I think we are so casual about what we write in our texts , especially in medicine , we have really hard jobs and often we blow steam off through sarcasm , through kind of this dark humor and it ’ s really hard to sit on a stand and listen to something that you ’ ve said in a text message that was really just meant to be humorous , kind of blowing off steam if you ’ re frustrated but it it ’ s horrifying to other people .”
Kroll explained that interrogatories are written questions from one party to the other pertinent to the case and they offer an opportunity to better understand the facts . The findings from these interrogatories inform if the case moves forward .
A request for production is a request from one party to the other to produce documents related to facts of the case , and reasonable efforts to find the documents must be made . Kroll said that strong documentation management can make this process much easier . Redaction to protect private information is often needed , and it is important to understand early who is responsible for redaction , as well as to request resources or outsource this process .
Depositions are statements under oath that are recorded and often video-taped and have the potential to be played at trial . They are limited in scope and can produce significant numbers of objections if the case goes to court .
Requests for admission establish facts of the case that both sides agree are true and represent a way to confirm the uncontested facts of the case . For example , an admission may be , “ The measles outbreak of 2019 was transmitted due to un- or under-vaccinated individuals .”
As Kroll explained in her presentation , protecting information from discoverability involves the recognition of the need for a confidential quality-process review , and IPs need to know what is protected from disclosure . But the fear of discovery can create tension among clinicians and IPs who want to focus on the patient-care process without undue pressure of thinking about how it would play in a courtroom . Kroll also cautioned about potential legal “ slippery slopes ” including email communications with findings that can open a quality review process to discoverability .
“ I think it is healthy to have an awareness , especially around text messaging ,” Kroll emphasizes . “ I think we are so casual about what we write in our texts , especially in medicine , we have really hard jobs and often we blow steam off through sarcasm , through kind of this dark humor and it ’ s really hard to sit on a stand and listen to something that you ’ ve said in a text message that was really just meant to be humorous , kind of blowing off steam if you ’ re frustrated but it it ’ s horrifying to other people .”
Discoverable documentation can include emails , text messages , informal communications such as intercompany messages , as well as meeting notes outside of quality-umbrella protections . Kroll says it ’ s advisable to establish internal team norms in collaboration with the healthcare organization ’ s risk management and legal departments .
Additionally , Kroll cautioned clinicians about their oral communications , urging them to avoid humor , becoming casual or unprofessional — especially external to the organization . For example , Kroll pointed to an actual verbal communication from an IP to a county public health worker wherein the IP had said , “ That patient is an idiot , they ate a piece of their BBQ . It doesn ’ t surprise me at all that they ended up with an infection .”
Kroll explains the deposition process : “ At the deposition , it is your legal counsel , the other party ’ s legal counsel , and a court reporter / stenographer . Certainly , other people , particularly hospital or healthcare leadership , might be in the room , especially if they ’ ve been named in the case . The piece for me around raising my comfort level around depositions was building that relationship with our internal legal counsel . Really often , my experience is that if it ’ s going to get to the deposition stage , there ’ s often external counsel that is involved as well . And so , having that internal counsel who knows you , someone to whom you can say , ‘ This is probably a stupid question , but can you tell me X or Y , and you feel completely comfortable asking those questions .”
Kroll understand that the deposition process can be nerve-wracking for IPs and shares some advice .
“ I would go in and say to your healthcare organization ’ s lawyers , ‘ These are the No . 1 things that would concern me if I were asked this .’ Tell them what you would say as it relates to the company . IPs could say , ‘ I need you to know that this is what I ’ m going to say during a deposition ’ and then they might have some information on how to phrase that . Ultimately , your lawyer always wants you to tell the truth , but I have never had an experience where I have felt pressured in any way , except for being encouraged to tell the truth ,” Kroll says .
“ What was tough for me initially is , I ’ m a storyteller . It is how I get things done in life ,” she explains . “ But that is not what you want to be on the stand , and my struggle was answering just the question asked . I ’ m like , ‘ Well , I know what the underlying part of what they are asking me , so let me just volunteer it now . And so that took a lot of coaching from our lawyers to say , ‘ Catherine , answer the question asked and no more than that .’”
It is possible that the IP will be called upon to serve as a witness , and Kroll explained the various types of witnesses , ranging from a lay witness or an expert witness , to a corporate witness or even a character witness .
“ An IP can be any type of witness ,” Kroll confirms . “ More likely if litigation gets to the witness stage , you ’ re likely a corporate witness or an expert witness . If you were the one conducting the investigation and made the observations , then you ’ re in the lay witness category , with some expert witness sprinkled in .”
The role of an expert witness is to help the court understand complex information . Questions are limited to the scope of expert ’ s knowledge , and sometimes it can combine with lay witness-type testimony . As a corporate witness , the individual serves as a witness to everything the corporation knows . Deposition / trail questions are limited to a pre-defined scope of questions , usually related to policies and procedures or protocols , Kroll noted in her presentation .
Litigation is a journey towards seeking the truth , and the other times that IPs may be required to take the stand besides depositions are arbitration hearings and trials .
“ My experience is that especially in healthcare worker labor-related cases , it ’ s an arbitration , and that
16 • www . healthcarehygienemagazine . com • september 2024