MEDICALMALPRACTICE THE NURSING DEPOSITION by Marcus Michles All warfare is based upon deception. Sun Tzu, The Art of War . A: I don’t know. I would have to review the poli-cies to figure that out. Q: Is your testimony that you have no idea what policies and procedures apply to the care at issue? A: Well, I would just have to review them to figure that out. Q: Do you agree that the policies and procedures of the hospital have value? A: I’m not sure what you mean, I would have to review them to answer that. Q: Do you agree the purpose of the policies and procedures is to ensure patients receive adequate care and to assist the medical pro-viders in doing that? A: Yes. Q: And for that reason, they are valuable? A: Sure. Q: Do you agree that the hospital requires its per-sonnel to follow its policies and procedures? A: Yes. Q: Would you agree that at some point in time you did review the policies and procedures? A: Yes. Q: In fact, at some point in time you agreed to follow the policies and procedures while employed at the hospital? A: Yes. Q: You likely signed a piece of paper promising to do that? A: Probably. Q: Is it fair for the hospital to presume its employees know the content of its policies and procedures? A: Yes. Q: Would you agree my client has a right to re-ceive care and treatment at this facility consistent with its own policies and procedures? Experience gained over 30 years of trial work has led me to adopt an unconventional and asymmetrical approach to litigating medical malpractice claims. For those looking for a refresher on the funda-mentals essential to taking strong nursing depositions, that section of this article begins under the subheading “The Fundamentals.” Perhaps more valuable to those already in strong command of the basic building blocks, at the forefront of this discussion are some strategic and tactical considerations designed to take advantage of the typically poorly prepared and unaware nursing deponent. Drawing your opponent off the obvious hilltops, where they expect the fight to commence, and into the valleys and hillsides, will alter the landscape of which battles ultimately prove to be decisive in the life of your case. Consider for a second the simple question of, “Why are you taking the deposition of this nurse or these nurses?” A symmetrical answer might include: In order to obtain an understanding of this witness’ care and interaction with my client; or, to learn everything this wit-ness knows about the care and treatment provided to my client; or, this is simply a good starting point regarding the chronological care provided to my client by the defendant. An asymmetrical approach to this question would be simply you were taking this deposition to increase the likelihood of your case being successful. That’s right, you are intending to obtain testimony in a simple discovery deposition, which will assist your expert, and you, in proving your case to a jury. For example, let’s start with the policies and procedures maintained by a defendant hospital. An asymmetrical approach would include not requesting, via requests for production, any of the policies or procedures applicable to the case early in discovery. Instead, from your experience, you know that there is an abundance of policies which, arguably, would apply to the facts and circumstances in your case regardless of what your case is about. You can be certain that if you have requested the policies and procedures applicable to the case, prior to the nursing deposition, that witness will be well-pre-pared to speak to and probably distinguish those protocols, policies, and procedures. If, on the other hand, you trust your skill set, you can get the nurse witness in almost all circumstances in a position of relative lack of preparation. A simple litany of questions regarding the purpose, nature, and extent of the policies and procedures in any hospital will usually, with relative ease, prompt significant sup-port for your position. Q: Is there a policy or procedure that addresses or applies to this medical/nursing treatment? 42 | July/August 2021 | www.MyFJA.org
Journal FJA Issue 621: Page 42
