The Deposition Experience

Today I sat in on the deposition of a woman whose medical records I had analyzed.  She was being deposed by the large company against whom she is bringing suit. To any legal nurse consultant who has never participated in this exercise, I highly recommend it. Of course, being neither the deponent nor the one taking the deposition, I was free to sit back and enjoy the show.

What was fun about this deposition? When you hear your observations being quoted directly in a question to the deponent, it takes your analysis out of the world of paper and connects it to the reality of the person involved. Even when you are sure of your work, you still hold your breath waiting to hear the reply you know should be forthcoming.

This deponent did not disappoint. She was an attorney representing herself, a choice I would not have made were I in her place. She was a master of obfuscation and passive aggression, managing to sound and seem concurrently ignorant, forgetful and clever. I actually admired her a bit.

I would never have the temerity to repeat a phrase six times that I knew the opposing counsel did not want to hear.

I would certainly never have asked opposing counsel to hand tally my medical bills if he wanted the sum that badly.

I would not have set the "land turtle-speed" record for timely responses. No answer was given directly. No opportunity was missed to appear confused and uninformed. No reply was given in under two minutes.

That particular shade of red in opposing counsel’s face would have alarmed me to no end.

This was nothing like the many deposition transcripts I have read, with compliant claimants whose attorneys have told them to “stick to the facts” and answer as briefly as possible.

I could not stay for the whole deposition, which my attorney-client assured her would take the entire seven hours allowed by Georgia law, given her style of response. She blamed him for this observation. She refused to allow her picture to be taken because she did not like the way she looked today. She offered a cell phone picture that was more flattering, but of course, the phone was dead and alas, the picture could not be retrieved.

Yes, it was an eye-opening event. I can’t wait to do it again.

Here’s (Who’s) Lookin’ at You, Kid

Legal nurses, like expert witnesses, attorneys and politicians, are only as credible as their public image. While we have faith in the integrity of our friends and fellow professionals, we are not immune to the intentional harm inflicted by someone whom we would rather not have riled.

Most of us unwittingly sow the seeds of our own demise. We engage in light-hearted email bantering back and forth with friends and colleagues. We know to screen our Facebook friendships and confine our LinkedIn connections to business, but still…

We do love voicing an opinion when asked, and even when not asked.

Our professional listservs allow ample opportunity to hone our critical thinking skills and play beat-the-buzzer at guessing elusive diagnoses, arcane abbreviations and other mind-teasers thrown out by our colleagues.

We might even voice a private opinion on an expert’s skill level. Woops.

What we say today will be here tomorrow, and the next day, and the year after that, forever circulating and percolating in cyberspace, molded into sound bytes that hardly represent the original intent.

In fact, this was recently done to me, by me. I wrote a short article called “It’s not life… it’s social media” (http://www.caseconsultant.com/Social%20Media.pdf). I still support most of what I wrote, but I now have 75 Facebook friends and attend Martindale Hubbell online conferences. My article lingers on.

Recently, a fellow LNC posted several sites that construct an image of you based upon your shopping habits, public profiles, emails, etc. The images were not accurate portrayals, but there are people who use their free time to make mischief for the rest of us.

As the NYPD day sergeant would say, “Let’s be careful out there” as we fall in love with the sound of our voices and the sight of our words.

Hold Nothing Back

I work with attorneys.  I know that they provide medical experts with selective records targeting their area of expertise.  Some of this is cost containment and some of it is shaping the view of the expert. This practice of selective omission and inclusion does not work for me as a legal nurse consultant. I want everything.  

An expert witness works within a narrow window and focuses upon rendering an informed opinion.  This expert is critically important, but how many will you need in a complex medical action? 

You only need one legal nurse consultant to work your medical case.

If that person is me, send me every scrap of data in your possession.  I am a bloodhound. If you omit information, I will know it.

In asking for the entire file, I have a targeted, cost-efficient yet comprehensive system for discovering critical information, discarding irrelevant data, and knowing what is missing.  My chronology clarifies the diagnostic picture and directs me to the authoritative research that will support my recommendations and conclusions.

The most relevant data is often the most elusive. That chicken scratch that passes for cursive writing may be at odds with the typed dictation. The casual comment to the ER nurse or EMS may not be admissible as testimony, but is no less relevant to the case.

In dealing with this abundance of information, I find the the pleading, affidavits, interrogatory and responses to be critical. These documents reveal the mindset of the claimant and the temerity of the attorney. I need that.

If  I am working a defense case, I know that an over-reaching complaint is an open invitation to investigating past medical care. Discrediting one specious charge will cast doubt on others. It is a rare individual who enjoys perfect health until an unwitnessed slip and fall in the drugstore.

If this is a plaintiff case, I am equally wary of the client who casts a wide net of complaints, or the nondisclosive client who selectively provides data.

In this world of healthcare litigation, we cannot truly function knowing this thing but not that thing.  The practice of picking and choosing data will come back to haunt both plaintiff and defense attorneys…particularly if the opposition has me on their team.