Nurse depositions gone bad - part 2

Diagnosis and treatment - part 2 of 3

CSI - Courtroom Sciences Inc.

In part 1 of this topic, we gave an example of a nurse deposition that resulted in a bad outcome, through no fault of theirs, and the importance of understanding why these poor depositions happen. In part 2 of this 3-part series, we highlight  some  of  the most common aspects of the nursing profession that create the greatest pitfalls for nurses in the deposition.

Nurses Must Have Answers – Always

Professionally: Patients routinely ask nurses about their condition, treatment, and prognosis; and nurses either must have the answers or find the answers. Physicians also rely on nurses’ assessments to develop the treatment plan. It would be professional suicide for a nurse to simply say, “I don’t remember” or “I don’t know” in response to an inquiry from a physician about a particular patient, or to a patient’s inquiry about his current medical condition. Moreover, not only must nurses have answers, they must respond quickly, which means they often anticipate the questions from the patients or the physicians, and they formulate their answers before the patients or the physicians have finished asking the questions. Professionally this is a necessary skill set and it promotes efficiency in the work setting.

In the Deposition: Because nurses are required to have all the answers in their professional daily lives, it makes their job in the deposition extremely difficult. They feel compelled to provide an answer to every question, even if they do not know the answer. Thus, when a question is posed during a deposition to which they do not know the answer, they speculate, hypothesize, or guess – all of which can prove catastrophic in this setting. Additionally, feeling compelled to have answers on the spot is extremely problematic in the context of a deposition. When the nurse thinks she knows what is being asked by plaintiff’s counsel, she starts to formulate her response before the question is even on the table, sometimes answering a question from opposing counsel before he has finished asking it.

The Result: The nurse’s authentic, but incorrect, guesses and hypotheses are now part of the court record and the nurse, the defendant, and the other deponents are now held to, and compared with, the “truths” of her testimony. When a nurse anticipates the question in a deposition, her attention is split between the question being asked and her formulation of a response, causing her to make critical mistakes – either agreeing with something untrue, guessing and getting it wrong, admitting to something that did not happen, or adopting counsel’s terminology and elevating the severity of the occurrence at issue, (and the list goes on). Inconsistencies between her testimony and the testimony of the other deponents (and sometimes the actual facts) create more hurdles for the defense team to overcome, and ultimately increase plaintiff’s leverage either in settlement negotiations or at trial.

Nurses Volunteer Information

Professionally: Whether an inquiry from a physician about a patient’s vital signs and current response to a treatment plan, or a question from a patient or a patient’s family member about his or her medications, treatment, or prognosis, nurses must make sure their responses include sufficient detail to ensure total clarity and understanding. This is done for efficiency, which is crucially important in the medical setting where time is a precious commodity. In this regard, it is better for a nurse to err on the side of providing more, rather than less, detail in her responses and communications. The informed consent requirement, something which nurses deal with every day, illustrates the point, i.e. no matter how remote the possibility of a negative side effect for a given procedure, nurses must operate under the standard that “more information is better.” This good nursing practice ensures the patient understands virtually all the risks associated with a particular procedure prior to the procedure taking place. Professionally, this is good nursing practice.

In the Deposition: One of the biggest gifts a deponent can give plaintiff’s counsel is information that goes beyond the question – an all-too-common occurrence – or provides an answer to a question that has not been asked. Nurses frequently fall prey to this vulnerability because as competent and efficient nurses, they are accustomed to providing detailed explanations to doctors, patients, and patients’ families. In the deposition, a nurse falsely believes that providing full and complete answers with plenty of detail will be an efficient way to “tell the story,” get the “whole truth” out, and convince everyone (hospital administrators, fellow nurses and even plaintiff’s counsel) that she did nothing wrong. She also hopes that this “efficiency” will help end the deposition quickly.

The Result: Volunteering unsolicited information in the deposition simply gives plaintiff’s counsel more ammunition, more questions to ask, and more areas of inquiry. It opens up pathways for plaintiff’s counsel to probe, prod, and pry. Providing detailed answers ultimately produces unanticipated (and   unwelcome)  “surprises” to defense counsel and takes nurses out  of their areas of expertise, spheres of experience, and knowledge base, into unfamiliar territory. The likelihood of more speculation, guesses, and errors increases. The deposition tends to last longer, increases the witness frustration, decreases the nurse’s confidence, and ultimately makes her look and feel incompetent. In turn, the nurse’s anxiety elevates, her concentration wanes, and ultimately, plaintiff’s counsel’s job becomes easier and defense counsel’s job becomes more difficult.

Nurses Form Opinions

Professionally: Nurses must form opinions about their patients every day,   including   responses to treatment; improvement or deterioration of patients’ conditions; and the efficacy of prescribed medications. In practice, nurses’ opinions can be centrally important to the  physicians,  who  rely on nurses’ assessments because they are on the forefront of care. Even though outside their realm of responsibility and qualifications, nurses frequently have opinions about the many aspects of the treatment plan (including the selection and dosage of medications) – opinions they and physicians know are often correct.

In the Deposition: Plaintiffs’ attorneys know nurses have opinions about medical care and treatment, and it is easy for them to elicit these opinions in the deposition. Plaintiffs’ attorneys are also keenly aware that nurses have opinions about the quality of care provided by other nurses, which is not always flattering. When asked for their opinions in the deposition, nurses often feel compelled to respond because they do have opinions and they feel it would be a violation of the oath they just took (to tell the truth) not to give their truthful opinions. What the nurses do not realize is that in the legal context, an opinion is more than just an “opinion,” and anything outside their area of training and qualifications or their actual involvement in the care of the patient is off-limits.

The Result: Plaintiff’s counsel, via leading questions, will lead the nurse to a point at which her opinion will either necessarily support plaintiff’s position, will contradict the conduct of the medical professionals in the case, or will trap her into agreeing with something she does not actually believe. Additionally, pointing the finger, even subtly, at other nurses or medical professionals does not take the heat off the deposed nurse as she might hope. In contrast, she will likely testify at trial when she might not have had to otherwise. Ultimately, opinions that fall outside a nurse’s expertise, training, and sphere of experience, and that are critical of other parties only serve to make the defense of the case more challenging, and the nurse’s job in the deposition and at trial more difficult.

Nurses Defer to Authority

Professionally: Even though nurses are on the frontline of patient care, they recognize that the medical decisions, diagnoses, and treatment plans are the responsibility of the physician – the authority in the patient care hierarchy. In their profession, nurses must defer to this ultimate authority for the medical care of the patients. And, although nurses might have opinions that differ from those in authority, they typically do not challenge the physicians, nor do they attempt to override the physician’s opinions and medical judgment.

In the Deposition: Lawyers are seen as the authority figure in the legal arena, particularly in the deposition where there is an absence of a higher authority (i.e., the judge). Because a plaintiff’s lawyer can sound commanding, act in an authoritative manner, and sound “physician like” in his questioning, he in effect, takes the place of the physician in a nurse’s mind. A nurse is likely to have a difficult time respectfully disagreeing with the attorney (authority), even when all her training and experience tells her what the plaintiff’s attorney is saying is incorrect. Additionally, during questioning, when this authority figure applies pressure, raises his voice, becomes aggressive, quotes hospital’s policies and procedures, and tells the nurse that she violated the standard of care, the nurse will frequently acquiesce. The plaintiff’s attorney takes advantage of the dynamics at play between physicians and nurses in the medical arena and uses it to manipulate nurses in the deposition. The tactics plaintiffs’ attorneys use to intimidate nurses are not much different in appearance and feel than the demeanor and tone employed occasionally by some physicians.

The Result: Sometimes even when a nurse has been prepared by defense counsel, has practiced answering adversarial leading questions, and seems to be in line with the defense themes, she will falter in the deposition. This is because many nurses do not have the communication tools, preparation, or “permission” to respectfully disagree with plaintiff’s counsel in the deposition. In the end, nurses who do not believe they violated the standard of care might admit to standard of care violations because they do not know how to disagree with “the authority” in the right way and without appearing argumentative or defensive.

Preventing Nuclear Settlements at Deposition

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