Difficult Deposition Subjects for Nurse Defendants

Difficult Deposition Subjects for Nurse Defendant

In the American justice system, any deposition starts with the following oath: “Do you solemnly swear or affirm to tell the truth, the whole truth and nothing but the truth?” This is a sobering moment for any nurse. 

A deposition is the part of a lawsuit in which the nurse will answer detailed questions about a patient’s care. These include the nurse’s usual custom and practice in nursing, as well as the specific care and documentation for the particular patient in question. The experience is different from regular nursing actions or even social norms and can feel very intimidating. 

Recommended podcast series: Where Healthcare and Legal Meet 

What nurse defendants need to know about lawsuits 

A lawsuit results from an accusation of negligence, or the failure to render care such as a reasonably prudent and careful person would do under the same or similar circumstances. In a civil lawsuit, the plaintiff, or the person alleging damage, must prove that: 

  1. There was a duty owed to the plaintiff; 
  2. That duty was breached; 
  3. That the patient sustained damages as a result of this breach. 

Deposition preparation and testimony instructions 

Before the deposition, the defense attorney will meet with the nurse to review the case and the nurse’s documentation. During this time, the attorney will also prepare the nurse for his or her testimony. They will go over the kind of questions they should expect, such as education, job experience, what kind of patient care they provided, and any related documentation.  

Attorneys will usually advise the nurse not to answer a question if they don’t fully understand it. A witness can always ask for the attorney to rephrase the question or make it more specific. 

Attorney-provided guidelines instruct nurses to: 

  • Tell the truth 
  • Not guess if they aren’t able to remember it properly 
  • Pause before answering to give the defense attorney an opportunity to object 

In many cases, the attorney will ask the nurse to identify any personal notes or journal entries they made regarding the case.  

One of the most difficult instructions to abide by is to answer only what is asked. Resist the nursing instinct to help someone who wants to know more. Do not elaborate; a witness’s purpose is not to “teach” the plaintiff attorney. 

Perhaps the hardest part of preparation can be the requirement to not discuss the case or anything about the circumstances of care once the nurse has been summoned for a deposition. This includes not sharing this information with other caregivers, friends, or spouse. 

Notable challenges for nurse defendants 

Plaintiff attorneys focus on the following aspects that can be difficult to answer unless the nurse has deliberately prepared for them. 

You don’t remember the patient. 

Most nurses do not have any independent memory of the patient, as many depositions take place years after the incident happened. This is acceptable; in fact, expected. 

Answer based on your usual custom and practice for this type of patient or need. For instance, in a 1-day postoperative patient, it is your custom and practice to see if the dressing is dry and intact, even if you do not remember doing that action for this particular patient. 

You have an omission in documentation. 

Most documentation lacks something somewhere. Despite what was said in nursing school, there is some distinction between the standard of care for charting versus the standard of care in providing direct patient care. 

Admit an isolated documentation lack when it occurs. An appropriate response could be “The record doesn’t reveal that was done, but my usual custom and practice is to do X.” Or, “I don’t remember if I did that or not, but I agree the documentation does not indicate I did it.” 

Recommended course: Legal Issues for Nursing Documentation, 4th Edition 

In addition, care often is implied in another place. In one case, the nurse did not document the febrile child’s temperature after administering acetaminophen. A nursing reassessment was substantiated, though, by the narrative description of the child’s improved physical status. 

Similarly, documentation elsewhere may help justify that the care was adequate. If the child’s temperature is lower 2 hours later when the next shift started, the child obviously had been improving during the time in question. 

You ignored this patient. 

The plaintiff attorney will point out that there is no contact documented for the patient over a certain period of time. The implication is the patient was neglected during that time. This type of question is another version of the charting omission criticism and can be handled similarly. 

In reality, patients do not have constant documentation or attention unless they are in an emergent or unstable state. An appropriate response could be, “I agree I did not document any contact during that time. I may, however, have had some. I do not document all my contacts with a patient unless they are pertinent.” This is especially true if you are using charting by exception. 

You overlooked an abnormal finding. 

Nurses not only recognize the existence of a patient’s deviation from “normal,” but also place it in the context of the patient’s overall condition to identify its importance. Attorneys will sometimes pick out a single value, such as a higher than normal blood pressure or pulse reading. The nurse is then asked if that is not a known sign of a more ominous condition. The implication is the nurse missed acting on a key finding that led to the patient’s demise. 

Significant symptoms rarely occur in pure isolation. Many other contributory factors can cause an isolated variation, such as anxiety or pain. A key distinction is whether other related signs or symptoms of this ominous state were present. A good response is to indicate that, hypothetically, this isolated abnormality can be a signal of a problem. In this patient, it did not when the whole picture or trend is considered. 

You did not follow the policy. 

From an outside perspective, the logical train of thought is simple. 

  • Policies are important. 
  • You did not follow this policy. 
  • Conclusion: The standard of care was not met. 

This is more likely to occur if the facility’s policies are written with the ideal in mind and use exact numbers. For instance, the policy is to recheck a patient every 30 minutes. Therefore, if the nurse did not check the patient until 45 minutes later, the policy was violated. 

Clarify that the policy is a guideline the nurse applies using nursing judgment and critical thinking to an individual’s unique situation. An individual patient may actually need rechecked after 15 minutes. In addition, be prepared to show in the documentation that good nursing care was provided despite some isolated variation. 

You’re invited to comment on a colleague’s care. 

Attorneys will sometimes seek to divide and conquer. No one wins if it turns into a blame game. As a whole, the defense, especially in the beginning, is a collective one. After all, if the other caregiver was really so bad, why wasn’t it reported? A safe response is to indicate you cannot speak for another person’s practice, only the care you rendered. 

One deposition had this exchange: 

Plaintiff’s attorney: “Why didn’t you tell the doctor about this patient’s new complaint before discharging the patient?” 

Nurse: “Because Dr. Jones has made it perfectly clear he doesn’t care one hoot about what we think.” 

Plaintiff’s attorney: “Oh.” 

Nurse: “Not one iota. You might as well talk to the wind.” 

This interaction demonstrates a lack of collegiality, which could have been a contributing factor. More than 60 percent of sentinel events involve poor communication. 

However, these interpersonal issues did not excuse the nurse. Telling the physician a new patient complaint is not the same as giving a personal opinion.  

TeamSTEPPS, an evidence-based teamwork system aimed at optimizing patient outcomes by improving communication and other teamwork skills among healthcare professionals, indicates the nurse has an obligation to voice a safety concern twice and then use stronger action if the outcome is not acceptable. The plaintiff attorney’s very next question involved the nurse’s responsibility to be a patient advocate regardless. 

Be prepared as a nurse defendant 

Preparing answer strategies cannot compensate for inadequate care. Prepare for a deposition by knowing how to explain your usual custom and practice, any exception to that and why the nursing decisions were made. Knowing what to expect and how to respond can help enable the nurse to place his or her patient care in the best possible light. 


Polly Gerber Zimmermann, MS, MBA, RN, CEN, FAEN
Polly Gerber Zimmerman is an assistant professor of nursing at the Harry S Truman College, Chicago.