Talking to a Patient’s Attorney and Giving a Deposition

Over the course of your time in practice, you may be asked to either talk with a patient’s attorney or give a deposition (or both) regarding a condition for which you have provided treatment. If you are a treating health care professional but are not a party to the patient’s legal case, the attorney requesting your participation believes that you likely have knowledge relevant to the case. The patient’s attorney may want to test that belief through an informal interview, or either side in litigation may request your deposition to obtain your recorded testimony so they can use it as evidence.¹ 

If you are a party to the lawsuit or otherwise represented by counsel and you are contacted for an interview or deposition, it is essential that you first speak with your attorney for guidance. As a defendant or independently represented individual, another attorney may not speak with you outside your attorney’s presence.   

Responding to a Request for an Informal Interview with a Patient’s Attorney 

If a patient’s attorney contacts you to discuss a patient’s care and condition, it is likely related to a personal injury (e.g., motor vehicle accident or slip-and-fall), disability proceeding, or medical malpractice case against another health care professional. As a treating practitioner not otherwise involved in the lawsuit, and if you are not represented by counsel, there are a few things you should know about such a request. 

You should call MICA. Your first move should be to call MICA’s Claims Department. Claim professionals can help you assess the request and determine next steps. 

You can call the attorney. You may ask what the case is about and get a better sense of the information the attorney is hoping you will provide. Do not reveal a patient’s protected health information (PHI) unless you have a signed authorization from the patient or patient’s representative. 

You are not required to talk. You are not obligated to talk about your care of the patient with the attorney unless subpoenaed or ordered by the court to testify. However, it is best not to leave the request unanswered. 

• You can refer the attorney to your records, and offer to provide copies upon receipt of a valid request and authorization for release. 
  
  
• If subpoenaed to give a deposition or produce medical records, you still must have a signed authorization from the patient or patient’s representative in order to reveal PHI.  

You may choose to be interviewed. You may talk with the attorney about your documented care and known patient condition. In that case: 

• Ensure that you have a signed authorization from the patient or patient’s representative on file before discussing their PHI. 
  
  
• Use the information documented in your medical records to guide your answers. 
  
  
• Do not speculate or provide opinions outside the scope of your care. That is the role of a paid expert witness. 
  
  
• If you get the sense that the attorney is questioning your care, stop the interview and call MICA’s Claims Department. 
  
  
• If you are uncomfortable for any reason, you may stop the interview at any time. 

Providing Deposition Testimony 

Before giving a deposition, please contact MICA’s Claims Department to discuss the circumstances surrounding your testimony. 

If you agree to or are subpoenaed to give a deposition, you must ensure that you have a signed authorization to reveal PHI. An attorney in the case will send you official notice of the deposition which will tell you when, where, and for how long you will testify. The deposition will be conducted under oath in a question-and-answer format. Depending on your state, a deposition of a non-party can be scheduled for up to four hours in Arizona² and Utah³, six hours in Colorado⁴, and seven hours in Nevada⁵.  

The attorney who sent notice of the deposition will begin with questions, and attorneys for all other parties to the case will then have an opportunity to ask you questions, as well. A court reporter will transcribe the conversation and produce a verbatim transcript that you will review for accuracy and sign. The deposition may also be video recorded in some cases.  

Your testimony may be used as evidence in trial or during settlement negotiations. It is important that you keep several things in mind as you prepare for your deposition. 

Prepare for the deposition. Review the records you have for the patient. Your testimony should be limited to your treatment of the patient. Refreshing your memory by reviewing your records is sufficient preparation as a non-party, treating health care professional. As a practical matter and to keep your mind clear the day of your deposition: 

• Pack your bag the night before with such things as a snack, water, and a sweater. 
  
  
• Plan your outfit. Dress professionally but comfortably. 
  
  
• Plan your route to the location of the deposition so that you do not get lost and are not rushed. 
  
  
• If the deposition will be virtual, check your internet connection and that you have access to the virtual platform ahead of time. 

Tell the Truth. You will take an oath to tell the truth at the outset of the deposition. Failing to honor that oath is perjury and can result in punishment. In addition, being dishonest will harm your credibility in the case and, potentially, in future cases in which you may be involved as a witness or party. 

Listen to the Instructions. At the start of the deposition, you will likely hear a set of instructions. You will be asked to speak clearly and offer only verbal answers since a shake or nod of the head cannot be recorded in a transcript. You will be asked not to answer with “uh-uh” or “mm-hmm” since those are easily mixed up but mean different things. You will also be told to pause after a question is asked to allow for potential objections and argument for the record. If this happens, an attorney will instruct you when you may answer.  

Don’t Guess. It is perfectly acceptable to say, “I don’t know” or “I don’t recall” if that is the truth. If you guess, you may provide inaccurate information that could be used to question your credibility. 

Be Responsive. Listen carefully to the question posed, answer the question asked, and then stop. Offering extraneous information may amount to being non-responsive and could lead to additional questions or open the door to theories the attorney had not previously considered.  

Provide Accurate Information. Do your best to provide the most accurate information possible at the time of the deposition. You will have the opportunity to review the transcript prior to signing it and can make corrections at that time. However, a heavily edited transcript will weigh on your credibility. 

Use Your Records to Guide You. Unless an attorney has retained you and is compensating you as an expert witness in the case, you should refrain from speculating, providing opinions outside the scope of your records, answering hypothetical questions, or commenting on another health care professional’s treatment of the patient. 

Remain calm and professional. In most cases, the examining attorneys will be courteous and respectful. No matter their demeanor, remaining calm, factual, and unemotional is your best course of action. 

It can be stressful to receive a request to talk with an attorney or to give testimony in a case, even when you are not directly involved. Keep the information provided here in mind when navigating such a request and remember that you can call the professionals at MICA to help you understand the process and discuss how to proceed. 

The MICA Team is here to respond to your questions about talking to a patient's attorney or provide more information if you have received a request for an interview or deposition. You can reach us Monday – Friday 8:30am – 5pm MST at 877-215-6422.

^{[1] An informal interview or meeting may only be requested by the patient’s attorney, as an attorney representing a defendant healthcare provider may not have ex parte  communications with a treating physician without the patient’s attorney present.  A deposition, on the other hand, may be requested not only where the patient’s attorney needs evidence to advance their case, but also where defense counsel seeks to obtain information from you.} 

^{[2] Ariz. R. Civ. P. 30} 

^{[3] Utah R. Civ. P. 30} 

^{[4] Colo. R. Civ. P. 30} 

^{[5] Nev. R. Civ. P. 30}