Being Deposed - Help!

  1. Hello Nurse Beth,
    I once worked in a nursing home 3 years ago, where a dementia patient suffered a severe fall injury (fractured neck) in the bathroom, in spite of all fall precautions in place. The injury was found non operable, given his cognition etc. 7 days later patient died. Now patient's family sued the facility but their lawyer served me a notice of deposition as a witness to the occurrence. I no longer work for the facility. I had relocated out to another state. They told me I was going to be a witness since I was nurse on duty and wrote the incident report. What do you think is best I do? Attend the deposition scheduled where I currently live? Request a copy of the incident report because I cannot remember the patient very well. If I witness for the patient, do you think the facility will come after me?

    Responses appreciated.


    I am so sorry for the terrible accident and also for you being pulled in.

    The deposition is voluntary if you have not been subpoenaed. Typically if you still worked for the facility, the facility's attorney would prep you and accompany you, but I do not know how it works with a previous employee. I'm surprised the facility hasn't contacted you.

    I have been involved in depositions and it's easy to say the wrong thing or say too much if you haven't been prepped by an attorney.

    Thankfully, the facility is being sued and not you. I don't know if the facility can sue you, and can’t think of why they would but please consult with an attorney, it’s not my area of expertise.

    I hope you’ll keep us informed.

    Very best wishes,

    Nurse Beth

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    About Nurse Beth, MSN, RN

    Joined: Mar '07; Posts: 1,405; Likes: 4,209


  3. by   hppygr8ful
    A wise man who was a physician as well as a lawyer once gave me the best advice. In deposition there are only three answers to any question: Yes, No and I don't recall. Never elaborate.

  4. by   Nurse Beth
    Quote from hppygr8ful
    A wise man who was a physician as well as a lawyer once gave me the best advice. In deposition there are only three answers to any question: Yes, No and I don't recall. Never elaborate.

    I love that
  5. by   meanmaryjean
    I have been deposed- and agree. You have to be really careful not to let them put words in your mouth- and call them out if they try. Also, try really hard to slow things down. Take your time formulating an answer. Obviously, tell the truth- but if you honestly don't remember, say so.
  6. by   MikeyT-c-IV
    I've been deposed a couple of times. One was related to a workman's comp case with a coworker and another was related to a patient injury that did ultimately kill him. Luckily my nursing care was spot on and I did everything I could do and ordered to do. In both of those cases the hospital attorney spent time with me to thoroughly talk about the cases. It can be a nerve wrecking deal but for me, it was a learning experience and I took a lot from it. I would figure the attorney for that facility would like to talk to you about this case. It would be smart.

    These questions spark my interest because I always want to know what happened!
  7. by   ~♪♫ in my ♥~
    Taking the Fifth
  8. by   RNGummy40
    Dear Nurse Beth,

    WOW, I too am sorry you are experiencing this situation and am sorry your patient had a negative outcome. You absolutely need an attorney! Since you no longer work for the company, your former employer has no obligation to provided you legal representation. Even if your former employer did provided you legal representation, the attorney would be representing the company and not you as an individual. If there was any evidence of liability on your part, you need to have representation that can review your case under attorney client privilege, and discuss your legal rights.

    I would hope that you would have obtained malpractice insurance at the time of this incident, or already been covered before the event. Some insurance companies with not provided coverage before or after the event. It they do provide coverage, legal representation and specified monetary compensation would cover you if you were found responsible for damages. Your attorney can also prepare you for any deposition you would need to attend.
  9. by   RNJD65
    I'd suggest contacting your former employer. Although they are not required to, they will almost certainly have the organization's lawyer attend the deposition with you if you'd like. Unless you have your own insurance that would pay for a lawyer, I wouldn't spend your own money to hire an attorney in this situation -- getting up to speed on the facts, prepping you for the depo and attending with you would probably be 3-5k. From a practical perspective, if you weren't named personally in the suit, you generally don't need to worry about personal liability.
  10. by   kbrn2002
    Even working and living out of the state the lawsuit is in you can be subpoenaed to appear. If you are being deposed as a potential witness and you are not named in the lawsuit a personal lawyer is not a necessity. It would be nice to have your own legal representation if you have insurance to cover that or if you can easily afford it on your own but unless your name is on that lawsuit you are not being personally sued.

    If your name is on the lawsuit as a defendant along with your former employer your own lawyer is a must. The employer's lawyers are there to protect their clients interests, not yours. They would have no qualms about throwing you under the bus if there is any way they can spin that to your former employer's advantage. This is especially true if you are being considered as a witness for the patient since your former employer's lawyers now have to look at you as a witness for the opposition.

    I am surprised though that the lawyers for whichever side is initiating the deposition have not been in touch with you. They should allow you access to the patients chart and time to adequately review the chart to refresh your memory of this patient before a deposition. The one time I was to be potentially deposed the company lawyers had me come in for a thorough chart review and then spent some time prepping me on potential questions that may be asked during the deposition. Living out of state shouldn't be an issue as this can all be done via video conference and if the chart is paper they can either get it to you where you are or pay for you to get to them if needed.

    I am of course assuming here that you would be called as a potential witness for the defendant [your former work place]. If you are being deposed as a potential witness for the prosecution it would be their lawyers prepping you instead of the former employers lawyers. Same things apply though, they would probably come to you for deposition where you live and if you are needed in court they would foot the bill for getting you there.
  11. by   Richard Wolfe
    1. I've never heard of a deposition being voluntary.
    2. Always carry your own insurance. The facility and their lawyer will throw you under the bus without hesitation.
    3. If you are being deposed, then you must assume that you will be named in the suit.
    4. Who leaked the Incident Report?
  12. by   Richard Wolfe
    Quote from KindaBack
    Taking the Fifth
    That's funny, but please no one take that seriously.
    You would be advised to get a lawyer for both that case and your Board of Nursing hearing if you plead the 5th.
    Plus, it will be on record that you plead the 5th (which can be brought up in trial) and also that a judge had to issue a Motion to Compel.
  13. by   prmenrs
    Count to 5 before you open your mouth. This will give your lawyer time to object. (And, yes, you do need a lawyer. Contact the facility risk management for help) You can also respond, "conference" @ any time to confer w/your lawyer. This would be done very quietly, but, the court recorder won't record anything. You really do need to be prepped. Don't explain or 'teach'.
  14. by   FolksBtrippin
    If the facility were to contact the OP and help her prep, that could be construed as tampering with a witness.

    They aren't going to risk that. That's very serious.

    I agree with the yes, no, I don't recall method.