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Legal Speak

Depositions 201

Published March 4, 2008 10:58 AM by Tony DeWitt

It is said that “assume” is the only word that makes an “ass” out of “u” and “me.” In a slightly more earthy comment, a drill sergeant of mine suggested that the word was the mother of all mistakes.  Regardless of which way you remember it, remember that assume is not one of those things you want to do as a clinician.


Assumptions get clinicians in trouble in the hospital, and they also cause problems in court.


In dealing with patients, clinicians are taught to check assumptions. If you assume that an obtunded patient is unresponsive due to narcotics, you check that assumption by giving Narcan and by follow up. If you assume that a low pulse oximetry value is due to a breathing problem, you evaluate the chest. You only get into trouble with assumptions when you fail to test them.


A good example can be found in the current lawsuit brought by John Ritter’s wife (Amy Yasbeck) against the hospital where Ritter was treated when he was brought in with chest pain. In Ritter’s case, his chest pain was considered to be of cardiac origin, and a chest film was not obtained. Had a chest film been obtained it would have shown an enlarged aorta.  t was an aortic dissection, and not a heart attack, that claimed Ritter’s life. But, because a heart attack is far more common, and because Ritter was not stabilizing, the doctors gave aspirin and anticoagulants – both of which would have been correct for a heart attack patient – and both of which accelerated the aortic dissection.


Another way you can get into trouble in a deposition is to assume that you know more medicine or physiology than the person deposing you. Most attorneys learn the medicine backwards and forwards before they attempt to depose a nurse, physician, or other clinician. While they may not have the same experience in the area of medicine that you as the clinician do, they will know the anatomy, the physiology and the pathophysiology of every issue or disease process in the case.


Recently, in a case, the opposing counsel sought to qualify its nurse witness as an expert on a particular drug. Counsel asked if the nurse was familiar with the drug, had used it, knew its side effects, and similar questions. When it was my time to examine the witness I walked up and placed a yellow legal pad in front of the witness and asked him to draw the molecular formula.  He couldn’t.  He couldn’t tell me how the drug was chemically described. He could not tell me what the “three compartment model” was with regard to the drug. All of these questions came right off the package insert, and a more seasoned witness would have simply said “we never use any of that stuff when we use the drug.” But instead, he got rattled and admitted he was no expert on the drug. So, never assume that the lawyer who examines you is going to give you softballs to hit.


Another assumption that leads to trouble is to assume that the case is about what you thing is important, instead of what the lawyer thinks is important. To you, the issue may well be the patient’s hypoxemia. But to the lawyer, the issues might be the failure to do assessments at particular times.


Before a lawyer comes to depose you, he has met with someone in your profession and he has prepared a list of questions based on what that expert wants to know. If you have access to medical records or other documents to prepare for the deposition, it is a good idea to review them and try to remember as much as you can about what happened. The lawyer who will be deposing you has put a lot of time and effort into the process, and he or she will be ready.



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About this Blog

    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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