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LNCtips.com: The Yes/No Deposition

There's a myth about depositions of defendants involved in medical malpractice lawsuits.  The myth is this: Defendants, including nurses working at defendant healthcare organizations, should only answer, "Yes" or "No" when asked a question.  If you help defendants prepare for depositions, here's how the defendants REALLY need to respond.

Most attorneys want their clients to tell their side of the story without answering more than the question asked, volunteering opinions, or embellishing their testimony.  Attorneys frequently tell their clients not to narrate, and to answer only "Yes" or "No", when it's appropriate to do so.  Some clients feel that they should answer ALL questions with one of these two responses.  That's a misinterpretation of their attorney's instructions.

Let's consider a case of a lawsuite against a hospital, in which one of the allegations is that the plaintiff developed a decubitus. Here's an example of how a nurse should NOT reply to a question in a deposition."

Attorney:  Did Mr. Johnson develop a decubitus?
Nurse:      Yes. I guess he wasn't turned often enough.

In the above response, the nurse not only offered an opinion, but also implied that the nursing staff was negligent.  In this case, answering just "Yes" would have been appropriate.  However, sometimes answering just "Yes" or "No" doesn't sufficiently answer the question.  If an explanation is required, then the explanation should be stated.

Look what happens when the nurse responds with just a "Yes" or "No."

Attorney:  Does the hospital have a policy that prohibits diapering adult patients?
Nurse:      Yes.
Attorney:  Did you put a diaper on Mr. Johnson, even though the policy prohibits diapering adult patients?
Nurse:      Yes.
Attorney:  Did Mr. Johnson develop a decubitus on his back?
Nurse:      Yes.

By answering only "Yes" or "No," this nurse's answers make the nurse appear to be negligent.  From the questions and the nurses' responses, it appears that the nurse diapered the patient, and the patient developed a decubitus due to the diaper.  Let's look at the same scenario, but with the nurse explaining her actions in two of her responses.

Attorney:  Does the hospital have a policy that prohibits diapering adult patients?
Nurse:      Yes.
Attorney:  Did you put a diaper on Mr. Johnson, even though the policy prohibits diapering adult patients?
Nurse:     Well, I put a diaper on Mr. Johnson at his request and the request of his wife.  Mr. Johnson wears diapers at home.  I explained the policy to them, but they were insistent.  I checked his skin and he didn't have any skin breakdown.  I also spoke to the nursing supervisor and the patient's physician, and we all felt that it would be in the patient's best interest to continue to wear diapers, as he had done at home.
Attorney:  Did Mr. Johnson develop a decubitus on his back?
Nurse:       Yes, he developed a decubitus on his upper back.

Because the nurse's explanation seems reasonable, the nurse no longer appears to be negligent.  Instead, it appears as if s/he used nursing judgment to meet a patient's request.  What's more, the decubitus that formed was nowhere near the patient's diapered area.

You can see that "Yes" and "No" answers often don't tell the entire story.  Legal nurse consultants can reinforce attorney instructions to help clients understand when these one-word responses are appropriate and when they're not.

...Katy Jones