Reprinted with permission. Original article at Ultimate Injury Law.
With a delay in diagnosis at a hospital, there is one part of the medical record that is almost always the most important: the NURSES’ FLOWSHEET. The nurses’ flow sheet contains hour-by-hour assessments of the patient’s condition. To establish a delay in treatment, you need to show the deterioration of the patient’s condition based upon the nurses’ flowsheet.
At the deposition of the nurse, go through each nursing assessment in the flowsheet and ask the nurse to point out any changes in the patient’s condition. You should point out when the nurse did not make any assessment or gaps in the assessments. Ask the nurse to explain how they conduct the head-to-toe assessments and who they notified about changes in the patient’s condition.
Let’s take a deposition that involved significant neurological changes in a patient follow a brain operation that resulted in severe brain damage. The changes in the patient’s condition included elevated intracranial pressure (pressure inside the brain that, if untreated, can cause brain damage), as assessed by an external ventricular drain (EVD):
Question: Did the intracranial pressure increase from 8 to 12 to 19 during your shift?
Answer: Yes.
Question: Is intracranial pressure of 19 abnormal?
Answer: Yes.
Question: Did the intracranial pressure more than double during your shift?
Answer: Yes.
Question: When this happens, should you notify the attending physician about the elevated intracranial pressure?
Answer: Yes.
Question: Can elevated intracranial pressure be a sign of lack of blood flow to the brain?
Answer: Yes.
Question: After you became aware of the elevated intracranial pressure at 12:04 a.m., did you make any further assessments of the intracranial pressure until the end of your shift at 7 a.m.?
Answer: No.
Question: Why not?
Answer: I don’t know.
It’s virtually impossible for the nurse to deny the facts set forth in the nurses’ flowsheet. Now, you’ve boxed in the witness and given them no chance to make excuses.
4 Steps for Preparing for Your Next Deposition
Winning your case at the deposition is always based upon PREPARATION. You can conduct a better deposition than even the most experienced malpractice lawyer through your preparation.
Follow these steps for every deposition:
Step #1: Verify the Completeness of the Medical Records
Always get a copy of the medical records from defendants’ counsel as soon as the deposition of the witness has been scheduled. You should always ask the defendants’ counsel to confirm in writing that they provided you with a complete set of the medical records.
If you have any doubt that the medical records are complete, you should serve a Notice to Admit asking the defendants’ attorney to confirm that the medical records are a complete and accurate copy of the original records. You should inform defendants’ counsel that you will seek a second deposition of the defendant if you have not been provided with a complete set of the medical records.
Ideally, defendants’ counsel will provide bates-stamped medical records for ease of referencing page numbers during the deposition. If defendants’ counsel does not bates-stamp the medical records, your paralegal can do this and then share the bates-stamped records with the defendants’ counsel before the deposition.
Step #2: Identify the Key Parts of the Medical Records
Have your paralegal highlight the page numbers for the nurses’ flowsheets and any progress notes prepared by the nurse. Your paralegal should create a timeline showing any changes in the patient’s condition based upon each entry in the flowsheet.
It is not enough for your paralegal to reference the page numbers where the nurse’s name appears in the medical records. Your paralegal should tell you exactly what parts of the medical records are most important, e.g., the nurses’ flowsheet and the nurse’s progress note, rather than meaningless entries that did not occur during the delay in treatment.
Your paralegal should give careful thought to the importance of the nurse’s entries in the medical records as they relate to the claims in the lawsuit.
“John, the nurses’ flowsheet is set forth between pages 630 and 676 and the entries made by Nurse Smith are set forth between pages 642 to 651. Nurse Smith also prepared a progress note on page 178. These are the most important parts of the medical records for her deposition.”
“Nurse Smith’s name appears in other parts of the medical records, but they relate to treatment after the critical timeframe between June 15th and June 16th. Those parts of the medical record have no relevance to the claims in this lawsuit.”
More often than not, more than half of the nurse’s entries in the medical records are irrelevant to the claims in the lawsuit. You should not waste time scouring through 3,000 pages of medical records that contain 50+ entries by the nurse/witness, when only a few of the entries are relevant to the claims in the lawsuit. That is a waste of your time.
Step #3: Use AI to Create a Deposition Outline
Upload parts of the medical records, memoranda of experts’ opinions and the plaintiff’s bill of particulars to AI and based upon your prompts, AI will create questions for the deposition. Tell your AI agent precisely what you want it to do:
“I am a plaintiff’s medical malpractice lawyer. I will be conducting a deposition of a critical care nurse in a case involving a delay in the treatment of elevated intracranial pressure that resulted in profound brain damage.”
“Based upon the medical records and memoranda of our experts’ opinions, create questions for the deposition of the nurse that focus on changes in the patient’s signs and symptoms between 7 p.m. on June 15, 2025 and 7 a.m. on June 16, 2025.”
“Create a timeline of the patient’s vital signs and neurological status during this timeframe and highlight in yellow any abnormal signs and symptoms, such as sluggish pupils, increases in intracranial pressure and the Glascow Coma Scale and changes in the patient’s responsiveness. Reference the page number in the medical records for each abnormal sign and symptom.”
You can pick the questions you like and ask AI to focus on the key issues for the witness at the deposition. AI will learn from you and improve with every subsequent deposition in the case (unlike you and I, AI doesn’t forget). AI will create an outline of questions for the deposition, which you can revise and fine-tune.
Step #4: Rehearse the Deposition with Your Expert
Never do a high-stakes medical malpractice deposition without speaking with your expert. You should ask your expert: “If you were handling this deposition, what are the most important questions you’d ask?”
Then, ask your expert to pose the questions to you and you should respond with evasive answers, e.g., “I can’t answer that question with a ‘Yes’ or ‘No’” or “That question doesn’t make sense. I can’t answer your question based upon the way that you phrased it.” Keep going until you’ve got questions that make the witness look silly by denying the obvious.
Question: When a patient’s intracranial pressure doubles over the course of 4 hours, should you notify the attending physician?
Answer: Not necessarily.
Question: Should you at least recheck the intracranial pressure to make sure it isn’t getting worse?
Answer: That’s up to the attending.
Huh? Come again. Don’t worry that the witness is not giving admissions. You are making them look silly by denying the obvious.
Making AI the “Second Chair” at Your Deposition
Your AI “Second Chair” agent can listen to the deposition in real-time and provide a transcript of the testimony simultaneously with the deposition. The AI agent points out where the witness’s testimony conflicts with the medical records (and provide a link to the cited medical record) and suggests recommended follow up questions to address the inconsistency.
Case in point: during a deposition of a critical care nurse, the AI “Second Chair” agent pointed out that the critical care nurse mentioned the patient’s elevated intracranial pressure, but she did not elaborate. The AI agent prompted me to ask more questions:
“Nurse Smith testified that she observed elevated intracranial pressure, but there were no follow up questions. I suggest that you go back and ask Nurse Smith to give the time of every intracranial pressure (ICP) reading, how the ICP increased over time, and whether this raised concerns about lack of blood flow to the brain.”
“You might be able to show the nurse’s negligence in failing to notify the attending physician about critical changes in the patient’s intracranial pressure. Do you want me to provide a series of questions?”
The AI “Second Chair” agent prompted me to ask follow up questions about the elevated intracranial pressure. This is akin to having an experienced medical malpractice lawyer looking over your shoulder and advising you in real-time about oversights made during the deposition.
Changing the Way You Do Depositions and Trials… Forever
The AI agent points out inconsistencies and unclear responses in the witness’s testimony. With the simultaneous transcription of the testimony, your medical expert can read the testimony as the deposition takes place and call you to suggest questions for the witness.
At the end of the deposition, you will receive an AI generated deposition summary, that summarizes the key parts of the testimony and recommends other witnesses that should be deposed. With every subsequent deposition, your AI agent will already know the relevant issues in the case and recommend questioning based upon the testimony of prior witnesses. This is crazy stuff.
But you’re just getting started. Imagine using AI during your next trial to quickly identify holes in a witness’s testimony and refer to the parts of their deposition or medical record that shows the inconsistency.
Don’t take my word for it. Try Second Chair AI agent one time (www.Second-Chair.ai) and you will see for yourself how this will change depositions forever.
