Questions to Ask a Doctor in a Deposition
These questions are for anyone who has to depose a physician in a personal injury or malpractice case: a lawyer early in practice, a paralegal drafting the outline, or a party handling their own case. They are grouped the way the session tends to run, from background through records and history, diagnosis and causation, standard of care, treatment and prognosis, and finally fees and the limits of the opinions, and the notes flag which ones suit a treating doctor and which a retained expert. What a medical witness can be asked and made to produce changes from one court to the next, so treat the notes as preparation to check against your own rules, not as legal or medical advice.
The questions
Each question, and why to ask it
Background
Doctor, what is your specialty, and are you board certified in it?
Why ask it
Ask which board, the year, and whether the certificate has been kept current. A doctor about to give opinions outside the field they trained in is worth spotting in the first five minutes, so note the gap now and come back to it when the opinions start.
Where are you licensed to practice, and has any license or hospital privilege ever been restricted, suspended or given up?
Why ask it
Look the doctor up on the medical board's public site beforehand so you already know what the answer should be. Most say no and you move on. If it is a yes, take the year, the body that acted and what it was about, and find out later whether your court would let it be used.
Is this copy of your CV current, and is there anything you would add or correct?
Why ask it
Have it marked as an exhibit and confirmed, which spares you an hour of questions about schooling. Then go to the gaps: a missing year, a residency left early, a hospital appointment that ended. Dull explanations are the usual ones, and you want them on the page anyway.
How is your working week divided between seeing patients, teaching, research and reviewing cases for lawyers?
Why ask it
Push for rough percentages and for when the mix last changed. A surgeon who stopped operating some years ago and now mostly reviews files is a different witness from one in clinic four days a week. Some places require a malpractice expert to be in active practice, so ask how it works in yours.
How often do you treat this condition or perform this procedure yourself, and when did you last do so?
Why ask it
'Regularly' is not an answer, so ask for a number per month or per year and the date of the most recent one. Strong credentials in a neighboring area can hide thin hands-on experience with the exact thing in dispute, and a modest CV can hide a great deal of it.
Have you ever been named in a malpractice claim or lawsuit yourself?
Why ask it
Ask it once, in the same voice as the licensing question, and expect an objection. For a yes, take the year, the allegation in a sentence, how it ended and whether it involved the condition or procedure at issue here. A claim is not a finding against anyone, and whether a jury would ever hear about it is for your court to say.
Have you published or lectured on this condition, and does anything you have written differ from what you will say today?
Why ask it
The CV lists the titles, so read them before the deposition if you can. A chapter recommending one approach from a doctor now defending another is something a jury can follow with no medical training. If the answer is that nothing differs, you have that on the record to test.
Are you here as one of this patient's treating doctors, as an expert retained by one side, or as both?
Why ask it
You will normally know before you walk in; what you are listening for is 'both', the treating doctor who has since agreed to give opinions for one side. A treating doctor testifies from the chart and the care they gave, a retained expert from a file someone sent. Courts differ on how far a treating doctor may go into causation or future care without the disclosures required of an expert, so check before the day.
Who first contacted you about this case, when, and what were you asked to do?
Why ask it
For a retained expert. The date shows how long they have had the file, and the assignment shows its edges: someone asked only whether the surgery was needed has not been asked what caused the injury. Some courts shield what a lawyer and an expert say to each other, so expect an objection and know your rule.
Before today, did you speak or meet with a lawyer for either side about this patient?
Why ask it
For a treating doctor. Take the dates, who was in the room, how long it lasted, what papers were shown and whether the doctor was paid for the time. Whether a lawyer may talk privately with a patient's own doctor, and how much of that talk you may ask about, changes a great deal with where the case is filed.
Records and History
What records, images and other materials have you been given for this case?
Why ask it
Take the list one item at a time, with dates and page ranges where the doctor has them, and mark the list or the file as an exhibit. Follow with who picked what was sent and whether the doctor asked for anything that never arrived. An opinion formed on half a chart is easier to question than the doctor who formed it.
Did you bring your whole file today, including notes, billing records, intake forms and correspondence?
Why ask it
Name the parts one at a time, because 'the chart' rarely means all of it: the billing ledger, the questionnaire the patient filled in at the front desk, phone messages, letters to and from lawyers and insurers, the imaging discs. For each, ask whether it exists, where it is kept and whether anyone took pages out before today. With an electronic chart, find out whether the printout in front of you is everything the system holds or one view of it.
Did you examine the patient yourself, and how long did the examination take?
Why ask it
Mainly for a retained expert, who may have worked from paper alone. If there was an exam, get the date, the minutes spent face to face, who else was in the room and whether it was recorded. A single short visit set against a treating doctor's two years of appointments is a comparison you can leave to the jury.
When did you first see this patient, and how did they come to you?
Why ask it
For a treating doctor. The gap between the injury and the first visit matters to both sides, so pin the date to the chart. A referral from a lawyer is not improper, but the other side will want it known, so ask it plainly and take down who made the call.
Do you have any memory of this patient apart from what is written in your chart?
Why ask it
For a treating doctor, and worth asking early. Many will say no, having seen a great many patients since, which means the chart is the testimony and anything unwritten is hard to add later. If the answer is yes, ask what they recall that the notes leave out and why it stayed with them.
What did the patient tell you about how the injury happened, and where in your chart is that written?
Why ask it
Have the doctor read the entry into the record word for word, then ask whether those are the patient's words or the doctor's summary. Afterward, set it beside the accident report and the patient's own testimony. Small differences are normal; a different mechanism of injury is not small.
What did the patient report about earlier injuries, symptoms or treatment involving the same part of the body?
Why ask it
Check the intake form as well as the note, because patients often tick boxes they never mention aloud. If the doctor was told 'none' and you hold records showing otherwise, do not spring them yet. Get the answer down first, since it is the footing for asking later what would change the opinion.
Did you review any records from before the injury, and how far back do they go?
Why ask it
A causation opinion built with no earlier records rests on the patient's account of their own past. Ask whether the doctor wanted them, whether anyone offered, and whether seeing them would matter. 'It would not matter' is a bold answer worth having in writing.
Did you type this office note yourself, or did a scribe, a template or copied-forward text produce part of it?
Why ask it
Electronic charts repeat themselves: an exam section can carry the same normal findings for six visits because nobody changed the default. Go through one note asking which lines the doctor actually entered that day. Ask too whether the system logs later edits, and who could produce that log.
Have you read the other doctors' records, reports or deposition testimony in this case?
Why ask it
Find out which ones and when, and whether any were read after the doctor's own report was signed. Then ask where they agree with those doctors before you ask where they differ. Agreement from the other side's witness tends to be the part of the transcript you quote most.
Diagnosis and Causation
What did you find on physical examination, and which findings do not depend on what the patient says or does?
Why ask it
Doctors separate signs they can observe, such as swelling, muscle wasting or a changed reflex, from reports of pain and tests that turn on effort. Have each finding placed on one side or the other. Neither kind is worthless, but a diagnosis resting wholly on reported symptoms is only as firm as the reporting.
What is your diagnosis, and how would you explain it to a patient with no medical training?
Why ask it
Take the formal name first, spelled for the reporter, then the plain version. If this transcript or video may be shown at trial, the plain version is the one a jury will keep. A doctor who cannot put it simply sometimes has a description of symptoms and not a diagnosis.
What other explanations for these symptoms did you consider, and how did you rule each one out?
Why ask it
A careful physician can name the alternatives and the test, finding or reasoning that set each aside. Worry about the answer 'there was no need to consider anything else'. For every alternative named, ask whether it was excluded or only judged less likely.
What, in your opinion, caused this condition, and what do you rely on besides the patient's own account?
Why ask it
Listen for independent supports: imaging, the timing shown in the records, the mechanism of the injury, the absence of earlier complaints. If the honest answer is that symptoms began after the event and the patient said so, the opinion stands or falls with the patient's credibility, which is useful to know whichever side you are on.
Do you hold that opinion as more likely than not, or as something that is possible?
Why ask it
Courts generally look for a stated level of confidence from a medical witness, and the exact phrase they expect differs, so learn yours and use it in the question. 'Could have', 'consistent with' and 'cannot rule out' are softer than they sound. When you hear one, ask whether the doctor can go further.
Which findings on the scans are new since the injury, and which were probably there before it?
Why ask it
Ask first whether the doctor looked at the images or only read the radiologist's report. Wear-and-tear changes build over years, and a doctor should be able to say how they tell old from recent, or admit they cannot from one film. Earlier imaging of the same area settles a good deal, so ask whether anyone looked for it.
Can you say how much of the patient's present condition comes from this event and how much from something that was already there?
Why ask it
Some doctors will give a split and some say it cannot be divided, and either answer shapes the damages. Ask what the patient would probably be like today had the event never happened. How the law treats a worsened earlier condition differs by place, so check before you decide which answer helps.
Is there anything in the records that does not fit your diagnosis, and how do you account for it?
Why ask it
Experienced witnesses name the awkward entry themselves and explain it, which tells you they read the whole chart. If the answer is 'nothing', put the normal exam or the pain-free visit in front of them and ask again. Do it without heat, because the explanation is what you came for.
Standard of Care
What is the standard of care that applied to this patient's situation, in your own words?
Why ask it
For a malpractice case; skip this group in an ordinary injury claim. You want one sentence you can read back at trial. Then ask what definition of the standard the doctor is using and who supplied it, because how the law defines it (national or local, same specialty or not) varies from place to place.
Where does that standard come from: published guidelines, the medical literature, your training or the way you practice?
Why ask it
Ask for names: the society, the guideline, the year. 'It is what I would have done' describes a preference, and many doctors will concede that careful colleagues do it differently. If a guideline is cited, get a copy marked and read its own opening caveats later.
Which textbooks, journals or guidelines do you rely on in your own practice for this condition?
Why ask it
A practiced witness may sidestep the word 'authoritative' and say only that a text is generally reliable, with exceptions. Take the titles whatever label they are given, along with any source cited in the doctor's own report. The steps for putting a published passage to a medical witness at trial are not the same everywhere, so learn the ones your court expects.
What exactly did the provider do, or fail to do, that fell short of that standard, and on what date?
Why ask it
Number the criticisms as they come and tie each to a chart entry. Keep asking for the next one until the doctor says the list is complete, then read it back. A closed list in the transcript makes a brand-new criticism at trial much harder to bring in.
What should have been done at that point instead?
Why ask it
Every criticism needs its alternative: the test that should have been ordered, the referral, the earlier return visit. Ask what information the provider had in hand at that moment, not what is known now. Hindsight is a common weakness in a standard of care opinion, and this is where it shows.
If that had been done, would the outcome more likely than not have been different, and in what way?
Why ask it
A lapse in care and the harm it caused are separate links, and an expert may be firm on the first and vague on the second. Ask for the mechanism: found how much sooner, treated with what, with what expected result. Some places also recognize a reduced chance of a better outcome, so ask how that works where you are.
Is there more than one accepted way to manage this condition, and was the approach taken here one of them?
Why ask it
Useful from the defense side and fair from either. If the expert agrees that reasonable doctors choose differently, follow by asking what took this choice outside that range. A flat 'there is only one way' can be tested against the guidelines and the expert's own writing.
Is this outcome a recognized risk of the procedure that can happen even when it is performed correctly?
Why ask it
Ask how often the doctor has seen it in their own patients. The consent form may list the very complication, so have it marked and put in front of the witness. A yes does not end a claim, because the next question is what about this case points to an error and not to bad luck.
What was the patient told beforehand about the risks and the alternatives, and who told them?
Why ask it
The signed form proves a signature, and the conversation is usually what is disputed. Ask who had it, how long before the procedure, how long it took and what the chart records beyond 'risks and benefits discussed'. How much a patient has to be told is measured differently from place to place, so read your standard before framing the follow-ups.
Do you have any criticism of another provider's care, or of anything the patient did or did not do?
Why ask it
This shows whether blame is going to be shifted to someone who is not in the room: the emergency physician, the nurse, the patient who missed a follow-up. Get a clear yes or no for each name. A no today makes a new target at trial awkward to introduce.
Treatment and Prognosis
Was the treatment you gave, or reviewed, reasonable and made necessary by this injury?
Why ask it
Go by category instead of taking one yes for the lot: the emergency visit, the therapy, the injections, the surgery. A doctor may stand behind their own care and decline to speak for a chiropractor's forty visits. The bills are a separate subject, so ask whether the doctor has ever seen them before asking whether the charges were reasonable.
Did the patient keep their appointments and follow your advice, and where are the gaps in treatment?
Why ask it
Have the doctor find the gaps in the chart and give the dates. Then ask what, if anything, the notes say about why: money, insurance, feeling better, moving away. An unexplained six months reads very differently from a documented loss of coverage.
Has the patient recovered as far as you expect them to, and when did they reach that point?
Why ask it
Doctors use different terms for a plateau, so ask which one is in the chart and on what date. If recovery is still under way, any talk of permanence is early, and you can ask when the doctor would be able to say. Note the date of the last visit too: a prognosis from an exam a year old is thin.
Is any part of this condition permanent, and what is that opinion based on?
Why ask it
Ask whether a rating was given, which guide or method was used, and who did the measuring. Then ask what 'permanent' means in daily terms for this patient. A rating is only expected in some kinds of claim, so the lack of one may mean nothing.
What future treatment do you expect this patient to need, and how likely is each item?
Why ask it
Take each one separately: what, how often, for how many years. 'May need surgery someday' and 'will probably need surgery within five years' are different testimony, and many courts treat them differently when it comes to future costs. Ask whether the doctor has recommended it to the patient yet, and whether the patient has agreed.
What would that future care cost, and where do your figures come from?
Why ask it
Some doctors quote their own office charges, some defer to a life care planner, and some have never looked. Ask whether the number is what is billed or what is typically paid: the two can be far apart, and courts do not agree on which one counts.
What can the patient not do now, and what restrictions have you put in writing?
Why ask it
Ask for the work notes and restriction slips themselves, with dates. Find out whether each limit came from testing, such as a functional capacity evaluation, or from what the patient reported being able to manage. Then ask whether the doctor ever lifted a restriction, and when.
If the patient were seen on video lifting, running or working a full day, would that fit the limits you have described?
Why ask it
Put it as a hypothetical with specifics: a weight, a distance, a length of time. Most doctors will say what would and would not surprise them, and that marks the line for later. Whether surveillance must be disclosed before a deposition differs from court to court, so know your rule before you hint at having any.
Fees and Limits
What are you charging for your time on this case, and what have you billed so far?
Why ask it
Get the rates for review, deposition and trial separately, the hours to date and the invoices. High fees are ordinary for physicians and rarely surprise anyone; a total that dwarfs the work described is another matter. Some examiners go on to ask what share of the doctor's yearly income comes from legal work, and courts are not alike on whether that has to be answered.
Is any bill for this patient's care unpaid, and does payment depend on how the case comes out?
Why ask it
For a treating doctor. Ask about a lien, a letter of protection or any arrangement with the patient's lawyer, and the balance owing. Such arrangements exist because some patients have no coverage, and a doctor who explains theirs calmly loses little; evasion about it costs more than the fact.
How many times have you testified in the past few years, and how does that divide between injured people and defendants?
Why ask it
Ask for the list of cases with the lawyers' names; in some courts a retained expert has to provide one covering a set number of years. Earlier transcripts are worth ordering, since doctors repeat themselves and occasionally contradict themselves. A lopsided split is a fair point and not, by itself, proof of anything.
Have you worked with this law firm, this insurer or this expert referral service before, and how often?
Why ask it
A number is the goal: five files in ten years or fifty. Ask as well whether the doctor advertises for legal work or is listed with a service that matches experts to lawyers. Repeat business is something the other side will have to explain, so take it down plainly and move on.
Has a judge ever kept your testimony out or limited what you were allowed to say?
Why ask it
Rare, and a yes needs the case, the court, the year and the reason. Search for the doctor's name in published decisions beforehand so the answer can be checked. If it is no, one line of transcript is all it costs you.
Who wrote the first draft of your report, and what changed before the final version?
Why ask it
A report whose phrasing matches the lawyer's letter raises the question of whose opinions it holds. Courts differ sharply on whether drafts and a lawyer's edits can be asked about at all, so read your rule and expect an objection. Where it is allowed, ask what was added, what was removed and at whose suggestion.
Which parts of your opinion rest on something you were told and did not see in the records yourself?
Why ask it
Typical ones are how the accident happened, the absence of earlier symptoms and what the patient could do beforehand. List them, then take each in turn and ask whether the opinion would hold if it proved untrue. Most doctors concede it would not, and from then on the dispute is about that fact and not about the medicine.
Are there subjects you will not be giving opinions on, such as accident reconstruction, lost earnings or another specialty's care?
Why ask it
Name the neighboring fields one by one and collect a no for each. This fences the doctor in: an orthopedist who has disclaimed biomechanics today should not be explaining crash forces at trial. Whether a court would hold them to it is its own question, but the transcript gives you the argument.
Have you now told me every opinion you hold in this case and the basis for each?
Why ask it
Read your numbered list back before asking, so the yes attaches to something specific. Then ask what work is still planned: another exam, more records, a supplemental report. The rules on adding opinions after a deposition vary, so say on the record that you would want to resume if new ones appear, and find out what your court allows.
Deposing a physician without arguing medicine
Practical guidance for the conversation itself
Groundwork before the doctor is in the chair
Work out which kind of doctor you are deposing
A treating doctor knows the patient and the chart; a retained expert knows a file and an assignment. The rules on reports, disclosure, fees and how far the opinions may go are often different for the two, and they change with the court. Find the rule on treating and expert witnesses for the court your case is in before you write a single question.
Read the chart before the report
Go through every visit in date order and make a one-page timeline: the complaint, the findings, what was ordered, what the patient was told. The report is the doctor's summary of that record, and the places where the two differ are your outline.
Learn enough of the medicine to follow up
Look up every abbreviation and the basic anatomy, and write the plain meaning beside each term. If your side has its own doctor or a nurse consultant, ask which three questions they would put to this witness. You do not need to win an argument about medicine, only to recognize an answer that dodged.
Find what the doctor has said before
The CV lists publications, the licensing board keeps a public record, and lawyers who have met this witness may have transcripts. Time spent on these sometimes turns up the one exhibit the doctor did not expect to see.
Settle time and payment in advance
Physicians usually charge for deposition time, and who pays, how much notice is needed and how long the session may run are set by court rule or agreed between the sides. Get it in writing beforehand, and put your must-have topics where they will be reached if the doctor has to leave at a fixed hour.
Treating doctor or retained expert
With a treating doctor, stay close to the chart
Use Records and History, the examination findings at the start of Diagnosis and Causation, and Treatment and Prognosis. Go visit by visit with the notes marked as exhibits. Many treating doctors have given the lawsuit little thought, and their unrehearsed answers on causation can help either side.
With a retained expert, begin with the assignment
Start with who called, what was sent and what question was put, then take every opinion and its basis. Fees and Limits matters most here. Have the report marked and work through it paragraph by paragraph so nothing in it goes unasked.
Skip what the case does not raise
Standard of Care is for malpractice claims. In an ordinary injury case nobody is saying the doctor did anything wrong, and asking as if they did only puts a neutral witness on guard.
Know whether the testimony will be played at trial
In some courts a doctor's deposition is recorded on video to be shown in place of live testimony, and the questioning then has to work for a jury and not only for you. Ask how physician testimony is usually presented where you are, because it changes how open your questions should be and how much you hold back.
Pinning down a medical opinion
Get each opinion in one sentence
Ask the doctor to state the opinion, then say it back in plain words and have them agree or correct you. Number each one aloud. A transcript that says 'opinion three' is far easier to use than one where the opinions are scattered through forty pages of narrative.
Take the basis item by item
For every opinion, ask what it rests on: which record, which finding, which study, which part of the patient's account. Write the list under the opinion and read it back. What is missing from the list is as useful as what is on it.
Ask the two-part questions in two parts
Many entries above have two halves because that is how the subject runs, not because they belong in one breath. Put the first half, take the answer, then put the second. A single yes to both leaves a transcript nobody can quote for either, and it is the easiest objection for the other side to make.
Listen for the hedges
'Possible', 'could be related' and 'cannot be excluded' all stop short of a firm opinion. When one goes by, ask whether the doctor is able to put it more strongly, and take the answer whichever way it falls.
Ask for plain words every time
When a term goes by that you could not explain to a neighbor, stop and ask what it means. Doing so is not a show of ignorance: a judge or jury reading the page later will need the same translation.
Close the list
End each subject by asking whether there is anything further, and end the day by reading back every opinion and asking whether the list is complete. Note on the record any work the doctor still plans to do.
Where a doctor's deposition goes wrong
Debating the medicine
You will not out-argue a physician in their own field, and the attempt gives them room for a lecture. Ask what they did, what they read, what they assumed and what they did not know. Those answers are facts, and facts are what you can test.
Treating the report as the whole file
Intake forms, pain diagrams, nurses' notes, phone messages and billing codes often say things the typed report leaves out. Ask for the complete chart and look at the pages nobody summarized.
Showing every card, or none
If the doctor will appear at trial, a contradiction revealed today is one they will have explained by then. If this deposition is the testimony the jury will see, holding it back wastes it. Decide which situation you are in before you walk in.
Leaving handwriting and shorthand unread
A scrawled entry or a string of abbreviations means nothing on a transcript until the doctor has read it aloud. Have each one read word for word, with the abbreviations spelled out, before you ask anything about it. Now and then the doctor cannot make it out either, and that belongs on the record as well.
Forgetting how the witness looks to a jury
A jury may well arrive inclined to trust a doctor, and the one who treated the patient most of all. Sharp questioning that would be fair with a hired witness can look like bullying of the person who cared for the patient. Keep your voice even and let the answers speak.