Most medics would rather endure an enema than face the prospect of testifying in court. But you need to be prepared for the day when a process server pays a visit to your station and delivers a document that begins:
“YOU ARE COMMANDED to appear at the time, date and place set forth below to testify … [and further] … You, or your representatives, must bring with you the following documents, electronically stored information or objects, and permit their inspection, copying, testing or sampling of the material…”
There follows a long list of items that may include patient care forms, protocols, policies and procedures manuals, and even your income tax returns for the last few years.
After the shock wears off, you set about trying to understand why this affliction has been visited upon you. The best case scenario is one where you simply rendered care to a patient who’s suing the person who injured her, or where you rendered care to the victim of a crime. You’re simply being called to testify to the extent of the patient’s injuries as you found them—a so-called “fact witness.”
The worst case is when you’re the defendant in a lawsuit, being sued for damages by a former patient. You’re being called to a deposition where you are, essentially, going to be made to give testimony against yourself.
In either case there are some important things to understand. First, even though the lawyers may seem intent upon ripping your heart out and depicting you as Satan’s helper, for them it is not personal—it’s just business. They have a job to do, and they do it routinely, the same way that you start IVs and dispense oxygen. It’s just their job.
Second, there are ways for you to prepare and present yourself in the best possible light, making the opposing lawyer’s job hard.
Here are some basic rules for testifying, either in court or at a deposition.
Review every document available pertaining to the matter in question, starting with the patient care report. It’s usually at this point when you’ll fully begin to understand why you should have paid better attention in class during that boring session on documentation, the one where you fiddled with your smartphone and tweeted and played solitaire during the lecture.
You see, the opposing lawyer will study your PCR in great detail, have a paramedic expert go over it with a fine-toothed comb looking for defects, study your protocols and standing orders, search textbooks and journals for current standards of care, and compare your actions against them.
We’ve all heard the adage, “if it wasn’t documented, it wasn’t done.” Keep that in mind as you review your documentation. Since you’ll often provide testimony years after the fact, don’t pretend you can remember details of the case, because you won’t. You’re at the mercy of your own documentation.
So, review your PCR and the story it tells, because that’s the story it will also tell the jury, if there is one, or the judge if there’s not. But don’t try to memorize your testimony. That doesn’t work. Begin your review days before the scheduled testimony and go over it again and again. The better you know the case, the better you’ll do.
In a typical trial there are going to be many witnesses. While jurors will listen attentively to you, they’ll inevitably forget exactly what you said or confuse what other witnesses said with your testimony. But when they retire to the jury room to deliberate, your documentation will be there for them to study. This is the document they’ll use to remember what you said, and this is the document that will tell your story. This is your chance to tell a story that’s either favorable or devastating to your side. At minimum, your documentation should prove you provided the requisite standard of care.