Deposition

  1. 0
    I have to give a deposition in a malpractice lawsuit where I am might be ask to testify against my coworkers. According to my agency lawyer, the hypothetical question might be as follows:
    Mr. Bancho, on this date nurse X did not document or tally the patientís input and output, do you believe she failed to meet the standard of care?
    The agency lawyers advised me that I should never admit a failure to meet the standard of care by my coworkers because they can then use me to testify against my peers in court. What should I answer when I know they did a sloppy documentation?
    I would appreciate your input.

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  2. 11 Comments...

  3. 0
    I hate all lawyers

    I hate being depositioned

    good luck to you
  4. 0
    What do you mean by your "agency lawyer?" Is this someone your employer pays? Keep in mind that that person's first loyalty would be to the employer, not necessarily to your best interests. You might want to talk to another attorney about your situation, one who would not have that kind of conflict of interest.
  5. 0
    It is my employers lawyer. However, the lawsuit is against my employer and the physicians. My license is not on the line, I hope.
  6. 0
    I repeat:
    Keep in mind that that person's first loyalty would be to the employer, not necessarily to your best interests. You might want to talk to another attorney about your situation, one who would not have that kind of conflict of interest.
    I would have a v. hard time taking advice about what I should do in a deposition, or any other aspect of the situation, from the attorneys who are representing the agency in the suit ...

    If you have your own liability insurance, your coverage may include representation if you're being deposed (my policy does, but I don't know if that's standard or not). Even if that's not the case, if it were me, I would consider it worth whatever it would cost to talk to an independent attorney about my options.

    Best wishes --
  7. 0
    Sounds like you are not acutally a party to the suit? If not - whew!

    If you are, you need your own lawyer.

    I cannot stress enough how important it is to have your own lawyer. Your employer/hospital may have a lawyer - but YOUR interests and the hospital's interest are not exactly the same.

    They want to avoid liability at all costs - they will turn on a nurse or any other person they can shift the blame to. The only person who would protect your interest is the lawyer you are paying.

    This may sound mean, but lawyers are ethically bound to "zealously" (that's the exact word) represent their clients. If, as a lawyer, I let the hospital take more blame then they should (so that someone's license is spared), I have failed to do my job as a lawyer.
  8. 0
    The discovery process can utelize and seek much broader questions (discovery ) than that which could be utelized and/or introduced at actual trial. The discovery process includes depositions, interrogatories, admissions, requests for documents, and requests for mental or physical examinations. To be an appropriate object for discovery, the discovery must reasonably lead to the introduction of admissible evidence. That is, the information and/or discovery sought may not be admissible in a court of law but it may be sought if it might lead to evidence which would be admissible.
    Your attorney should already have a list of those experts that the other side intends to call including the opinions that they intend to present.
    If your agency's attorney objects to a particular question during the deposition and tells you not to answer the question, I would not answer the same. Only expert witness, fully aware of the facts of a particular case, are generally required to give opinions as to standards of care.
    The only reasonable recourse that the other side might have, if you refuse to answer this question and your attorney objects to the question, is to get an order to compel from the court ( which would order you to answer the question). I don't believe that the court would order you to answer such a question, if your attorney objects to the same, as the other side will, in all likelihood ,have experts testifying as to the appropriate standard of care with the result that an order to compel would be unnecessary.
    I am not an attorney at law. I am an R.N. and a Certified Legal Assistant
  9. 0
    Quote from bancho
    I have to give a deposition in a malpractice lawsuit where I am might be ask to testify against my coworkers. According to my agency lawyer, the hypothetical question might be as follows:
    Mr. Bancho, on this date nurse X did not document or tally the patientís input and output, do you believe she failed to meet the standard of care?
    The agency lawyers advised me that I should never admit a failure to meet the standard of care by my coworkers because they can then use me to testify against my peers in court. What should I answer when I know they did a sloppy documentation?
    I would appreciate your input.
    Bancho, I'm confused. You're not being deposed as an expert witness, I assume? It seems odd to me that the question wouldn't be centered around what you had witnessed, rather than what your professional opinion of those actions would be. I am just thinking if it were me in the same deposition, and a question was posed that way, I would comment only on whatever action is being asked about and leave the nurse out of it all together. I'm not a lawyer, but I have had to testify at a hearing before, and I kept my answers very narrow. I agree about getting your own attorney, too.
  10. 0
    I actually just finished up a deposition...I said "I don't remember" way more than I thought I would...but when they asked their questions...I was asked alot of questions of what people said, how it was said and things that I wouldn't necessarily document...guess I wasn't much help to them...It seemed like it took a long time, but it wasn't really as painful as I anticipated. Of course I wasn't the one they were going after, I'm sure in other circumstances it could have been way worse..
  11. 0
    You are not being deposed as an expert witness, so I am confused by the nursing standard of care question. It sounds like you are being deposed as a possible witness. I do not think it is necessary to obtain your own lawyer at this point. How are you involved in this case? Does your name appear in the chart somewhere?

    Just answer the questions honestly and follow the instructions of your employer's attorney. Chances are the case will settle and that will be the end of it.

    In regards to the documentation question. I would say, "Just because something was not documented, doesn't mean that it wasn't done." This nurse could have been keeping track of the patients output, but just forgot to document the totals. I tend to side with the nurse and give her the benefit of the doubt. How well staffed was the unit on the day of the incident. Was it the night shift or the day shift? There are so many factors to consider.

    And remember it usually takes a calamity of events to cause a bad outcome. There are usually many reasons and people involved. Unfortunately, the nurse is the last line of defense and always gets blamed. I would stay away from any finger pointing.


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