You Receive Notice to Appear for Deposition: Now What?

Some of you may have had an opportunity to attend the session “Mock Trial: Lessons From the Bar and Risk Management” at APA’s 2016 Annual Meeting in May. One part of the presentation was a mock deposition of a psychiatrist defendant who was sued after a patient died by suicide. Even if you were unable to attend the session, some of the principles discussed are important to keep in mind in case you are ever faced with being deposed as a treating psychiatrist, an expert witness, or a defendant in a lawsuit.

We receive many calls on our risk management hotline regarding depositions. Some psychiatrists may have already appeared at a deposition, unrepresented by counsel; the caller may not have been a defendant at the time of the deposition, oftentimes stating he or she had done “nothing wrong,” was “honest about the care,” and “had nothing to hide.”

A deposition is one of the most important and critical aspects of a lawsuit. How a witness presents at the deposition can significantly impact a case, and if information is uncovered during the deposition and the witness is not a defendant at the time, he or she may be added as a defendant or, without realizing it at the time, could later be designated an expert witness against the defendant.

What is a deposition? A deposition is a chance for an attorney to ask questions of a witness, party, or expert under oath; gather information and develop facts about a lawsuit; and/or find out what information the witness will have to say at trial. The deposition testimony is transcribed and can be obtained by other attorneys years later.

You may receive a deposition notice in a variety of ways: a notice of deposition either communicated by phone or letter by an attorney, a subpoena that compels you to appear, or a court order by which the court orders you to appear.

You should contact your insurer as soon as you receive notice that an attorney wants to take your deposition. Also, always have counsel represent you at your deposition, no matter the situation. Further, depending upon the manner served or other factors, you may or may not have to appear. Your deposition testimony can impact the case you are being called on, can result in your being added as a defendant even if you are not at the time of the deposition, and can impact you in the event you ever testify in the future on any matter.

Although not an exhaustive list, here are a few points to keep in mind regarding depositions:

• Deposition preparation is critical.

• Anticipate that it will take time away from your job to adequately prepare.

• It is important to review pertinent records (that is, of care you were involved in). However, prior to doing so, discuss with your attorney.

• It is crucial to meet with your counsel before the deposition.

• The testimony given will follow you through the entire course of litigation and beyond.

• Deposition testimony will likely be used at trial to potentially call your credibility into question.

• The plaintiff’s attorney will be looking for you to be inconsistent at your deposition versus your testimony at trial.

If you become aware that an attorney wants to take your deposition, contact your risk management professional at your insurance company before responding, even if the situation appears innocuous. It is critical to prepare for the deposition and ensure that you have counsel represent you as the testimony provided could impact you for years to come.

For other risk management topics, see the online risk management courses available on APA’s Learning Center Risk Management page. ■