Recently, the patient’s attorneys have started to ask treating physicians to give a deposition concerning the care of the patient in hopes that the testifying physician will be critical of the health care provider that has been named in the complaint, thus giving the patient an advantage in the claim.  The logic behind this tactic is that it can be part of human nature for a person to profess his or her innocence in a situation by looking negatively at another individual’s involvement in the same situation. 

In some situations, if not most, the patient’s attorney is going as far as telling the testifying physician that the patient is not looking to sue the testifying physician.  This can provide a false sense of security for the testifying physician that he or she will not be dragged into a medical malpractice claim leaving the testifying physician unprepared for the actual deposition.  Healthcare providers need to be cautious because there is nothing to stop the patient’s attorney from adding the testifying physician as a party to the medical malpractice claim after the deposition has been taken.  If that were to happen, the patient’s attorney has the testifying physician’s deposition to use against the targeted health care provider and the patient’s attorney can look to build a case against the testifying physician. 

So what can health care providers do to protect themselves?  There are two quick and simple options you have to make certain you are protected and well advised on how to proceed.  The first is to call your private attorney to advise him or her of the situation.  Your private attorney can make a call to the patient’s attorney to get more information on the matter and then advise you what you should be doing.  The second option is for you or your private attorney to call your medical malpractice insurer to advise it of the situation.  The medical malpractice insurer may opt to provide you with an attorney at the insurer’s expense, especially if the patient’s attorney wants to move forward with the deposition. 

In this type of situation, it is not a bad idea to call both your private attorney and your medical malpractice insurer to ensure you receive as much guidance as possible.  If you have a risk manager associated with your practice group or hospital, you most certainly should contact the risk manager as soon as you are approached by a patient’s attorney.  Your risk manager will be able to help you navigate this situation as well.  If you are ever placed in this situation, the most important thing to remember is that accommodating the request of a patient’s attorney does not mean that you will not be sued even if the patient’s attorney states that you are not being targeted for a lawsuit.

Author: Chad M. Smith (bio)
Phone: 812.452.3597
email: csmith@bamberger.com