During a malpractice trial, the defendant surgeon and his or her attorney will need to educate the jury about the complex medical issues that may underlie the case.
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Published 9/1/2014
John P. Lyden, MD

On Trial: What to Expect When You Are Sued

Nothing in my training had prepared me for being a defendant on trial for a malpractice action. I had to quickly learn about the legal process and how to handle myself in this very unique environment. I hope that sharing my experience will help others prepare and survive a medical liability lawsuit.

It begins when you receive a summons. Your immediate reaction may be a visceral anxiety, embarrassment, anger, consternation, and a desire to hide the knowledge that you’ve been sued from your colleagues. In fact, this is a time when you should be finding and organizing records and discussing them at length with your risk management personnel and orthopaedic peers. They will provide different approaches and help give you perspective.

Through your medical liability insurer, you will become acquainted with a malpractice defense attorney. Be sure to develop a relationship with him or her. This relationship with an experienced trial attorney will be vital in helping you understand the legal process that you must face.

Remember, your attorney does this on a regular basis; you do not. Listen carefully to what your attorney says and try to develop a rapport. Although your attorney knows the law, you are knowledgeable about medicine. It is very important that you find a way of gracefully teaching each other about the particulars of the case involved.

It is important that you explain the following issues to your attorney:

  • the patient’s medical condition
  • the problems that are associated with the procedure that you performed or the course of treatment you followed
  • the nature of the patient as best you can remember from your interactions with him or her
  • how these factors may or may not influence the reason the patient filed the lawsuit

Not all bad outcomes lead to litigation. The fact that this particular one did speaks to the nature of the patient’s expectation, the result, any disability, and the implications for the patient and immediate family members. Your defense attorney, hopefully, can guide you in this process by asking about your recollections, your thoughts about what happened, what was promised, what was expected, and what was understood.

Working together with your attorney, you will fashion a good defense. You will be asked to produce documents, which should be carefully collated from your records. You will be surprised at what gaps you do or do not have. Nonetheless, you should assemble as cogent a series of documents as possible for the attorney’s review.

The documents should be candidly discussed with your attorney in terms of their strengths and weaknesses. Your attorney can help point out what pitfalls to avoid and help you formulate a defense.

It is also good to have some input from other orthopaedic colleagues who can give you some perspective on the nature of the patient’s outcome versus the expected outcome for the procedure. You can turn to people close to you who have performed similar procedures and can advise you about the frequency and nature of the complication that your patient has.

The deposition
After the period of discovery and documentation, you will be asked to appear at a deposition. The deposition is an official recorded dialogue between the plaintiff’s attorney and you, with your defense attorney at your side. This is a serious event; schedule carefully, prepare for it, know the literature, know the patient, and know the problem. Do not make unsolicited extraneous comments. Do not speculate. Only answer the questions specifically posed to you and do not elaborate. If you don’t know how to answer a question, say so and allow your attorney time to help you.

The deposition is an opportunity to set your case and show the plaintiff’s attorney how well prepared and knowledgeable you are about the matter at hand. You are not going to win your case at a deposition, but you could help lose it. Always remember that everything you say is recorded and can be used against you at a subsequent trial.

Your defense attorney will review the deposition documents with you, point out weaknesses and strengths, and explain to you what points he or she thinks the plaintiff’s attorney is trying to make.

You should be very candid with your attorney in expressing your fears and concerns, what part of the case particularly worries you, and what you think your weaknesses are. You can be better prepared to answer questions of this nature if you are candid with your attorney and share the areas that you think could be problematic. You should devote considerable time to preparation for your deposition. You should avoid any distractions, interruptions, or postponements, if possible.

Bear in mind that during the trial itself, the plaintiff’s attorney will read your deposition statements line-by-line. They become testimony—not an informal discussion. Because what you say during the deposition is admissible in a court of law, every word can be potentially important. You should read your deposition transcript carefully and discuss it in detail with your lawyer.

Avoiding court
Few adverse events and poor outcomes actually go to trial. Your malpractice attorney may be able to settle out of court during pretrial maneuvering. An attorney who knows the case and medicine well enough may be able to convince the plaintiff of the futility of the claim and reach a reasonable settlement.

But occasionally, the plaintiff wants his or her day in court and will not accept a settlement.

In court
If your case does go to trial, it is extremely important for you to relate favorably with the jury. Your physical presence in the courtroom, your attentiveness to the matter at hand, your regular attendance during the proceedings, and your mode of speaking to the jury when your turn comes are vital.

The proceedings start with an introduction by the plaintiff’s attorney. This presentation is designed to be inflammatory and upsetting. You must see through it as clearly as you can. As the plaintiff makes his or her case, make mental notes of where you think it deviates from reality and can be challenged.

The plaintiff’s expert will likewise paint a very inflammatory picture of your work, but you must listen to the testimony very carefully. When the time comes, you will need to consult with your expert on points made by the plaintiff’s expert that can be refuted. This can be a delicate situation, depending on who the plaintiff’s expert is (the subsequent treating physician or a hired outside expert). Each is handled differently.

When you take the stand, remember that you are on display and are talking to a jury of your peers—not your physician colleagues. You are teaching, as well as defending your actions.

Never become hostile, even when the plaintiff’s attorney tries to rattle you. Speak slowly and directly to the people in the jury, without undue slang, technicalities, or conjecture. The members of the jury are there to make a fair determination. They have common sense; respect it. They appreciate the vagaries of medicine and the problems that are involved. Trust them, try to understand what kind of people they are, and portray yourself to them in as favorable a light as possible. They do not know medicine, and it is up to you—in simple layman’s terms—to speak to them as peers and educate them about what you did and why you did it.

It is important that you be in the courtroom throughout the trial. This ensures that you present yourself as being interested in the process. Do not just run in when you are testifying and run out as soon as you are done. Being present and testifying are your only chances to make an impression with the members of the jury. They do want to be fair, and it is up to you to make it as direct and understandable an experience as possible for them.

This process will take time away from your practice. But remember, it also takes the jury members away from their lives to fulfill their civic duty.

It will inconvenience you and it will upset you, but you have to be present. You have to make the jury understand that you had a clear discussion with the patient about what you were going to do, that you discussed reasonable complications with the patient, and that your record, which is really the only reliable source of what transpired, can be readily explained.

Juries can deal with complexity. It is up to you to engage them and to explain what has happened. They understand that bad outcomes do occur. You have to deal with them honestly and explain to them that you care and that you are there to help them participate and understand.

Bearing these things in mind, a jury trial for a medical malpractice case can become a learning experience for a physician. In general, the odds are in the physician’s favor. Most verdicts are for the defense, which should give you some consolation.

The final lesson
I found the overall process fair, but extremely tedious and slow. Multiple unnecessary delays occurred, such that the trial lasted for 1 month. The jury deliberated for 30 minutes and delivered a favorable verdict on my behalf. For me, the process was great. I believe jury duty for us all is a responsibility and the only way to ensure the validity of the system. It is inconvenient, time-consuming, and occasionally frustrating, but it is the basis of our legal system.

John P. Lyden, MD, is a professor of clinical orthopaedic surgery at Weill Medical College of Cornell University. He can be reached at lydenj@hss.edu

Editor’s note: Articles labeled Orthopaedic Risk Manager (ORM) are presented by the Medical Liability Committee under the direction of Robert R. Slater Jr, MD, ORM editor. Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional. Email your comments to feedback-orm@aaos.org or contact this issue’s contributors directly.