Health care providers can be terrible witnesses and terrifying for lawyers. Often, the provider does not perform well during testimony because they are eons away from their comfort zone. Providers are experts in medicine, not the law, which means they can recite the ACLS protocol and quickly identify a heart attack on an EKG or renal failure on a lab test. They live in a world of short form charting and acronyms. They save lives for a living. So when a provider is faced with the task of sitting in a chair in a conference room and articulating their testimony to a group of lawyers, court reporters, jurors, plaintiffs and cameras, the provider would probably much rather be working the night shift on New Years Eve in the Emergency Room. The hospital is their comfort zone – not a conference room or a courtroom.
Can you imagine asking a lawyer to work a shift in the Emergency Room? Envision the anxiety, discomfort and fear pulsing through the lawyer’s veins with every second of that shift. Said MD to JD: “Lawyer, hand me that syringe.” Lawyer blinks twice and then passes out. Likewise, a provider can feel anxiety and discomfort pulsing through their veins when we ask them to come into our domain and immediately perform as we want them to.
Having been deposed twice as a nurse, I get it. I was terrified and practically paralyzed with fear. Both times, I felt like if I said the wrong thing, the entire case would explode and it would be my fault. The second time I was deposed I was in law school, so I had some perspective (far less than I thought I did at the time), but it was still petrifying.
As a lawyer/nurse and witness consultant, here are a few tips I find to be helpful in preparing the health care provider for deposition, arbitration or trial testimony.
1. Establish a Rapport and Keep it Real.
Many providers are very distrusting of lawyers. They practice “defensive medicine” to reduce the risk of interacting with lawyers. Start the session by just talking to them. What do they like to do outside of work? Do they have family? Get to know them. Acknowledge the provider’s fear, nervousness or discomfort and let them know that those feelings are perfectly normal. You are there to help them and guide them through this process.
Remind the provider that (generally speaking), their testimony is not going to “make or break” the case. Removing that responsibility from their shoulders will ease their anxiety. In other words, keep it real. Be honest, open and do what you can to gain their trust.
2. No, I Did Not Order the Code Red.
Like many people, health care providers perceive testimony and the legal field like “A Few Good Men” or “Law and Order.” Dispel those perceptions immediately. Confirm that opposing counsel will not be pounding their fists on the table, yelling at them or throwing a chair across the room (hopefully). When I break the news that the provider’s deposition will not be akin to an episode of Boston Legal, the provider often responds with an audible sigh of relief, and then we can work.
3. Carve a Path to the Comfort Zone.
Recall that health care providers are experts in medicine and testifying, to them, is like asking a lawyer to start an IV. The provider is way outside of their comfort zone. So what is a lawyer to do? Get the provider back in their comfort zone. Remind them that they didn’t leave their nursing cap or white coat at the door. They’re not there as a “witness” but as a nurse, physician, midwife, or whatever specialist they are. When you put the provider back in their role in health care, they feel a sense of comfort and familiarity.
When the provider is testifying, ask them to channel their expertise – their critical thinking skills. They know the medicine. They just have to explain it under unusual and uncomfortable circumstances.
I find analogies to be extremely useful in preparing the health care provider for testimony. For example, when the provider begins to feel panicky, ask them to think about how they handle tense or emergent situations at work, like coding a patient or dealing with an angry family member. The situations they deal with at work are often life threatening and a deposition is not, so it gives the provider a little perspective and confidence that they can handle an interrogation from opposing counsel.
Making sure the provider is very familiar with their medical record is another way to put them back in their comfort zone. The medical record is their jam – like a nice warm blanket. The more they know it, the easier it will be for them to testify to it and the more comfortable they will feel.
If you need help preparing for a healthcare provider‘s testimony, please reach out to us by calling 503-349-6663 or amber@zalbinlaw.com