when the case was accepted, the date you first saw the patient, and the date(s) of surgery.

The deposing attorney will certainly ask about these dates and you gain credibility by knowing these facts without having to look them up. You may seek out small details in the chart, but memorize important facts.

Pay attention to your CV
Your curriculum vitae (CV) will be entered as evidence during the deposition and should appear as professional as possible. Review it carefully—and critically—to ensure that it includes no spelling errors or other mistakes.

Pay attention to the organization and timeline in your CV. Education, training, and employment dates should be as exact and precise as possible. The authors strongly recommend that you maintain only one version of the CV and avoid the temptation to have abridged CVs or separate CVs for plaintiffs or defendants.

Tell the truth
I know orthopaedic surgeons who were deposed while they were still board-eligible, prior to being board-certified. They tried valiantly to sidestep the question, “Are you board certified?” with the answer, “I am board-eligible.” There is certainly no shame in being board-eligible, but these surgeons wanted to avoid the appearance that they had somehow failed to fulfill their professional certifications.

Babitsky and Mangraviti believe that the expert witness should freely acknowledge not being board-certified if that is the case. An expert who has failed either part one or part two of the boards in the course of board certification should also concede that fact, if appropriate. Being evasive only makes it look as though the physician is trying to hide something. The jury is more likely to believe a witness who is perceived as truthful rather than one who painfully avoids answering obvious questions.

The authors also recommend not being evasive when answering questions. If you were given inaccurate information, admit this point rather than argue about something that you know is flawed. An expert who appears to testify truthfully and not hide anything is a strong witness. Needless bickering about an obvious issue draws the expert’s credibility into question.

Avoid bias
An expert witness is expected to exercise impartiality. You are there to represent the facts of the case; any perceived bias toward one party or the other will weaken your validity as an expert witness. Opposing counsel (the attorney who did not retain you) may try to demonstrate to the jury that you have an inherent bias toward one of the parties, which can weaken the veracity of your testimony.

A good attorney may also try to demonstrate that you are too inflexible to be an independent expert. You should be able to admit that your opinion could change given more information or in a different scenario.

If you have a personal relationship with an attorney in the case, the opposing attorney may well try to exploit this fact to demonstrate an unfair bias on your part. Physicians who serve as “professional witnesses” may be accused of being “out of touch” because they do not practice medicine in the “trenches” and are nothing more than a mouthpiece for lawyers. Physicians who testify for only one side (plaintiff or defense) may also be perceived as having a biased viewpoint. Physicians who serve as expert witnesses on both sides of medical liability cases may be perceived as being more believable than those who testify only for one side.

Your testimony may also be questioned if you appear to advocate for one of the parties. The attorney is the legal advocate; as an expert witness, you should maintain a neutral role. Let the attorneys argue the legal subtleties of the case. You should remain an independent purveyor of the facts and leave the best interests of the parties in the suit to their respective attorneys.

Exercise professional discipline
Diagnosing and treating musculoskeletal conditions is unique in that several approaches may be effective. Orthopaedic surgeons may disagree at times about the nature of the condition and the treatment options. Be very careful about criticizing other experts. If you say anything critical of another expert’s statements or actions, you may find yourself in the awkward position of having to admit that either the other expert or you are incompetent.

The chapter also contained a lengthy description of how to respond to questions on opinions or authoritative writings, as well as to “catch-all” questions. Those tips will be covered in next month’s “Orthopaedic Risk Manager.”

Douglas W. Lundy, MD, FACS, is a member of the AAOS Medical Liability Committee and editor of the Orthopaedic Risk Manager articles in AAOS Now. He can be reached at lundydw@resurgens.com

The AAOS Medical Liability Committee welcomes your comments and input on Orthopaedic Risk Manager articles. E-mail them to feedback-orm@aaos.org or contact this issue’s contributors directly.