Mastering Medical Malpractice Depositions: A Guide for Attorneys

Medical malpractice cases are some of the most complex and high-stakes legal battles attorneys handle. At the heart of these cases are medical malpractice depositions, where the testimony of doctors, nurses, expert witnesses, and plaintiffs can make or break the case.

A well-conducted deposition can uncover crucial facts, expose weaknesses in the opposing side’s arguments, and set the stage for a favorable settlement or trial outcome. But mishandling a deposition can lead to damaging testimony that weakens your case. If you're preparing for a medical malpractice deposition, here’s what you need to know.

Understanding the Purpose of Medical Malpractice Depositions

Unlike routine discovery, depositions in medical malpractice cases serve multiple functions. They allow attorneys to:

• Assess the credibility and demeanor of key witnesses.
• Lock witnesses into sworn testimony that can be used later.
• Identify inconsistencies between medical records and testimony.
• Extract expert opinions that clarify medical procedures and standards of care.

Attorney Takeaway:

Use depositions strategically. Don't just collect information—shape the narrative that will benefit your client at trial or settlement negotiations.

Preparing Your Client for Deposition

For plaintiffs, medical malpractice depositions can be intimidating. They may face tough questioning about their medical history, lifestyle, and treatment. A poorly prepared client can inadvertently harm their case.

Key Preparation Tips:

• Review Medical Records Thoroughly: Ensure your client knows their medical history inside and out.
• Anticipate Tough Questions: Defense attorneys will probe for inconsistencies or alternative causes for the alleged harm.
• Practice Clear and Concise Answers: Plaintiffs should avoid speculation and stick to the facts.

Attorney Takeaway:

Hold multiple prep sessions with your client. A confident and well-prepared witness can significantly strengthen your case.

Questioning Medical Experts and Defendants

In medical malpractice depositions, expert witnesses play a crucial role. They establish whether the defendant met the accepted standard of care and whether a deviation from that standard caused harm.

Key Areas to Cover:

• The expert’s qualifications and experience.
• Their opinion on whether the defendant deviated from the standard of care.
• Any conflicting medical literature or studies.
• Alternative medical explanations for the plaintiff’s condition.

For defendant doctors and medical professionals, focus on:

• Their recollection of the events in question.
• Protocols and procedures they followed.
• Any potential biases in their documentation or testimony.

Attorney Takeaway:

Approach expert depositions with a clear strategy—anticipate opposing arguments and craft questions that expose inconsistencies or weaknesses.

Handling Objections and Defense Tactics

Expect defense attorneys to make frequent objections, especially if the questioning becomes too aggressive or veers into areas of speculation. Common objections include:

• Form: The question is confusing or misleading.
• Foundation: The witness lacks sufficient knowledge to answer.
• Relevance: The question doesn’t relate to the core issues in the case.

Attorney Takeaway:

Stay composed and push back where necessary. Don’t let excessive objections derail your line of questioning.

Using Deposition Testimony at Trial

Well-conducted medical malpractice depositions provide a wealth of material for trial. You can use deposition testimony to:

• Impeach witnesses who contradict their earlier statements.
• Support motions for summary judgment.
• Highlight inconsistencies between medical records and live testimony.

Attorney Takeaway:

Treat depositions as a rehearsal for trial. Every question and answer should serve a purpose in building your case.

Example of Medical Malpractice Deposition

This is the deposition of a gastroenterologist who served as an expert witness for the defense in a wrongful death medical malpractice case. In this case, the patient was admitted to the hospital with kidney problems. Once he got to the hospital, he developed very high potassium levels and was given Kayexalate, which quiickly removes potassium from the body. That's when things went south—the patient developed colonic necrosis, a rare but easily avoidable side effect of Kayexalate.

Watch the video to see how a medical malpractice deposition works:

Final Thoughts

Mastering medical malpractice depositions requires preparation, strategic questioning, and a deep understanding of medical and legal issues. Whether you’re deposing a medical expert, preparing a client, or challenging a defendant’s testimony, a well-executed deposition can set the foundation for a successful case outcome.

By treating depositions as more than just a discovery tool—but rather as an opportunity to build and refine your case—you can gain a significant advantage in any medical malpractice litigation.

Medical Malpractice Depositions FAQs

What is the main goal of a medical malpractice deposition?

The goal is to gather sworn testimony that can be used to assess liability, establish the standard of care, and prepare for trial.

Who is typically deposed in a medical malpractice case?

Depositions often involve plaintiffs, defendant medical professionals, expert witnesses, and sometimes hospital administrators or staff.

Can deposition testimony be used at trial?

Yes. Depositions can be used for impeachment, evidence presentation, and highlighting inconsistencies in witness testimony.

How long do medical malpractice depositions last?

Depositions can range from a few hours to multiple days, depending on the complexity of the case and the number of witnesses involved.

What happens if a witness contradicts their deposition at trial?

Contradictory statements can be used to impeach the witness, casting doubt on their credibility and strengthening your case.