“Be prepared” is good advice
Legal matters and the process of medical negligence lawsuits aren’t covered in medical school. But knowing what to expect in the event of a lawsuit can be extremely valuable, enabling the physician to prepare for the suit itself, and decreasing the anxiety and emotional trauma that such an ordeal is likely to cause.
When Good Doctors Get Sued: A Practical Guide for Defendant Physicians Involved in Malpractice Lawsuits by Angela M. Dodge, PhD, and Steven F. Fitzer, JD, is an excellent primer for any physician—whether or not you’ve been sued. According to the authors, up to 65 percent of all physicians will be sued at some time, so knowing what to expect would certainly benefit us.
The authors have strong credentials. Angela Dodge is an expert trial consultant and social psychologist who has helped more than 1,000 witnesses prepare for their testimony in legal proceedings. Steven Fitzer, who assisted in writing the book, is an accomplished medical defense attorney practicing in Seattle. The book is written to physicians and focuses on our greatest concerns when being sued.
The first chapter addresses how the book can help the physician-defendant. The authors caution the reader to trust legal advisors and to use the book only as an ancillary guide.
The second chapter includes a description of the legal process in simple terms and definitions for key words and phrases. In the third chapter, “Why Good Doctors Get Sued,” the authors provide a nice summary of why medical lawsuits get filed in the first place. This information is calming and very salient to the physician who is in the middle of a liability case.
The next chapter discusses the emotional toll of a lawsuit, and helps prepare the reader for the depositions and the possible trial to come. By handling these emotionally charged subjects early, the authors show their understanding of the emotional wreckage that liability suits cause physicians and validate the feelings that these cases cause. Later, they describe how physicians should behave in the deposition and the courtroom—regardless of how we feel or are treated. Without establishing control of our emotions before entering into these legal proceedings, we risk sabotaging our defense.
The chapter titled “Giving a Good Deposition” is filled with practical advice. The authors explain what the deposition is for and what the goals of a defendant should be. They provide practical suggestions on how to handle these proceedings, discussing the rules of the deposition and describing what a physician should expect from the opposing counsel. This chapter changed my perceptions about depositions.
The authors emphasize the importance of engaging in active listening throughout the deposition and the trial. Although we as physicians believe that we are good listeners, we really don’t listen in a way that is helpful in the legal environment. Every word that is used in a deposition is important, and the authors devote an entire chapter to instructing physicians on how to listen to the questions. Again, I found this chapter very informative; it changed my understanding on how to interact with attorneys during depositions.
In discussing actual legal proceedings, the authors outline the differences between testifying in court and testifying during a deposition. Perhaps the most helpful part of this chapter is the authors’ method of diagnosing questions and formulating appropriate responses. If the defendant physician doesn’t read anything else prior to cross-examination, this chapter is a must!
The authors review lists of cross-examination questions that I initially found very intimidating. They explain how physicians should handle the question, and they suggest several appropriate responses. They also describe several legal “traps” that the plaintiff’s attorney may set and tips on effectively avoiding these pitfalls. This chapter is packed with practical advice on how to handle yourself during questioning.
In the courtroom
The description of the trial itself and the differences between the trial and the deposition also includes practical advice on how to behave during the trial. The authors answered many of my questions, such as “Do I look at the jury?” “How do I address the opposing counsel?” and “How do I answer this type of question?” They elaborate on the differences between the deposition and the trial and how the physician defendant’s tactics should change when entering the trial phase. Although I had expected the book to concentrate on the trial, I realized that the previous chapters all apply to the trial as well. Following the initial advice will result in a physician who is well prepared for the trial.
My only criticism is that the authors do not include a chapter describing what the physician-defendant should do after the trial, regardless of the verdict. I think this information would be very helpful. Although defending physicians win more than two-thirds of the medical liability cases that go to trial, most physicians are permanently affected as a result of the trial, regardless of the outcome.
The last chapter, “The Pocket Guide,” summarizes the advice and suggestions from the entire book. It provides a practical resource for physicians preparing for a deposition or court appearance who want to “brush up” on their skills before testifying.
I would strongly recommend When Good Doctors Get Sued to any physician who has been named in a medical negligence case—and to anyone who has yet to be sued. The authors provide a wealth of practical advice that will enable physicians to negotiate the legal system successfully.
Douglas W. Lundy, MD, is a member of the AAOS Medical Liability Committee and editor of the Orthopaedic Risk Manager articles in AAOS Now. He can be reached at firstname.lastname@example.org
The AAOS Medical Liability Committee welcomes your comments and input on Orthopaedic Risk Manager articles. E-mail them to email@example.com or contact this issue’s contributors directly.