Hello, and welcome to this CME presentation, Risk Considerations with Depositions, Subpoenas, and Court Orders. The content in this presentation is intended solely to provide general information concerning developments in the area of risk management. It is not intended as legal or medical advice, nor does it offer or solicit for offers with respect to any insurance product. Legal or medical advice should be obtained from qualified legal counsel or other professionals to address specific facts and circumstances and to ensure compliance with applicable laws and standards, and listeners should consult their own insurance advisors for information pertinent to the purchase of any insurance product. This content may not be reproduced or redistributed in whole or in part without the prior written consent of Allied World. This activity has been planned and implemented in accordance with the accreditation requirements and policies of the Accreditation Council for Continuing Medical Education through the joint providership of the American Psychiatric Association and Allied World. The APA is accredited by the ACCME to provide continuing medical education for physicians. The AAPA designates this enduring activity for a maximum of one AMA PRA Category 1 credit. Physicians should only claim the credit commensurate with the extent of their participation in this activity. No one in a position to influence course content has anything to disclose. So I'm Allison Funicelli. I am one of the risk management consultants at Allied World. I provide medical professional liability policyholders, including psychiatrists, psychologists, psychiatric nurse practitioners, and physician's assistants with risk management advice. So let's start with our objectives today. So we're going to be explaining what a deposition is and recognize the difference between a court-ordered deposition, the notice of a deposition, and a subpoena for deposition. We're going to evaluate the importance of preparing for and attending a deposition with counsel. We're going to talk about how to employ tips to avoid pitfalls, which may impact the defensibility of a case. And we'll be discussing important steps in responding to subpoenas and court orders. So let's start with what is a deposition? So a deposition is where an attorney questions a witness, either a witness that's to the litigation or a third party to the case, meaning it may be somebody who just has information related to pending litigation but is not specifically a defendant or a party to the action. Or it could be a testimony of a retained expert in the case. And all testimony regarding of what type of witness is being deposed will be done under oath and is deemed to be truthful. A deposition is the opportunity for an attorney to gather information and develop facts leading to potential evidence. It is also a discovery of information from the witness in support of or in contrary to the attorney's allegations or defenses. So in sum, a deposition is a fact-finding mission by obtaining information from witnesses and parties to the pending litigation under oath in support of or in contrast to the case. So who might be present for a deposition? So first off, the plaintiff's attorney, right? That's the person that represents the patient usually in the case or the person that's bringing the action. Your attorney will be present. And that could be true whether you are an actual defendant in a case or you're a third party in the case or you are serving as an expert in the case. And your attorney will typically attend only your deposition if you are a third party. However, if you're a defendant in the case, they would certainly be attending the depositions of all parties. Defendant attorneys may also be present. And that's where there are multiple defendants in a case. So if you were a defendant, your attorney would be present as well as the attorneys representing the other parties. A court reporter will be present. And that's the person that's going to be recording all the testimony that is given. And that testimony may be used later at trial. So the court reporter will also have the testimony transcribed for the attorneys to use in a transcript. And the plaintiff themselves may choose to be present for depositions in addition to their own deposition. Now plaintiffs do not typically attend other parties' depositions, but they have the right to do so if they choose. So appearing for a deposition. So how do parties come to appear to be deposed? And there's several ways that can happen. So typically an attorney interested in taking the deposition testimony of a party will serve that deponent, deponent meaning the person that's about to give testimony, with a subpoena to appear at a specific date and time to give that testimony. However, the attorneys involved in the case may agree to produce their own witnesses for a deposition by agreement without the need of a deposition subpoena. Either way, all parties typically agree upon a date and time for the person to appear. And usually it works within everybody's schedule. Another option is for the court to order the deposition or testimony of a witness through a court-ordered notice to appear. And typically when a judge orders someone to appear to testify, it's not usually optional and the party usually has to appear or be held contempt of court. Sometimes the court will allow the party that's been ordered some flexibility with when they can appear to testify, but they usually will provide a specific deadline. It will depend on the situation. If it's for testimony you're demanded to appear for at a trial, then there may be no flexibility as to when you can appear. So what type of deposition formats are there? So you can see here on the slide, there are four different types I'm going to talk about. An oral deposition is typically conducted in a conference room with counsel present. So usually at one of the attorney's offices. A court reporter will be there to record everything that's said in the room. And an oral deposition can be conducted with a witness, a party to the action, or an expert. Similar to an oral deposition would be the same thing except it would be deemed an audio visual deposition if in fact there will be a camera on so that the person giving testimony can be seen and recorded through video testimony. So again, the same parties would be present, there would be a court reporter present. Sometimes an AV-type deposition is used because maybe the party won't be available at the time of trial, so they're going to show that to the jury, and the jury can see who the witness is. It could be if perhaps the witness, maybe especially a plaintiff in a case who has some medical condition that they may not unfortunately survive at the time of trial. So again, they want to preserve their testimony on camera. And sometimes it can be used to intimidate the party that's being deposed because they'll feel more pressure because they're on video. Now not so common is a telephone deposition or a remote deposition. It's not usually used, especially in malpractice cases. It became a little popular during the pandemic, so there are some continuing using that format, but it is the least used of the types of testimony given. And in a telephone deposition, whoever is giving the testimony, their attorney is usually sitting with them in the room, but the rest of the parties may be located elsewhere and again, just conducting this deposition through a conference call essentially. But again, a court reporter will be also participating and recording the testimony. And then the last type is what's called a 30B6 deposition. Now this deposition follows under the federal rules of civil practice. Now some states have adopted this as their rules as well. So in a federal case or a state that's using this type of rule, this is a case where a person appears on behalf of a corporation. So if your practice, the name of your practice, like ABC Psychiatric Group is also a defendant, they may want to have somebody specific that's usually an owner or somebody who could give testimony related to specifically things related to the practice itself. Also since the practice itself can't testify, someone would be deemed the person that is most knowledgeable to give testimony related to the practices of that organization. So why is a deposition important? So the testimony will follow throughout the case and may be used to impeach a witness later at trial. Say you provided testimony in a prior case, either as a witness or as a defendant or as an expert, and the testimony you provided offered an opinion say on the standard of care of say a similar case to the case that you're about to be deposed in. The plaintiff's counsel will attempt to obtain the written transcript of your prior testimony in other cases to call your credibility into question. They want to see if you're going to testify in a manner that's consistent currently with what you've done in the past. Now there may be reasons why you have a difference of opinion now or there may be some nuances between the two cases that make your testimony slightly different, but again, this is a way that a plaintiff may use prior testimony to discredit you. So you need to be prepared to defend any prior testimony you gave in similar cases, and that should be something you discuss with the attorney representing you. Now sometimes the testimony obtained through a pretrial deposition is used instead of having the witness appear at trial. So again, in that case, an attorney can read portions of the deposition testimony to the jury and it will be read into the trial record instead of the witness appearing. And this process is typically used only when the witness is either not a key witness to the case, so they only need snippets of the information from that deposition testimony, or it may be because a witness has passed away or is unavailable for various reasons to appear. So some considerations with a deposition. So deposition preparation is critical, especially if you're a defendant in a lawsuit. Anticipate that it will take you away from your job or practice from time to time. So you'll need adequate time to review the records and discuss the case with your attorney. Sometimes you may need to review the record on several occasions. If you have never been through a deposition or are nervous, meeting with your attorney several times may be necessary so that you feel fully prepared. Review only the pertinent records of care that you provided and were involved with, and what your defense attorney or whatever attorney it is that's representing you is asking you to review. Don't review other records because then you may be asked questions about it if you reviewed them. So only review the information that you were asked to review. So, for example, you may have looked at records that are from other providers, and then the plaintiff attorney may have a door open now to asking you questions about the care that they provided. And your attorney that's representing you should be counseling you as to how to handle those situations and to really just talk about what you did and your standard of care and not necessarily opine on the care of others. So you want to make sure you follow your attorney's instructions. In fact, plaintiff's counsel may ask your opinion about what you would have done in a situation of what another provider did. So we want to be aware of not falling into that trap. And you also want to make sure you don't have the appearance that you're pointing fingers at somebody else in the case. It's crucial to meet with your counsel before the deposition, even if you are not a named defendant and are just being called as a third party witness. Because there are times, not often, but it does happen where the testimony of someone who's a third party who chooses not to attend with an attorney falls into a trap and now they have been brought in as a defendant in a case based on information they provided during that deposition. Your attorney is also going to prep you and give you insight into the plaintiff counsel's style of deposition taking. Your attorney will also typically run through questions and answers with you. So they'll give you questions that they anticipate being asked. And this is designed to prepare you for what to expect, but also to minimize the elements of surprise. So note also, even if you are not a defendant and are either a treater of the patient or a former treater, it's important to meet with the attorney prior to the deposition. If there is a lawsuit involved, you may end up becoming a party. Having preparation is key. Also note that if you are deposed, the transcript can be obtained for future legal actions. So even though they can go back and look at testimony you did in the past, they can also use your current testimony for potential testimony you may give in the future, even if it's years later for an unrelated case. So be aware of pointing fingers at other defendants. Your attorney should discuss with you the potential pitfalls of doing so, including the finger pointing in a case only works to the plaintiff's advantage and may render an otherwise defensible case indefensible due to infighting amongst the defendants. Because a jury may say if they're fighting amongst each other, somebody must have done something wrong. So let's get into some specifics about preparing for your deposition. So this should go without saying, but you should be dressing professionally. If you dress and act as an educated and experienced professional, your credibility will increase. Dress as you would for an important professional job interview. Speak clearly and distinctly so that everyone attending the deposition can hear and understand your answers. It also makes it easier for the court stenographer to record your answers because they're basically typing what you're saying. Try not to use gestures like nodding your head to answer yes or no questions. Again, the stenographer needs to have verbal answers to record. Do not bring paperwork to the deposition unless you are specifically instructed by your attorney. Any documents you should have reviewed with your attorney in advance of the deposition. If you have questions about a document produced by the questioning attorney, read it carefully before answering. Allow time for your attorney to potentially object to questions related to the document. Place your body in an open stance position. Try to avoid crossing your arms. If you're nervous or fidgety, clasp your hands. Avoid getting angry or using condescending or sarcastic language. The testimony should be taken seriously and must be treated with respect. Avoid telling jokes, you know, that kind of thing. Simple language to answer questions is best. Using professional jargon or acronyms may not be understood by those in attendance. And do not let the questioner rush you to answer. If questions are being asked rapidly, slow down the tempo by pausing between the question and answer. If a question is unclear, ask for clarification in lieu of assuming what you think the question is being asked of you. Listen and take cues from your attorney before answering. And again, let your attorney have time to object to a question. If you're testifying about an office or company policy or procedure, remember you can only testify about policies in which you are personally familiar and which you have authority to enforce, point or evaluate. While you may have knowledge of a policy, you may not be the right person to testify to that policy. Allow time between the question and answer so that, again, as I said earlier, your attorney can object to the question if they have an issue with it. Try to remain calm during your deposition. Some attorneys try to rattle the defendant to throw them off during the questioning, try to create confusion, and try to display unprofessionalism. Be truthful in your testimony, but only answer the question being asked. State what you know and do not make assumptions. Prevent disclosing privileged information. Some of the information you discuss with your attorney in preparation of your deposition may be deemed privileged and need not be shared with opposing or co-defending counsel. Your attorney will guide you as to what information is considered privileged. Be aware of questions that assume facts. For example, an attorney may start a question with, assume. Look at your attorney for guidance on whether you should answer a question like that or not. Be aware of compound questions. Each question should stand on its own. Again, look to your attorney for guidance. Pause before answering and thoughtfully consider the question being asked. There is not a need to rush to answer. If you realize you said something incorrectly, feel free to correct the mistake. Ask your attorney on your prep sessions the best way to handle that in anticipation of it potentially happening. Take a break if necessary, especially for a long or very adversarial deposition. Give yourself time to clear your mind. Avoid commenting on others' care unless instructed by your attorney. Use short, concise answers only, answering the, only answering the question asked. Try to avoid long responses that provide more information that are asked, which may lead to additional questions, especially by opposing counsel. Again, respond succinctly and to the point. If it's a yes or no question asked, just answer yes or no. If the questioning attorney wants additional information, they'll ask for it. If the question asked is confusing or unclear, again, seek guidance by asking the attorney to either rephrase the question or to explain what the question is that they're asking. So let's talk a little bit about plaintiff's counsel. So experience and expertise, the level of experience and expertise of attorneys really varies. There is everything from high profile, very experienced medical professional attorneys. And then there are attorneys that do all different types of litigate, personal injury litigation, and may not be as familiar with the medical malpractice sort of ins and outs of a case. So this goes without saying, but there are skilled attorneys and not so skilled attorneys, as I just said. Knowing who you're up against is a really important thing. Most often, if it's a lawsuit, the plaintiff's attorney will have reviewed the records and will have issues at hand reviewed by an expert that they're going to retain. The expert will have educated him or her on the medicine involved in the case. And what he or she believes is the standard of care, where the deficiencies are in the care, and have identified any issue in the medical records, which they can use to their advantage. This is done prior to you ever appearing at your deposition. If you have a very seasoned, skilled attorney, they may already have a good grip on the medicine involved and know what to look for within the records. The plaintiff's attorneys will likely have searched a database to find, again, as I mentioned earlier, prior testimony that you have given in other matters. Discuss with your attorney other cases where you testified as a defendant, third party, or expert to avoid potential accusations of your credibility and contradictions in your prior testimony. Every attorney has different question styles. Some are hostile and combative, while others act more like they're cooperative and your friend. Don't be fooled by someone who is being nice to you. They are not your friend, and they're not there to help you. So be wary of this approach. In addition, there's no need to help him or her. They are trying to build a case against you or another provider. Avoid the pitfall of being combative back at the attorney if they're using a hostile style of questioning. Plaintiff's attorneys will attempt to get you to make an admission of liability or the perception of liability on the record. They will attempt to make you admit that you or someone else did something wrong that caused harm to the patient. That's their goal, right? That's the key element in their case. They will then use these admissions at trial against you or the other parties in the case. So in other words, they're gonna use information you give them to try to discredit you on the witness stand. So just be cautious. Plaintiff's attorneys will likely use the original or a copy of the medical records to question you. It is typical that the record will be used to question you of your firsthand knowledge of the case. The plaintiff's attorney may mark for identification the record page by page, or may mark the whole record as a group that will be used as potential evidence in a future trial. Usually counsel will discuss how the pages will be marked. This is done to identify the document later if the case goes to trial. By authenticating the records, they can be used as evidence. If the records are handwritten, you may be questioned to decipher illegible notes or unclear use of abbreviations. You may be asked to explain medical terminology used in the records. You may also be questioned about documentation the plaintiff's attorney feels is missing. As discussed earlier, the plaintiff's attorney will use your testimony to hopefully lock in admissions of potential liability or weaknesses in the defendant's case to give the plaintiff an advantage in their case. Other documents. So plaintiff's counsel may use other documents during the deposition. Typically the attorney will go through your resume and credentials to gain up background information. As far as publications and articles, these may lead to pin you down on identifying it as authoritative text. So if you're asked if a publication that someone else authored is considered authoritative, be wary. If you deem written materials as authoritative, then you can be used to question your care against the care provided or explained in those documents. The plaintiff's attorney may also question you about articles that you've written. However, this strategy is often saved for trial, particularly if it's helpful to their case, or if it shows that your care was in some way contradictory to what you previously wrote about in a publication. A death certificate or autopsy report in a wrongful death action may also be used, and you may be questioned about the information contained on those documents. Photographs may be used if plaintiff's counsel is attempting to identify information depicted in a photo. And lastly, the records of other providers may use to question you. So again, be careful commenting on the care provided of others. The role of your counsel. So again, you're going to be preparing for your deposition. Follow your attorney's instructions, review only the information your attorney asks you to review and make the time to prepare, including being prepared to be away from the office during the prep time and the deposition itself. This may be difficult, but the reality is your counsel may not do much during your deposition other than just sit there. If you have a skilled plaintiff's attorney asking questions, who is non-confrontational, knows how to phrase a question and is fair, your attorney may, as I said, sit there. However, your attorney may need to object to the form of a question. But that might be all they do. If however, you have an audio-visual deposition, your attorney may have a more active role in the fact-finding deposition than if it's not recorded on a video. In the event of an AV deposition, your counsel will make sure you understand the differing formats that may be used. Inappropriate questions. Counsel may attempt to object to inappropriate questions or the same questions asked over and over again. Again, be wary of when an attorney may ask you the same question different ways to see if you answer it differently. With regards to questions related to the peer review process, your attorney will interrupt prior to your answer on the grounds that it will reveal information that is privileged. That's usually what will happen with peer review questions. Your counsel may then instruct you not to answer. Plaintiff's attorney, at that point, may choose to contact a judge for a ruling. Or the information is, if it's critical, the plaintiff's attorney may suspend the deposition to be concluded and continued at a later date while that issue is worked out between the attorneys and the court. Or your attorney may or may not agree to this, and there may be a back and forth discussion on the record as well. The plaintiff attorney may state that he or she wishes to preserve the right to call you back later instead of suspending the deposition and then just continuing on, skipping that question. Even if he or she continues to pressure you on this issue, pay close attention to the instructions by your attorney on whether or not to answer the question or not. So privileged communications. They cannot, meaning they, plaintiff counsel, cannot ask you about conversations you had with your attorney. Sometimes witnesses will offer information inappropriately that they shared in communication with counsel. Plaintiff's attorney will then usually say, I do not wanna know anything you discussed with your attorney that's considered privileged. If he or she doesn't, your attorney will typically chime in before you have time to have to answer the question just to object. Also, generally, anything you discussed with your spouse is also off limits. So if counsel asks you who you discussed the case with, and if you indicate your attorney and spouse, they will not question you about those specific discussions. To do so would be inappropriate. If questions are being asked that your attorney feels are to embarrass or in some way harass you, then he or she may have a more active role in your deposition. If it's excessive harassment, the deposition may end by suspending it pending court intervention. If counsel asks you the same question repeatedly and the deposition is going on for a long period of time for no reason other than the attorney is trying to get you to previously contradict prior testimony, your attorney may object and indicate that it's being done to harass or oppress you as a witness. Often plaintiff's attorneys will ask an important question a few times in a few different ways. Again, as I said earlier, don't get tripped up by different language. Listen to the question and see if it's the same as a question that was asked previously. If plaintiff's attorney continues to ask the same question many times repeatedly, depending on the situation, your attorney may instruct you not to answer and may ask counsel to move on. Or they may, as I said earlier, terminate the deposition. Termination does not usually happen unless the conduct by the plaintiff attorney is extremely oppressive or hostile. Depositions can be stressful, especially if it's your first time going through it. So your counsel may pull you out of the room during the deposition to calm you down or give you a break. They may also feel that you're going off track from what you had discussed in your prep session. As such, he or she may pull you out of the room to get you to go back on track. Another thing they may ask you to step outside for is to remind you not to talk about information that you don't have firsthand knowledge on. Your attorney will help cue you on ways to avoid pitfalls in your potential testimony in the case. Be prepared and anticipate issues can be helpful in getting through a deposition and avoid these pitfalls. So what are the goals of a deposition? So the main goal is to try to get through your deposition without making a major mistake. Answer truthfully, competently, professionally, and demonstrate you acted within the standard of care. You don't need to be perfect, and as indicated earlier, you're allowed to correct or clarify testimony from earlier in the deposition. Again, no one expects you to be perfect. And remember, it's not your job to help the plaintiff's attorney do their job for them. After the deposition is over, the court reporter will convert the spoken words into typewritten format referred to as a transcript. As a witness, your attorney will receive a copy of your written transcript, and they will send you a copy of it. You'll be expected to review the transcript and sign it within the prescribed period of time. The errata sheet is attached to the transcript, and the deponent can correct transcription errors, whether it's a spelling issue or change testimony by completing that errata sheet timely with supporting substantive changes provided with a reason. So if you are going to change your testimony, you need to specify why you're changing your testimony. You may not hear much about the case for months and maybe even years after your deposition. The case is continuing on through the discovery phase of the case, but your involvement may not be necessary during parts of it. Remember, every case is different, and every attorney will prepare you in a different manner. However, the general practice remains the same. As soon as you receive a deposition notice or subpoena or a court order, contact your employer or malpractice insurer, and they will protect and represent you at the deposition, even if you're not a named defendant. It's much better to go into a deposition being fully prepared and as ready as you can be rather than showing up without ever having spoken to an attorney. Remember, there are many issues to consider, but most importantly, prepare with your attorney and be present. So we're gonna talk a little bit about subpoenas and court orders next. So a subpoena is a writ commanding a person designated in it to appear in court or at a deposition under a penalty for failure to appear. Subpoenas are typically served by attorneys. A court order is an order issued from a competent court, typically a judge, meaning that that court has jurisdiction over the matter in question and requires a party to do something or abstain from doing a specific act. And again, these are typically served by judges. There are different types of subpoenas and court orders. For example, it can be ordered that someone appear in court or a deposition. Another type of a subpoena is called a subpoena ducis tecum. This is a command to a witness to appear and produce documents. For example, this type of subpoena is served requesting the keeper of the medical records to appear to the court or deposition with a certified copy of the records. And then certified meaning the records being produced are a verified, complete and accurate copy of the original records. The keeper of the records is deemed the person or office practice or facility responsible for managing and maintaining the original patient records. For a facility, it might be the head of the medical records department that appears. For an office practice, it might be the manager or the person that owns the practice. One other item to mention is a motion to compel. And this is typically a motion that an attorney serves demanding compliance within a previous request. For example, a plaintiff's attorney requests a copy of the patient's records in support of pending litigation that the patient has. And it may be unrelated to the care that you provided, meaning the pending litigation may not be related to your care, but your records may be important to the case. And if you fail to respond to the order timely, you may be served with what's called a motion to compel, meaning it's forcing you to do what they've asked or you could be held in contempt. Again, anytime you receive a court-related document, you should be contacting your malpractice carrier or practice attorney or your facility general counsel. Let's talk a minute about an affidavit. So an affidavit is a written or printed statement under oath. In this situation, a person is not asked to formally testify in court or at a deposition. Instead, an affidavit is providing very specific information in writing under oath in lieu of appearing. For example, an attorney for your patient may ask you to provide an affidavit in support of the patient's request for an emotional support animal in an OPEP building or in support of particular services the patient is seeking. When responding to subpoenas, court orders, or requests for affidavits or other legal proceedings, such as responding to motions to compel, it's important to determine the type of document served. Does it require appearance at court or deposition or the production of documents such as medical records? Upon receipt of any legal documents, immediately contact your professional malpractice carrier or if you're employed by a facility, contact a risk manager or general counsel or other key contact for your facility to seek assistance in responding. Do not attempt to respond to a legal document without risk management or legal advice. Remember, you must respond timely to avoid penalties and sanctions. Lastly, let's talk about confidentiality. Under HIPAA, a HIPAA-covered healthcare provider or health plan may share protected health information if it has a court order. This includes the order of an administrative tribunal. However, the provider or plan may only disclose the information specifically described in the order. A HIPAA-covered provider or plan may disclose information to a party issuing a subpoena only if the notification requirements of the privacy rule are met. Before responding to the subpoena or court order, the provider or plan should receive evidence that there were reasonable efforts to, one, notify the person who is the subject of the information about the request so the person has a chance to object to disclosure or seek a qualified protective order for the information from the court. So let's sum up with, notify your professional carrier immediately upon receipt of legal documents. Do not attempt to represent yourself or respond on your own. Cooperate with your attorney and follow best practices for being a good witness. Here are some resources to assist you if you want some further information. And if you have questions, remember in addition to one CME credit you can get, if you are an insured through the APA-endorsed program through American Professional Agency, by participating in this presentation, it also provides you with one risk management credit towards the three credits needed for a risk management discount on your renewal premium. Thank you, and I hope you enjoyed this webinar. Thank you, and I hope you enjoyed this presentation.

CME presentation

Risk considerations

Depositions

Subpoenas

Court orders

Preparation for deposition

Attending deposition