Published 12/1/2011
David Teuscher, MD; Douglas W. Lundy, MD

You have been sued—Part 2

Tips for defendant doctors

Negligence cases are won and lost on expert witness testimony. It gives the jury the scientific and factual basis for the “standard of care” and provides them with the information needed to determine whether that standard has been violated by an act of omission (something should have been done but wasn’t) or an act of commission (something should not have been done but was). In medical negligence cases, the defendant doctor has a strategic option, but only if the defense team employs it. Serve as your own best expert witness and consultant to your attorney.

Deposition demeanor
Your deposition is the most important event in your defense, and the most important “oral board exam” you will take in your life. It is essential that you be prepared, humble, precise, and professional. Although you probably won’t win your case during the deposition, you could lose it.

Depositions are best scheduled when you are bright and alert. If you are a morning or afternoon person, schedule to your strength, but avoid evenings. Schedule enough time that it can be completed in one day, so the other side doesn’t get a second shot at you.

Arrive as you would to any oral board exam—early, rested, relaxed, and fed. Dress professionally and remember that you may be videotaped. Nonverbal actions will tell a lot about you, so mind your mannerisms. The following tips will serve you well: good posture, eye contact with the camera or examining attorney, quiet folded hands that are occasionally used for appropriate gestures or use of anatomic models or diagrams, and a clear, slow, and steady speaking voice.

You might want to bring small portions of energy snacks to refuel your brain. And you should mentally prepare for the presence of the patient and family that sued you.

Always act professionally. Let your attorney do any verbal sparring. You should only address opposing counsel in professional terms, such as Counselor, Mr., Mrs., Ms., Sir, Ma’am, or Madame.

Follow the advice of your counsel precisely. If you don’t, you may pay severely for it later on. During your deposition, do not enter subsequent records and literature that does not deal with your role in the case. Do not deviate from the unified defense that you prepared with your attorney. If you do, you risk becoming a plaintiff’s expert, and you will unilaterally disarm your advocate.

Answering questions
Do not volunteer information or put forth alternate defense theories. Answer only the question asked, remembering that ‘yes’ and ‘no’ are good answers to many questions and make the examining attorney work harder. Be wary of speculative or hypothetical questions; ask for clarification if necessary. Be very careful when asked to speculate; avoid responding to “possibilities.”

Early in the proceeding, you will probably be asked to agree to base your opinions on reasonable medical probability, and you should say yes. While you are under oath, your answers to questions should be based on “more likely” than “not likely.” Given the complexity of the case, qualified answers may often be best. Starting some of your answers with “Based upon reasonable medical probability,…” is an effective tactic that keeps the record straight.

Each question and answer should be able to stand alone, so that if it is read to the jury at trial, you can defend what you said. You have the right to truthfully say that you “do not know,” but there is no excuse for not knowing the case and the chart. Do not make things up or overstate the facts because you will have to face the consequences, and the penalties are severe.

Plaintiff lawyers may try to talk you out of your professional opinion and into their preferred opinion. They may try to put words in your mouth. They may use leading questions and establish inaccuracies if you let them. If they succeed, immediately correct the record. Do not allow yourself to be bullied under oath, but do not respond in a similar manner. Objecting to bad behavior by the plaintiff’s attorney is your counsel’s job.

During your deposition, answer questions at your own pace. Listen, breathe, think, and then answer. Consider asking for a break if you need one. Correct misstatements by the plaintiff’s attorney, and don’t accept them as truthful. If a question includes a false premise or inaccuracy, correct it before answering. Keep your recorded testimony honest and factual. Avoid the use of the words “always” and “never.”

After the actual deposition, read the transcript and watch the video. Plan to attend future depositions of the plaintiffs or other experts, even though doing so might be painful. The best way to ensure success is to prepare and to educate your attorney. Remember that you are an expert and can be a tremendous resource to your counsel in your own defense.

The trial
In terms of personal behavior, follow the same rules for the trial. Trials, however, take place in real time as theatrical events with a live audience, may last for weeks, and are interrupted regularly with settlement negotiations. Be prepared for a marathon; clear your calendar, focus on the trial, and get plenty of rest.

If you show the jury that you care, they will care about what you know. Your image should be of an empathetic, thoughtful, thorough, and highly skilled orthopaedic surgeon who helps people improve their quality of life. When you take the stand, remember that you are an educator first. If you are arrogant or unintelligible, you will not be effective in educating the jurors and you won’t be the expert who will win their trust.

Eye contact with the judge and jury is critical. When you are explaining complex issues and using anatomic models and pictures, speak to the jury as you would with a patient before surgery or in diagnosing a complex condition that may not have good answers. Show them the complexity of thought that you employ every day, use terms they can understand, and put your cultural competency skills to use.

As the defendant, you will spend most of your time in court watching the trial. You should appear as interested in it as you’d expect the jury to be. Do not act bored or insulted; do not take a nap or answer emails. Control your reactions to any provocative statements or acts by opposing counsel or others.

You can make the best use of your time by maintaining eye contact with the person speaking and taking an occasional note to share with your attorney. Although it is fine to look at the entire jury, try not to focus on a particular juror. When you don’t know where to look, look at the judge. Judges are accustomed to being stared at and expect it. Remember to show your respect by standing every time that the judge and the jury enter and depart the courtroom.

Medical negligence lawsuits are an unfortunate part of our professional lives. We hope that these suggestions will be useful if you or a colleague are ever involved in such a case. Never give up on the high calling that brought you to medicine, and never give in to an unfounded accusation.

Douglas W. Lundy, MD, is chair of the AAOS Medical Liability Committee. He can be reached at LundyDW@resurgens.com

David Teuscher, MD, is chair of the AAOS Board of Councilors. He can be reached at sportdoctor@gt.rr.com

Editor’s note: This is the second of a two-part series that deals with being sued and effective strategies to serving as your own expert witness when sued for professional negligence. Part one appeared in the October 2011 issue of AAOS Now and can be accessed online at www.aaos.org