Beware of Legal Terms of Art

If you find yourself in the mind-numbing situation of having to give a deposition, meet with your attorney to familiarize yourself with legal terms of art. “The standard of care,” “a known complication,” “informed consent,” and “responsibility” are a few of the terms that can be morphed, manipulated and used by plaintiff attorneys against you.

Avoid word traps

Consider the word “responsibility.” It’s loaded. Many doctors believe they are “responsible” for the patient, particularly if she is hospitalized. But lawyers use the word differently. If you concede that you were “responsible” for the patient’s care and treatment, the plaintiff’s attorney will twist the word’s meaning and equate it with liability. He will argue that you were directly responsible as “captain of the ship,” vicariously responsible for the nurses’ negligence, and “responsible” for the outcome. Avoid using the word “responsible” in your testimony. Under no circumstances agree that you were “ultimately responsible” for this patient.

If asked directly whether you were “captain of the ship,” say no. After all, you are not a captain and the operating room is not a ship. If pressed, explain that everyone has a job to do. For example, the operating room nurse conducts the sponge count. If the plaintiff’s attorney then asks whether one of your jobs is to supervise the nurse, you can say yes, if what plaintiff’s counsel means by “supervise” is to be available to answer questions or respond to emergencies. “Supervise” does not mean “watch every move” over the person’s shoulder and tell her what to do.

The plaintiff’s attorney may ask you whether the plaintiff was your patient. If she was your patient, but there was more than one doctor involved in her care, answer, “I was one of her doctors.” The point of this nuance is to show that you acknowledge she was your patient, but you were not solely responsible for her care.

Preparation is key

It is crucial to be well-versed in common legal terms of art that could be used against you in the courtroom. A tutoring session with your attorney before your deposition will help you avoid these verbal traps and give your case a better chance of reaching a satisfying outcome.

Mutual Interests thanks John M. McGarry, attorney at law, Dykema Gossett Rooks Pitts PLLC, for contributing to this article. Mr. McGarry’s advice on testifying is based on more than 16 years experience in helping physicians avoid losses from lawsuits.