Prevention

The good news is that the scenario in the vignette outlined in part 1 of this article is preventable; the bad news is that it continues to occur every day, reaping devastating and unnecessary financial and emotional repercussions in the medical industry. In order to appreciate the financial consequences that result from poor witness testimony, one only need consider that approximately 85,000 medical malpractice lawsuits are filed each year. In 2010 alone, of the reported medical malpractice verdicts and settlements, 126 of them were over $1 million totaling approximately $615 million (mean verdict amount of $9 million). Importantly, these figures only represent the reported verdicts and settlements and do not account for any of the verdicts and settlements below $1 million. Considering these figures alone, the financial exposure to insurance carriers, self-insured hospitals, and the medical industry in general is staggering. And, perhaps as important, when a caring, professional, and unsuspecting nurse is not properly prepared for the legal and non-legal aspects of her testimony, the emotional and psychological toll taken is immense. Pre- and post-deposition, nurses often report significantly elevated levels of anxiety and depressive symptoms that last for months, and sometimes years. 

An investment in a prevention program is the key to successful nurse depositions. In consideration of the inherent challenges nurses face in the deposition and the financial risks, a collaborative approach to witness preparation is essential. This approach requires a joint effort between the legal team and a qualified witness trainer with expertise in litigation psychology, witness psychology, and communication science. 

Just as it is crucial to address the legal/factual elements of the case, the same attention must be given to the non-legal aspects of deposition testimony, which are rooted in the fields of psychology and communication science. A Chicago-based medical malpractice attorney had the following to say in this regard: “Because of your expertise in psychology and witness preparation, you were able to diagnose and unearth problems that were preventing this witness from being an effective communicator in a matter of minutes, problems which this witness did not reveal to me for years while the case was pending. I was impressed.”

In terms of medical malpractice litigation, a qualified witness trainer who is well-versed in the emotional, psychological, and cognitive struggles nurses face in the adversarial legal arena must be included as a vital member of the litigation team. This trainer understands the science of legal communication and trial psychology and has an intimate understanding of the underlying reasons nurses struggle in the deposition. Only then can nurses’ challenges be assessed, addressed and resolved, and catastrophes averted. In this regard, a Missouri-based medical malpractice attorney said the following: “Nurses can be difficult witnesses.  Their background and nature require a different approach than preparation of standard fact witnesses.  Your insight into why they are a challenge helps both the nurse and counsel prepare for what are frequently the most important depositions in a malpractice case.  Your help is invaluable!”

Medical insurers have found that the inclusion of witness trainers, who address this non-legal side of witness testimony, greatly enhances witness performance in depositions. The result is that thousands, if not millions, of dollars per case can be protected through outright dismissal from the case, lower settlements, and more frequent defense verdicts at trial. 

Consider this email from a national medical insurer claims manager, “Remember our favorite nurses…?? Plaintiff has agreed to dismiss the entire case!!!!! You honestly saved me thousands and thousands of dollars on defending this case with your help preparing these witnesses!! I can’t thank you enough!!” 

Key Things to Remember When Working with Nurses:

• Avoid Last-Minute Preparation – Nurses sometimes require more than one training session for optimal performance in the deposition. If training is put off to the last minute, some of the most important behavioral and attitudinal changes will not take place because time simply runs out.
  
  

• Do Not Rely on Social Evaluations – Many nurses thrive in the work setting and in social environments, including informal discussions of their case. However, a good skill set socially can often work against a nurse in the deposition. A communication assessment, tailored for the psycholegal context wherein depositions exist, is vital to accurately identify potential problem areas and to effectively address them before they manifest themselves in the deposition.
  
  

• Provide Emotional Support – It is important to support nurse deponents emotionally. Ask your nurse how she is “holding up emotionally,” give her “permission” to vent her negative feelings, and remain open to listening to her concerns and fears.
  
  

• Establish Trust – Many nurses will be wary of anything or anyone associated with the litigation process, including defense counsel. It is important to emphasize to nurse witnesses that you are there to help them, you care about them, and you are going to supply them with the necessary tools to navigate the deposition safely.
  
  

• Reassure Nurses – A pervasive belief among nurses who are deposed is that they are at risk of losing their jobs, their licenses, their reputations, and possibly even their livelihoods. It is important to address these concerns and to eliminate inaccurate beliefs and assumptions with nurses as early as possible in the litigation process.
  
  

• Distinguish Charting from Causation – Plaintiff’s counsel will always find something “incomplete” in the charting. Nurses are exceedingly vulnerable in this regard during depositions and need to embrace the concept that patient care trumps charting, and that something “missing” from the chart is not a cause of the patient’s harm.
  
  

• Teach the Standard of Care – Nurses mistakenly believe that something less than perfection is a breach in the standard of care. For example, nurses often believe that a bad outcome, a missing chart entry, or a deviation from hospital policies are all per se breaches in the standard of care. Thus, nurses need to be taught what the standard of care means in the legal context, how it applies to the care they rendered, and how plaintiff’s counsel will attempt to use it in the deposition. Nurses must be armed so they can identify and handle all of the various forms of the standard of care questions in the deposition.