Handbook Contents Introduction Risk management Insurance program Legal system Medical records Incident reporting Physician-patient Informed consent Infectious disease Confidentiality Patient's rights Risk Home Page

Depositions and Interrogatories Depositions and interrogatories are often the most important part of the discovery process, especially for an individual defendant. A deposition is a formal legal process whereby oral testimony is taken, under oath, in the presence of a court reporter. Depositions may take place in an attorney's office or in an appropriate room in the medical center, with the attorneys representing all parties involved in the litigation present. Generally, all of the parties in the lawsuit will be deposed, and on occasion, the deposition of non-party fact witnesses and experts will be taken. Any physician, nurse, other health care provider and medical center current or former employee scheduled to be deposed will meet with defense attorneys prior to testifying. At this meeting, your attorney will discuss the case, the medical records, and the procedural rules of the deposition. Remember, a deposition is an adversarial procedure that is in the area of expertise of lawyers, not health care professionals. Attorneys who specialize in the medical malpractice field have an excellent working knowledge of medicine, with some having extensive expertise in certain specialties. Therefore, although some questions posed may appear to be innocuous, they may be phrased ambiguously or duplicitously to elicit extremely damaging admissions. Always remember that the goal of the plaintiff's attorney is to gain admissions and/or inconsistencies in the testimony to support allegations that an accepted standard of care was breached. Your attorney will prepare you for the type of questions that may be asked and the best way to answer such questions. Some guidelines to remember when testifying include: Do not volunteer information or attempt to answer questions outside your area of expertise and/or knowledge. The purpose of your testimony is not to educate the plaintiff's attorney. If you do not know the answer to the questioned asked, do not guess. State you do not recall or do not know. If you do not understand the question, say so. Ask if the attorney can rephrase the question or define a term in a manner you can understand. Do not hesitate to ask to refer to the medical records during your testimony. Always remain calm and composed. Never become argumentative with adversarial counsel. Take your time in answering the question. If you become tired or confused, ask if you can take a brief recess. During a deposition you must answer audibly; a shake of the head or an umm will elicit a reminder from the court reporter. Following your deposition, the court reporter will send a written record of your testimony, called a transcript, to your attorney. It is unusual for a court reporter to record the testimony of a witness without some errors or omissions. Your attorney will provide you with a copy and ask you to review it in order to note any errors or inaccuracies which should be corrected. It is important that you carefully review the transcript since once you verify that it is an accurate version of your testimony, it functions as your sworn testimony. The testimony of a witness at a deposition can be introduced as evidence at the time of trial, and, if the testimony of a witness during trial differs from that given at deposition, the opposing party will use such discrepancies to impeach the credibility of the witness. Interrogatories are a series of written questions propounded by one party upon another to obtain factual information. Answers to the interrogatories are prepared, in writing, and when sworn to, the written responses may be used as evidence at trial. Counsel representing the plaintiff(s) and defendant(s) will consult with the client and prepare the answers to the interrogatories. Interrogatories are commonly used in Connecticut and can be a valuable tool in fact gathering during the discovery process. The Trial If the defendant(s) decides not to settle the case and the plaintiff decides not to voluntarily withdraw the lawsuit, the case will be scheduled for a trial. When the case is tried, the plaintiff is required to present his or her case first followed by the defendant(s). The trial proceeds in the following chronological order: Selection of the jury. Opening statements (the plaintiff first followed by the defendant[s]). The plaintiff's case (testimony of the plaintiff, testimony of any subpoenaed defendants, testimony of fact witnesses and the testimony of any expert witnesses for the plaintiff). The defendant's case (testimony of the defendant[s], testimony of fact witnesses and the testimony of any expert witnesses for the defendant[s]). Closing statements (the plaintiff first followed by the defendant, with the plaintiff allowed a final rebuttal). The judge's instructions to the jury. Jury deliberations. The jury's verdict. The role of the judge is not to decide whether a defendant is negligent, but to see that the trial is conducted in a fair and impartial manner and to rule on matters of law. It is the responsibility of the jury, after considering the evidence, which consists of the witness testimony, medical records and any other exhibits allowed into evidence by the judge, to render a verdict either in favor of the defendant(s) or plaintiff. The civil jury in Connecticut State Court is comprised of six jurors and usually two alternates. During opening statements, the attorneys representing the plaintiff and defendant(s) will provide the jury with an overview of the case and the facts they intend to prove or disprove during the trial. The plaintiff, by law, has the burden of proving that a defendant departed from accepted standards of care and that this departure was the proximate cause of an injury. The plaintiff will present his or her proof first, usually by the testimony of witnesses and experts, as well as the introduction of records and documents into evidence. Following the direct examination of a witness by an attorney, opposing counsel is entitled to cross-examine the witness. During closing statements, the attorneys representing the parties have the opportunity to summarize to the jury the evidence they have offered to prove their case or rebut that offered by the opposing side. Like the opening statements, the plaintiff is the first to present arguments to the jury, followed by the defendant(s), with the plaintiff having a final rebuttal opportunity. During the closing arguments, it is common for the attorneys to comment on the credibility of the fact and expert witness testimony the jury has heard, and to suggest to the jury which witnesses they should find to be the most credible and convincing. Following closing statements, the judge will instruct the jury on the law and how they should apply it to the evidence they have heard and seen. This is commonly referred to as "charging" the jury. Following being charged by the judge, the jury will be sent out to deliberate. Often, a number of questions will be presented to the jury on a written verdict sheet, and they will be asked to render a verdict on each question. All six jurors must agree in order for a verdict to be reached. If a jury renders a verdict in favor of the plaintiff, they will also be instructed to award monetary damages, and when there are multiple defendants, apportion the damages among them. Should the jury find in favor of the defendant(s), unless the plaintiff appeals, the lawsuit has ended. The judge may overturn a plaintiff's verdict or reduce the amount awarded. A defendant has the right to appeal when a verdict in favor of the plaintiff is rendered. Federal and State Governmental Agencies The conduct of hospitals, physicians and other health care providers, has come under increasing scrutiny by federal and state regulatory agencies. Some agencies are responsible for collecting and maintaining data regarding medical malpractice settlements and disciplinary actions taken against licensed health care professionals, while others are charged with the responsibility for investigating patient complaints regarding medical treatment. The activities described above usually occur outside the civil legal system, but are closely related to it. The establishment of the National Practitioner Data Bank ("NPDB") was mandated by the Health Care Quality Improvement Act of 1986 ("HCQIA") and responsibility for its implementation and management resides with the U.S. Department of Health and Human Services. The act was passed by Congress to encourage good faith professional review activities and restrict the ability of incompetent physicians and licensed health professionals to avoid discovery of prior substandard or unprofessional conduct by mandating the reporting of specific information. The HCQIA requires: 1) health care entities and State Boards of Medical Examiners to report certain information to the NPDB, and 2) hospitals and health care entities to request information from the data bank in various situations. Some of the information which must be reported to the NPDB includes: The payment of a medical malpractice claim settlement made on behalf of a licensed heath care professional. Sanctions taken by licensure boards against health care professionals. These include license revocation, suspension and restriction, as well as any suspension, censure, reprimand or probation due to professional incompetence. Actions taken by health care facilities against physicians and dentists that adversely affect that provider's clinical privileges for more than 30 days and which are based on professional conduct or competence. Some of the information which must be requested from the NPDB includes: Hospitals are required to request information on every physician and other licensed health care professional who applies for a position on its medical staff (courtesy or otherwise). In addition, the hospital must request information for physicians and other licensed health care professionals on its medical staff or having clinical privileges every two years. The Connecticut Department of Public Health and Addiction Services is responsible for investigating complaints by patients and others regarding medical treatment rendered by both health care entities and individual physicians, nurses and other licensed health care professionals. Any individual receiving a notice from the state indicating it is investigating a complaint should treat it with the utmost seriousness, since an investigation with adverse findings could affect the status of a practitioner's license. Should you receive such a notice, you may wish to consult with the Office of Legal Affairs for advice on how to handle the matter. Potential Legal Action or Governmental Investigation If any health care provider or hospital employee learns of an incident or complaint that may lead to legal action against the hospital or a staff member, that person should immediately notify the Office of Legal Affairs. The person reporting the potential action may be subsequently contacted by a representative from the Office of Legal Affairs regarding the matter. Hospital personnel should not speak with attorneys or investigators who are not affiliated with the hospital regarding any matter involving the hospital unless specifically authorized by the Office of Legal Affairs. Questions as to whether a person is a hospital representative or for other guidance should be directed to Office of Legal Affairs. Reporting Professional Misconduct The hospital is required by law to report to the Department of Public Health the termination or restriction of staff privileges of any licensed physician. In addition, physicians and hospitals are required by law to report to the Board of Medical Examiners any information which appears to show that a physician is or may be unable to practice medicine with reasonable skill and safety. The Board will then make its own investigation. While this reporting may be prescribed by law, it should also be considered by such practitioners as a moral and ethical obligation. Should you become aware of information regarding the professional misconduct of a physician, contact the Office of Legal Affairs.