What happens at a malpractice deposition
A California physician guide to deposition testimony, preparation with counsel, and the record that follows.
A malpractice deposition records your sworn account of the care. It can turn a clinical event from years earlier into a day of precise questions about what happened, what the record shows, and what you recall. Careful preparation with counsel helps you give complete and accurate testimony.
Who attends and what they do
A deposition is sworn testimony outside court. The physician, counsel, and a court reporter usually attend. A judge usually does not attend. If an insurer has accepted the matter and assigned counsel, that counsel represents the insured as the issued policy provides.
Plaintiff's counsel asks the questions. You answer under oath. The court reporter records each question and answer. Both sides can use the transcript during expert review, motions, settlement, and trial.
California generally limits a witness deposition to seven hours of total testimony. Code of Civil Procedure section 2025.290 lists exceptions and permits court orders that can change the limit. The parties can also agree to a different limit.
Why the testimony matters
The deposition lets both sides evaluate your account of the care. It also shows how you explain clinical decisions under pressure.
Plaintiff's counsel will test the timeline, standard of care, informed consent, and causation. Counsel will also look for facts that support the plaintiff's expert.
Defense and plaintiff experts can read the transcript before they form opinions. A motion can quote it. Trial counsel can compare it with later testimony. An important inconsistency can damage credibility.
Prepare with defense counsel
Defense counsel prepares you for the deposition. Preparation usually includes the complaint, medical record, timeline, and disputed clinical decisions. Counsel also explains the questions that opposing counsel is likely to ask. Do not create a new clinical note to prepare for litigation.
Know what comes from memory and what comes from the record. Do not turn the record into a memory. If you do not remember a fact, say so.
Ask defense counsel about unfamiliar legal or medical language before the deposition. You should understand the plaintiff's theory and your defense.
Common testimony errors
- Guessing. Say "I do not recall" when that is true. Do not convert an estimate into sworn testimony.
- Giving more than the answer. Answer the question that counsel asked. Stop when the answer is complete.
- Arguing. Give factual answers. Defense counsel handles legal arguments and objections.
- Using absolutes. Words such as "always" and "never" can make an accurate answer false when one exception exists.
- Treating a source as a rule. A textbook or guideline can inform care without controlling every clinical decision.
- Answering a question with missing facts. Ask for clarification when a question is unclear. Keep the answer connected to the patient and care at issue.
During the deposition
Listen to the complete question. Pause before you answer. This gives defense counsel time to object and gives you time to think.
Ask for different wording when you do not understand a question. Do not answer the question that you expected to hear.
State what you know, remember, and do not remember. Do not guess. Use the medical record when the question requires it.
Ask for a break when you need one. Tell defense counsel if fatigue or concentration affects your answers.
If you realize that an answer is inaccurate, tell defense counsel promptly and follow counsel's instructions for correcting the record. After the deposition, review the transcript under defense counsel's instructions.
Most litigated claims do not reach a verdict. The deposition can still affect discovery, expert review, and settlement discussion. Accurate testimony gives the legal process a reliable account of the care. It does not by itself decide liability or policy coverage.