If You Are Accused of Medical Malpractice…

 Digest, Winter, 1991

In the unlikely event that you are named as a defendant in a claim, you will be instructed not to make any deletions, corrections or additions to the record and to keep the original office record in a safe and secure place. If you receive a request for medical records from an attorney, OMIC recommends that you cooperate and release the records, but only if there is a properly executed letter from the patient authorizing you to do so. Release of records may be discussed with a claims representative by calling 1-800-562-6642. In addition, it is recommended that you not discuss aspects of the case with anyone and refer all inquiries on the matter to OMIC. The American Academy of Ophthalmology in 1988 published a list of Dos and Don’ts if you are sued for malpractice. It is reprinted below for your convenience.

1. Don’t panic! Of course this is an emotionally unsettling experience. Do keep your sense of perspective. A recent assessment indicates that the frequency of malpractice claims increased from 10.5 claims per 100 physicians in 1980 to 17.8 claims per 100 in 1986. Of these, the number of cases which eventually went to trial was very small, in the range of less than 4% of 8,965 closed claims reported by a major medical malpractice insurance carrier.1
2. Don’t alter, amplify, or in any other way try to change your medical records. Efforts to do this can easily be detected and lead to indefensibility even in cases where the physician is blameless.
3. Do immediately notify your malpractice insurance carrier at the first signal that a claim may be made.
4. If you have specific questions about your liability exposure or your best course of action, do ask your malpractice insurance carrier to refer you to an attorney.
5. Don’t talk to the plaintiff (former patient) or plaintiff’s attorney about any aspects of the case under any circumstances. They are now your adversaries and anything you say will be used against you. It is futile to speak to them thinking that you will persuade them not to proceed with the suit (once it is already filed).
6. If a claim seems likely, don’t investigate the medical literature before conferring with your defense attorney. Such investigation can bring unfavorable literature into evidence in your case.
7. Don’t talk or write about the case with other physicians, your office staff or acquaintances. They really aren’t too interested in the specific case, and if the matter does come to trial there is potential embarrassment if you have to admit that you discussed it with third parties, who may then be called to testify.
8. Do speak to colleagues in medicine and others who are significant figures in your life about the stress you are feeling if you perceive that you are emotionally troubled by the suit. This is a time to benefit from sources of support from within your family, church, and friends.

Notes:

1. Charles SC, Pyskoty CE, and Nelson A. Physicians on Trial – Self-Reported Reactions to Malpractice Trials. Western Journal of Medicine. 1988; 148:358-360.

Surviving the Aftershocks of Malpractice Litigation

By Sara C. Charles, MD

Sara C. Charles, MD, is Professor of Psychiatry (Emerita) at the University of Illinois School of Medicine in Chicago and the author, with Paul Frisch, JD, of the Oregon Medical Association, of Adverse Events, Stress, and Litigation: A Physician’s Guide (Oxford University Press, 2005).

Digest, 2005

Earthquake experts tell us that the larger the main shock, the larger and more numerous are the aftershocks, those small earthquakes that can continue over a period of weeks, months, or even years. The aftershocks associated with adverse medical events, such as a bad outcome, or with a subsequent lawsuit may vary in severity. These life-altering events, borne within the physician, are hidden from public view, shaking the foundations of our personal and professional lives. One fledgling ophthalmologist who was sued while in residency admits that the experience continues to influence his care of patients even many years later:

“The lawsuits really did shake me up. The first one was an unavoidable surgical outcome during residency. Just before beginning my first job after fellowship, I was notified of the litigation by the hospital’s attorneys. It made me feel terrible. I even called to resign a job I hadn’t even started. I was very green and didn’t realize the preponderance of lawsuits. Fifteen years later, even though my actions were remote from the sphere of litigation, I still feel it was very problematic and I worried until I was dropped from the lawsuit. In talking with my peers, I know that litigation tears up lives and does, I think, result in a thickened skin and greater distrust of patients in general.”

Like many other physicians undergoing similar trauma, this ophthalmologist felt isolated and unsure of where he could find a helping hand. For most physicians, the adverse event triggers an avalanche of practical details associated with the investigations, regulatory demands, and legal processes. In addition to the disruption caused by participation in these activities, most physicians say that the event itself and the subsequent lawsuit also cause significant emotional and physical symptoms. Such experiences should not be borne alone.

Treating the Defendant as a Person

Few insurers do as good a job as OMIC in paying attention to the people involved in a claim. Although some risk managers, claims personnel, and attorneys understand the human dimension of being a defendant, their primary concern must be the management of adverse events and lawsuits. As defendants, we doctors often feel very alone and worn down by the burden of defending our own integrity. Feelings of isolation and vulnerability are reinforced and complicated by the common legal admonition “not to talk to anyone” about what has happened.

For most of us, confusion rather than clarity follows the serving of the complaint. We feel abandoned as we try to manage our conflicting feelings and restore equilibrium to our lives. We are often unfamiliar with the litigation process and so we are not sure that anything, short of the suit being dropped, would help us feel better. Emotionally upset and naïve regarding the legal process, we do not even know how to find or profit from whatever support may be available. To whom do we turn? What are the important questions to ask? We must nonetheless prepare ourselves to take on, however reluctantly, the new and difficult challenge of defending ourselves against the lawsuit that looms before us.

Web Site for Sued Physicians

A new web site has been established by an advisory group of physicians, lawyers, and insurance personnel as a resource for physicians feeling the aftershocks of adverse events and the repetitive traumas associated with litigation. This site (www.physicianlitigationstress.org) provides physicians and other health care professionals with easy access to resources to help them understand and cope with the personal and professional stress set off by involvement in an adverse event that may result in litigation. Designed both to lessen the feelings of being alone and to provide the information needed to respond to the situation, the site adheres to the philosophy that most physicians function well and can accept and successfully implement suggestions about how to help themselves.

Being sued, or being caught in the backwash of a bad outcome, can generate sleeplessness and other physical symptoms, such as headache, gastrointestinal disturbances, or chest pain. We may also experience anger and depression or find ourselves so preoccupied that it interferes with our daily life. The web site is not a substitute for the professional counseling that may be indicated in some situations, or the support groups offered by some medical malpractice insurance companies, or other ad hoc groups. Rather, the web site offers resources for the majority of physicians who, given sensible support and an understanding of what to expect, how to cope, and when to seek help, can manage the stress associated with these events successfully.

What to Expect If Sued

On the first page of the web site, physicians can download “Coping with the Stress of Litigation” (West J Med 2001; 174:55-58). This affords an overview of what to expect if sued and offers suggestions on how to cope with the experience. Based on surveys, interviews, and extensive clinical data, this article acquaints readers with the typical reactions of more than 95% of sued physicians who experience at least temporary periods of emotional disruption at some time during their lawsuit. The article briefly reviews the feelings and symptoms that defendants can expect during the different stages of what is often a lengthy process.

It also explains why we feel the way we do about being sued. Many physicians possess, at least in part, obsessive-compulsive personality traits, which can cause us to constantly examine ourselves, doubt ourselves, experience feelings of guilt, and possess an exaggerated sense of responsibility. Current tort law requires that negligence be alleged in order for compensation to be awarded. Merging these psychological fault lines – a legal accusation of fault against a person who is already self-critical and has lofty personal expectations – causes the emotional earthquake of a medical malpractice suit. This accusation of negligence is the fundamental assault that challenges a physician’s core feelings of integrity and, more than any other factor, causes the profound psychological tremors that accompany lawsuits.

The article also lists a number of coping strategies. These include, as a first step, being aware of how we react to any trauma and, secondly, paying attention to and understanding emerging feelings and behaviors that are essential to effective coping. Our feelings often overwhelm us so that we have difficulty isolating exactly how we feel. Rather than succumb to confusion, we need to take the time to settle down, listen carefully to ourselves, and identify exactly how we feel by naming the feeling. Do I feel angry, sad, depressed, or hurt? Am I preoccupied, distracted, and self-concerned to the point that my work is suffering? Asking and answering such questions strengthens our ability to deal successfully with the experience.

Malpractice Litigation Literature

Because lawsuits occur within a cultural and legal context and the climate of litigation and trends within the insurance industry are constantly changing, we help ourselves by placing our own lawsuit into perspective as we deepen our familiarity with the literature about litigation.

The web site advisory group, in order to make such information available to physicians, carefully reviewed and compiled a bibliography of references on litigation stress and medical malpractice litigation. These references are listed, generally with abstracts, and cover the subjects of stress, disclosure, malpractice litigation, risk management, and adverse events.

The web site advisory group also reviewed a number of books, including the newly available Adverse Events, Stress, and Litigation: A Physician’s Guide published by the Oxford University Press, as useful resources for physicians on litigation related subjects. Links to publishers and booksellers are provided.

This resource also provides links to other web sites, including the American Medical Association’s “Medical Liability Reform Now!” document (www.ama-assn.org/ama1/pub/upload/mm/450/mlrnowdec032004.pdf). This is a regularly updated overview of the current climate of medical malpractice litigation, including the status of federal and state tort reform legislation. It also presents well documented information that counters many of the popular misunderstandings and accusations commonly made in arguments for and against tort reform.

In addition, many of the physician-owned insurance companies, specialty societies, and physician magazines offer web-based resources and articles supportive of sued physicians. OMIC, for example, features a number of downloadable products on its web site that physicians find especially helpful during litigation, including “Responding to Unanticipated Outcomes,” in the Risk Management Recommendations section, and  the Deposition and Litigation Handbooks, available in the Claims section of our website.

Support During a Lawsuit

It is one of the most difficult and perplexing aspects of a lawsuit that lawyers advise physicians not to “talk to anyone about this.” Involvement in a significant adverse event, especially one that leads to a lawsuit, is often a traumatic life experience. The natural and healthy urge after any traumatic event – whether it is a divorce, the sudden death of a loved one, an unanticipated natural disaster, or the death of a patient – is to talk about it. Yet in this instance, we are cautioned that doing so may jeopardize our ability to defend ourselves should a lawsuit develop. Attorneys do not want us to say anything that may be interpreted as assuming responsibility for the event. Such a strict prohibition may be sound legally but it is not good psychologically. Many lawyers and claims professionals agree that it is possible to share our feelings about the event without violating the spirit of the advice of legal counsel.

This web site offers just such an approach: We can talk about our feelings regarding the event but not the specifics of the event itself. We can accept the discipline of not talking about the specifics while still expressing our dismay and anger about the event. The physician who refrains even from telling a spouse about the fact of the lawsuit is likely to be a more symptomatic and less effective defendant than the physician who can share feelings with trusted confidants while refraining from discussing the facts of the case. Many factors affect our choice of a confidant: our level of comfort with and confidence in the person is essential. We need someone with whom we can truly be ourselves and someone who is trustworthy and understands and respects the legal constraints imposed on us.

When Ordinary Support is Insufficient

The support offered by family, friends, and peers is sometimes insufficient. If physical and emotional symptoms persist, consultation with an appropriate professional may be indicated. We may develop physical symptoms that are highly suggestive of a diagnosable condition. We may observe certain dysfunctional behaviors in ourselves that complicate our lives, such as excessive drinking or lack of attention to paperwork. We may experience symptoms that signal a clinical depression or other psychological disorder. The web site offers suggestions about when consultation is warranted as well as what ordinary resources may be helpful. It also reviews some of the impediments, some self-imposed, that we, as physicians, are likely to encounter in our effort to obtain professional help.

The resources of this new web site provide information about the experience of an adverse event, lawsuits, and the stress that accompanies litigation. This information is not considered risk management or legal advice because technical advice related to individual cases should come from one’s own attorney, risk manager, claims professional, or other advisor. Its overall goal, instead, is to help average physicians with their litigation experience and to decrease the likelihood that any practitioner will be left alone when involved in or facing the threat of medical malpractice litigation.

Reporting Requirements of the National Practitioner Data Bank

Digest, Winter, 1991

If a case is settled or an adverse verdict rendered against an individual physician, Title IV of Public Law 99-660 mandates that the payment be reported by the malpractice insurance carrier to the National Practitioner Data Bank. Reports of all such payments made by OMIC on behalf of an insured are first discussed with the insured-ophthalmologist before being filed with NPDB. Payments made as a result of a claim or lawsuit against an entity such as a professional association do not need to be reported.

In addition to indemnity payments, the Data Bank requires reporting of:

• Certain adverse privilege actions taken by a health care entity.
• Licensure actions taken by a particular state board responsible for the licensing, monitoring and discipline of physicians or dentists.

The Data Bank represents a depository of information relating to the “professional competence and conduct” of physicians, dentists and other health care practitioners. This information is made available to state licensing boards, hospitals and other health care entities, and professional societies to provide data to those involved in credentialing or regulating physicians.

Another group allowed to request information from the Data Bank are medical malpractice attorneys and plaintiffs involved in a proceeding against a hospital and requesting information about a specific practitioner who is also named in the action or claim. Their access to the Data Bank is restricted, however, and they must first demonstrate that the hospital failed to request the information from the Data Bank as required. Any information they receive from the Data Bank may only be used in litigation resulting from the action or claim against the hospital.

The Data Bank’s reporting and querying components are summarized in the accompanying table. (See page H-35 for changes to the Data Bank’s reporting requirements since this article was first published.)

Lessons from Trials and Settlements of 2004

By Arthur W. Allen, MD, and Anne M. Menke, RN, PhD
Dr. Allen is OMIC’s Chairman Emeritus and is currently serving his final year as Chairman of OMIC’s Claims Committee. Anne Menke is OMIC’s Risk Manager

Digest, Winter 2005

OMIC policyholders have indicated on evaluation forms completed after risk management seminars that they would like to know the outcome of trials and settlements. This article will give an overview of last year’s claims experience. Claims and lawsuits are evaluated by the OMIC Claims Department and the Board’s Claims Committee, as well as by plaintiff and defense attorneys and expert witnesses. The insured ophthalmologist is involved in the process and in the decision to settle a case or take it to trial. Money awarded to plaintiffs as a result of settlements or jury verdicts are called indemnity payments and are reported by OMIC to the National Practitioner Data Bank. As required by state law, some are also reported to the physician’s medical board.

In 2004, there were thirteen trials, which resulted in eleven defense verdicts (85%), one plaintiff verdict, and one mistrial due to a hung jury. One case that resulted in a defense verdict required a payment to the plaintiff based on a pre-trial “high/low” agreement. A jury verdict does not always signal the end of a case. Four of the eleven defense verdicts are being appealed, including one that has already been taken to trial three times. OMIC is appealing the one plaintiff verdict of $500,000. The 56 settlements cost OMIC $6,851,155 in indemnity payments.

All three anesthesia cases involved retrobulbar blocks. In one case, the plaintiff alleged inadequate pain relief during cataract surgery; the other two stemmed from globe perforations, a known complication of the procedure that can occur in the absence of negligence. The cause of the poor outcome in one case was excessive anticoagulation from Coumadin combined with inadequate control of intraoperative bleeding. When a patient is on Coumadin, alternative methods of anesthesia should be considered, and the ophthalmologist should consult with the primary care physician to verify  that the PT level has been recently checked and is in the appropriate range prior to surgery.

The secondary issues in cataract cases were: retinal detachments (5), glaucoma (3), “wrong” IOLs (3), corneal edema (2), endophthalmitis (2), and one each involving informed consent, iritis, retinal toxicity, and payment. Retinal detachments and glaucoma are known complications of cataract surgery, and ophthalmologists who disclosed this information during the informed consent discussion were in a better defense position, especially if the patient had preexisting retinal tears or glaucoma. Failure to diagnose was the main factor in settling these and the iritis case, underscoring the need to determine and treat the cause of visual complaints and to refer patients who do not improve.

“Wrong” cases are considered preventable and are quickly settled. Two were due to using the wrong constant in the A scan, and one from not calculating the effect of pterygium removal on the patient’s astigmatism. Physicians must verify these IOL calculations. Corneal edema developed after intraoperative complications; in one case, the nurse did not note that the phaco machine’s irrigation fluid had run dry, and the anterior chamber collapsed.

Delay in diagnosis is the most common problem we see in endophthalmitis cases. In one case, the infection only developed after a second surgery, later deemed unnecessary, was performed without intraocular antibiotics (see this issue’s Closed Claim Study). In the other case of endophthalmitis, while “telephone treatment” may have contributed to a delay in diagnosis, defense experts successfully argued that the outcome was due to Strep pneumonia, known to be virulent in children. Postoperative cataract patients who call with complications should be evaluated in person by the surgeon or immediately referred to another ophthalmologist if the surgeon is unavailable. Another patient felt his eyes had not been properly shielded during use of the microscope, leading to retinal toxicity; at trial, this was appropriately attributed to his preexisting macular degeneration. Failure to perform surgery due to payment issues led to one lawsuit and settlement. Payment issues should be discussed and handled as part of the preoperative evaluation.

Two unexpected complications led to settlements in chalazion cases. In one, the surgeon cut across the lid margin instead of the lid; the suture required to repair this led to a corneal abrasion. Lack of a signed consent form contributed to the decision to settle. In the second case, a 4×4 gauze pad ignited, burning the patient’s cheek; the fact that the ophthalmologist did not disclose the nature of the injury no doubt influenced the patient’s decision to file a claim.

Six different issues in cornea cases led to settlements. In one, when the extended wear contact lenses ordered were not available, a technician substituted daily wear lenses without consulting the physician or warning the patient, who developed corneal edema. One pediatric contact lens wearer was treated with steroids for a corneal abrasion; the drops masked a pseudomonas infection, which was not discovered in a timely fashion due to inadequate follow-up. This poor outcome reinforces the need to carefully follow abrasions in patients with contact lenses until corneal ulcer is ruled out. Another child needed corneal transplants after he was treated for herpes simplex instead of acanthamoeba. The distinguishing features were not recognized, and the patient was not referred to a corneal specialist when he did not heal promptly.

An eye bank was sued for lack of informed consent when it harvested the corneas of a “John Doe” who remained unidentified after his body was found in a park. A patient receiving corneal transplants developed a choroidal hemorrhage postoperatively, which he attributed to inadequate control of his nausea and vomiting. Defense experts refuted his hypothesis for the cause of this known complication, but venue concerns, high wage loss damages, and a persistent plaintiff contributed to the decision to settle for the cost of defense. In the last case, too much cornea was removed during PTK, requiring corneal  transplants.

There were six glaucoma cases. A patient with a history of corneal abrasions and corneal erosion suffered another abrasion during pachymetry; failure to warn of the risk of a recurrence was deemed below the standard of care. Two cases involved inadequate diagnostic work-up in patients at risk of developing glaucoma: one had a strong family history and was on nasal steroids; the other was African American. The AAO’s Preferred Practice Patterns for glaucoma should be consulted. In another case, although defense experts supported the care of a noncompliant patient, altered records forced a settlement. Additions to the medical record should be rare, clearly labeled as such, and closely related in time to the care provided. No additions should ever be made after receiving notice of a claim or lawsuit.

Medications were the primary issue in two settlements and the secondary one in seven more. A patient with systemic lupus was referred to an ophthalmologist who failed to appreciate and test for the toxic ocular side effects of Plaquenil. A second physician provided psychiatric medications without an examination or informed consent and also failed to monitor the patient. As described above, excessive levels of Coumadin led to a retrobulbar hemorrhage. Another patient suffered a stroke after being given Procardia to control bleeding during a blepharoplasty. The prescribing information contained a warning about the increased risk of stroke in hypertensive patients on beta blockers; there were also criticisms of the perioperative monitoring and decision to discharge.

Lack of informed consent and failure to monitor and treat the side effects of ocular steroids contributed to settlements in five cases. As part of the informed consent discussion, patients on medications need to understand the risk/benefit ratio, and be carefully educated about the method of administration, follow-up schedule, and symptoms of side effects that should be reported to the physician.

In the sole neuro-ophthalmology case, the ophthalmologist ordered an MRI to rule out a mass or aneurysm in a patient with blurred, double vision and a 3rd motor palsy. Although the report indicated a torturous internal carotid artery and stated that a formal arteriography or CT was needed to rule out ananeurysm, this was not done, and the aneursym ruptured one month later.  The fact that the physician suspected an aneurysm but did not act on the radiologist’s suggestion to rule out this “worst case scenario” was difficult to defend.

Over 16% of the cases come from oculoplastics. Two resulted in settlements with both the ophthalmologist and the surgery center; the first, involving Procardia, was described above. The second illustrates the importance of team communication: the CRNA did not inform the surgeon when the patient moved his head, and the nurse did not confirm the Bovie  settings with the physician and set them too high. The burn caused a corneal perforation. A second equipment-related injury occurred when a patient slid to the floor after a bed malfunctioned. Diagnostic failures led to three settlements, two in patients at risk for their condition. One developed secondary glaucoma from steroids; the other suffered a recurrence of basal cell carcinoma, which might have been diagnosed earlier if tissue had been sent for a biopsy. A third patient reported a significant decrease in visual acuity to the technician involved in the preoperative work-up for ptosis repair. The technician did not report the problem, and the retinal detachment was not diagnosed until after surgery. In addition, the surgeon did not sign the technician’s notes, nor did he personally do a complete preoperative examination. In other cases, the surgical technique and intraoperative decision-making in patients with ptosis, repair of an orbital fracture, and orbital decompression for Grave’s disease were criticized. It is important in complicated cases, such as those that might require non-ophthalmic expertise (e.g., roof decompression and craniotomy), to confer with and, at times, operate with the consultant.

Five cases involved children. Four, discussed elsewhere, stemmed from a corneal ulcer, endophthalmitis following cataract surgery, surgical repair of an orbital fracture, and a traumatic foreign body. In another case, failure to evaluate for an accommodative component and a decision to strengthen the lateral rectus muscle in response to a tight medial rectus caused a poor outcome in strabismus surgery. Three of the five LASIK settlements resulted from “wrong” data. The two wrong laser setting cases could have been prevented by complying with the new JCAHO protocol that includes a “time out” before beginning a laser procedure, while obtaining two axis measurements would have brought the problem in the third case to the surgeon’s attention. Informed consent for the partial, off-label treatment would have helped prepare the patient for the fact that the laser could not treat the amblyopia resulting from her esotropia. A defense verdict was rendered in a free-flap complication case where the patient experienced halos, and in an RK case with macroperforation in which the patient required penetrating keratoplasty and cataract surgery five months later. The only PRK case involved inadequate monitoring of postoperative steroids in a patient with a history of glaucoma and thin corneas.

Failure to diagnose retinal detachment occurred in two cases. Nonclinical, largely preventable problems led to settlements in the remaining retina cases. An ophthalmologist and a medical group were both involved in settling a case of macular pucker. Although the care was defensible, records were altered and there was no consent form for the surgery. Lack of an operative report and failure to obtain and document informed refusal of fluorescein angiography in a patient with AMD treated with photocoagulation led to a settlement, as did performing an incision on the wrong eye.

In addition to the case involving surgical treatment of an orbital fracture, there were two other traumacases. In both of these, undiagnosed foreign bodies led to endophthalmitis and enucleation. In trauma cases, to rule out foreign bodies, the ophthalmologist must obtain a careful history, perform a dilated examination, and order a CT scan. These patients must be carefully followed until the eye heals.

As this article demonstrates, some poor outcomes can be prevented by keeping current with clinical guidelines, conducting a “time out” before surgery, and obtaining and documenting all care, including informed consent. Sometimes, however, patients sue physicians when they experience known complications. When the outcome is less than the patient or ophthalmologist anticipated, the physician needs to use his or her very best communication skills. OMIC policyholders are encouraged to call our Risk Manager for help in these instances. OMIC treats these calls as confidential; only the policyholder has the right to share the information with Claims or Underwriting. Also, see “Responding to  Unanticipated Outcomes” in the Risk Management Recommendations section of our web site as well as an expanded version of this article, with tables summarizing the cases and illustrating the associated nonclinical issues, in the Digest section of the web site (www.omic.com).

How to Handle a Deposition: Advice from an OMIC Defense Attorney

 By Joseph P. Metzger, Esq.

Digest, Summer, 1991; Fall, 1991 (originally in two parts)

(The following article summarizes a presentation made by OMIC defense attorney Joseph Metzger during the risk management seminar in Palm Beach Gardens, Florida, on April 12, 1991.)

Since the majority of medical malpractice cases are disposed of prior to trial, the deposition can be of critical importance to the outcome of a claim. The deposition is a pre-trial process in which parties or witnesses to a case can be examined under oath, but outside the presence of the court. Under certain circumstances, statements made during deposition can be used during the actual trial, if a case proceeds that far.

Although you may have given depositions on behalf of others on prior occasions, it is a different experience when the deposition will be used in a case in which you are the defendant. You should approach this deposition with special care, remembering that your deposition is likely to play a very important part in the determination of the ultimate outcome of your case. What follows are numerous points or rules to keep in mind throughout the deposition.

1. Tell the truth. This is more than a copybook maxim; it is a rule of self-preservation for witnesses. Assume that examining counsel is supporting himself on his professional ability to make a witness who is playing “fast and loose” with the truth very uncomfortable.
2. Think before you speak. Wait five full seconds before beginning to answer the question. This allows your counsel to formulate objections and gives you time to think through your answer. You should realize that when you testify you are dictating an important document.
3. Answer the question. The examiner is entitled to an answer to the question he asks but only to that question.
4. Do not volunteer information. You are not there to educate the examiner.
5. Do not answer a question you do not understand.  It is up to the examiner to frame intelligible questions; if he cannot do it, do not help him. Do not explain to the examiner that the question is incomprehensible because he has misunderstood words of art in your profession. Do not help the examiner by saying, “Do you mean X or do you mean Y?” You will be asked both of these questions.
6. Talk in full, complete sentences. Unless it is a simple question, the question generally should not be answered yes or no. Beware of questions with double negatives in them.
7. You only know what you have seen or heard. Questions are often phrased “do you know?” A question on a deposition may legitimately call for something you do not know, but it must be asked. There is a difference between a question which asks “do you know” and a question which asks whether you have any information bearing on a particular subject.
8. Do not guess. If you do not know or cannot recall something, say so. This rule becomes more important and more difficult to follow when the examiner is scoring points or making it appear that only an idiot does not know the answer to the question. Do not guess.
9. Be as specific or as vague as your memory allows, but do not be put in a position contrary to your true recollection. If you are asked when something occurred and you remember that it occurred on January 15, state so. If, on the other hand, you cannot recall the exact date, state the approximate date and say that it is approximate.
10. Do not explain your thought process in reaching your answers. In answering a question to which your answer depends on your recollection and other facts not called for by the question, do not refer to these other facts in explaining how you can answer the question. For example, if you are asked when a conversation with Jones occurred, and you recall that it had to be in December because you met Smith after Jones and that was in January, do not explain this thought process to the examiner.
11. In testifying about conversations, make it clear whether you are paraphrasing or quoting directly.
12. In answering questions calling for a complicated series of events or extensive conversations, summarize these where possible. The examiner, if he is doing his job properly, will ask for all the details. It is always possible, however, that the examiner will accept your summary and this is so much the better.
13. Never characterize your own testimony. Phrases such as “in all candor,” “honestly,” “I’m doing the best I can” should never be used.
14. Avoid all adjectives and superlatives. “I never” or “I always” have a way of coming back to haunt you. (There are times, however, when such words are appropriate.)
15. Do not testify as to what other people know unless you are asked specifically for such a statement.
16. Do not testify as to your state of mind unless you are specifically asked.
17. Do not tip off the examiner about the existence of documents he does not know about. If information is contained in a document which is not an exhibit at the deposition, answer the question only if you can recall the answer without looking at the document. Otherwise, simply answer the question by stating that you do not recall. If you can answer the question, do so. After a witness states that he does not recall a fact which the examiner believes he should have knowledge of, the examiner will usually ask if there is a document which can refresh his recollection.
18. Do not let the examiner put words in your mouth. Do not accept his characterization of time, distances, personalities, events, etc. Rephrase the question into a sentence of your own, using your own words.
19. Do not answer a compound question unless you are certain that you have all parts of it in your mind. If it is too complex to be held in your mind, it is too complex to answer.
20. Pay particular attention to the introductory clauses preceding the guts of the question. Leading questions are often preceded by statements which are either half true or contain facts which you do not know to be true. Do not let the examiner put you in the position of adopting these half-truths or unknown facts on which he will then base further questions.
21. If you are interrupted, let the lawyer finish his interruption and then firmly, but courteously, state that you were interrupted and had not finished answering the question. Then do so.
22. If you are caught in an inconsistency, do not collapse. What happens next depends on what questions are asked of you. State, if asked, your present recollection. State the reason for the inconsistency only if asked. Rehabilitation is done at trial or, if appropriate, later in the deposition when your attorney asks you questions.
23. Do not adopt an examiner’s summary of your prior testimony.
24. Do not add to your answer because the examiner looks at you expectantly. If you are finished with an answer and the answer is complete and truthful, remain quiet and do not expand upon it. If the examiner asks you if that is all you recollect, say “yes” if that is the case.
25. Do not agree to supply any information or documents requested by the examiner. If reference is made to documents or information, the request is made to counsel. Counsel will either answer the request or will take the request under advisement.
26. If an objection is made to a question, listen to the objection very carefully. You may learn something about the question and how it should be handled from the objection.
27. Never express anger or argue with the examiner.
28. Do not expect to testify without the other side scoring points. If the other side appears to you to be asking questions which call for answers that do not help your case, accept the fact that every lawsuit has two sides and sit back and take your punishment. Avoid the temptation to guess, expand upon your answer where expansion is not called for or, even worse, prevaricate.
29. Avoid any attempt at levity. Pomposity is the occupational disease of the legal profession; you will probably be hauled over the coals for not taking your solemn oath seriously if you make jokes or wisecracks.
30. Avoid even the mildest obscenity and absolutely avoid any ethnic slurs or references which could be considered derogatory.
31. There is no such thing as “off the record.”  If you have a conversation with anybody in the deposition room, be prepared for questions on that conversation.
32. If the examiner appears totally confused about your profession and its technical aspects, do not attempt to educate him.
33. If you do not remember something, so state. You may then be asked if a statement or document refreshes your recollection. If it does, so state. If it does not, the answer remains that you do not remember. You may be asked whether there exists a document which may help you refresh your recollection.
34. Numerous documents are marked as exhibits at certain depositions. If you are asked about a document, read it before testifying. Do not make any comments whatsoever about the document except in answer to the question that elicits your testimony.
35. If you are hit with a flash of insight or recollection while testifying which has not been previously discussed with counsel, hold this to yourself until you have an opportunity to go over it with counsel.
36. Use all recesses to follow your attorney to a place where you can confer in private.
37. Every witness makes mistakes on a deposition. Do not become upset if you find you have made one. If you make a mistake during the deposition, correct it as soon as you realize it. Mistakes you remember after the deposition is over may be corrected at the time you are to sign the transcript.