A Tale of Truth

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Difficult deposition subjects for nurse defendants

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

A deposition is the process in a lawsuit during which the nurse testifying 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 this particular patient. The experience is different from regular nursing actions or even social norms. It can feel very intimidating.

Lay of the Land

A lawsuit results from an accusation of negligence, the failure to render care such as a reasonably prudent and careful person would do under the same or similar circumstances. The plaintiff, or person alleging damage, must prove there was a duty owed that was breached and that the patient sustained damages as a result of this breach.

The defense attorney will meet with the nurse prior to the deposition to review the case and the nurse’s documentation, as well as for testimony preparation. This short meeting usually includes standard questions to expect, such as education, job experience, patient care given and related documentation. Instructions state to not answer a question if it is not understood. A witness can always ask for the attorney to rephrase the question or make it more specific.

Attorney-provided guidelines advise nurses to tell the truth, not guess if something is not remembered, and pause before answering to give the defense attorney an opportunity to object. The nurse often is asked to identify any personal notes or journal entries that were 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, the fact there is a deposition or anything about the circumstances of care once the nurse has been summoned for a deposition about the case. This includes not sharing this information with other caregivers, friends or spouse.

Troublesome Areas

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 since the deposition is 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. The plaintiff attorney may actually quote, “if it isn’t charted, it isn’t done.” 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 É” Or, “I don’t remember if I did that or not, but I agree the documentation does not indicate I did it.”

In addition, the 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 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 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.

What about this 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.
Not following a facility policy can appear to be a problem through a seemingly commonsense connection.

  • 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.

Sharing your thoughts of 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 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 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.1

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.2 The plaintiff attorney’s very next question involved the nurse’s responsibility to be a patient advocate regardless.

Be Prepared

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 her patient care in the best possible light.

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About Author

Polly Gerber Zimmermann, MS, MBA, RN, CEN, FAEN

Polly Gerber Zimmerman is assistant professor of nursing at the Harry S Truman College, Chicago.

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