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The Ideal Physician Defendant By: Madeleine Weldon-Linne There are several common threads running through a
successful defense. The strength of the cloth depends largely on these threads.
The strength of the threads depends, in part, on the efforts of the defendant physician.
There is much the defendant physician can do to improve the defense. Conversely, the
defendant physician can hinder the defense effort and chances of success by the conduct
and attitude during discovery and trial. Many of my comments and examples pertain to conduct at
trial. However, the discovery process, those years leading up to the trial, are the fabric
of the defense. The discovery period includes: (1) written discovery which is orchestrated
by the lawyers with the input of the defendant; and, (2) the discovery depositions in
which oral testimony is given by the defendant in answer to questions posed by the
opposing attorney. The purpose of the deposition is both to obtain information
to support the theory of the plaintiff and to extract statements from the defendant
physician that may serve to impeach or discredit him when he is testifying at trial. The
discovery deposition of the defendant physician is an extremely important part of the
discovery process. The principles that apply to the physician's testimony at trial apply
equally well to the physician's testimony at deposition. Being a "good" defendant at trial and at
deposition does not guarantee a "not guilty" verdict or dismissal from the
lawsuit, but the right attitude, demeanor, and conduct can maximize the opportunity for
that result to occur. Certainly, the facts of the case are most important, but
even with ideal facts and a defensible lawsuit, the defendant physician must be aware of
discovery, trial etiquette and the strategy to maximize the chance of success. The
prepared defendant can rescue bad facts as assuredly as the unprepared or uncooperative
defendant will put at risk the defensible case. This article traces the threads of the physician's
successful defense as it weaves throughout the cloth of discovery ultimately to trial and
the final result. LISTEN TO YOUR ATTORNEY First and most importantly, listen to your trial attorney.
The lawsuit is unfamiliar territory to you. The trial attorney should not attempt to tell
you how to practice medicine. Likewise, do not assume to tell the attorney how to defend
your lawsuit. The courtroom is the trial attorney's arena. Respect the turf. If you disagree with a strategy and wonder why things are
done a certain way, by all means ask your attorney. You deserve an explanation. Your
thoughts and ideas will be welcome and probably used in the defense. Doing it your way
without consultation may have repercussions for your defense that you never considered. You and your lawyer are a team. At trial, it's best not to
do anything that would imply otherwise to the jury; at least act like you and your lawyer
are working together. Do not write constant notes to your lawyer or talk incessantly to
him privately within the jury's view. However, do write occasional comments and talk at
breaks. If the jury perceives you are at odds with or arguing with your lawyer, the jury
will think that you cannot get along with anyone. After all, your lawyer knows all about
this case, your treatment of the patient, and you. Your brilliance, your eccentricity, your experience, or your
leadership in medical circles do not make you "without peer". The jury, none of
them physicians, is still your peers for the duration of the trial. They will apply a
standard of care to your conduct. Know that standard and be able to articulate how you met
that standard. THE JURY WATCHES The jury does not always listen to the testimony, but
it watches you. For this reason, it's important to remain interested in the trial. If you
are disinterested in the testimony, the jury will see you as someone who can become bored
with a patient. The jury may not understand the testimony or even find it interesting, but
they expect you to be interested. After all, this is your lawsuit. ACT HUMAN The jury sees you as a doctor first and a defendant second,
so be human and be vulnerable. The stone wall is not the most attractive bedside manner.
Keeping this in mind, position your body so that you are talking to the jury, but
maintain communication with the examining attorney. Remember to remain calm and be aware of your vocal range and
style. It's good to be heard and be clear, but don't be repetitive. Be as patient and
think as clearly as you can. Being pleasant, candid, and confident without appearing
pompous can help. Try not to second-guess yourself. Above all, remember that an angry and combative defendant
does not inspire confidence in the jury. DRESS THE PART I once had to tell a male defendant physician to remove an
earring before trial. It was embarrassing for both of us, but I am certain it was the
right thing to do. On another occasion, I had to tell a woman that bare legs
and sandals were inappropriate attire for the courtroom. The jury should be able to take
you seriously. Clothing is an external indicator of your attitude. It is said that true civility and culture are evidenced only
under stress. The thin veneer of civility is worn through at battle. Remain courteous, but
curt to your opponent. Always be courteous to your attorney. At a recent trial of a
defendant physician, a polled juror told me that even though the defendant doctor had been
inconsistent in his responses on cross-examination, she felt that the inconsistency was
due to the fact that he had been badgered by the plaintiff’s attorney on
cross-examination. The defendant physician noted his inconsistency in his response and
simply told the examiner, "Counselor, I have been on the stand for six hours, if I
was inconsistent, it is because I am tired and badgered. This is what I meant to
say...." That case resulted in a not guilty verdict. At another trial, a juror thought that the plaintiff's
attorney was unpleasant to both me and to my client. In particular, that juror commented
that exhibits were practically thrown at the defendant physician for his comment on
cross-examination. I learned that the jury pays attention to both the lawyer and the
defendant's every move. TWO-WAY STREET Throughout discovery and trial, find and forward all
pertinent medical literature to your attorney. Do this as soon as possible in discovery.
Explain the medicine to your attorney. Keep the attorney current as the medicine changes.
Answer questions. Help your attorney focus on the medical issues. Do not let the attorney
get off on medical tangents. Be educable on legal issues and proper defense behavior. Ask
for an outline or an overview of the discovery process. Be realistic. Defense strategies
change. The motion for summary judgment that you discussed in the first months of the
defense may not be possible after the deposition of the plaintiff's expert. Be flexible by
talking about the defense theme with your attorney to help shape your defense. Help your attorney select visual aids. Visual aids are
important to keep the jury interested and to illustrate key points. However, do not try to
illustrate every aspect of the medicine. visual aids should be highlights. Avoid medical jargon. When is an esophagus the tube that
leads from the mouth to the stomach? It is at trial. Always use simple words and body
language to explain the medicine to the jury. PERSONAL EXPERIENCE The best physician defendant I ever represented had several
articulable characteristics. He was always courteous. I concluded that he must be
respectful of his patients. He provided me with timely comments on depositions of
witnesses, treating physicians, experts and records. I concluded he was insightful. He faithfully sent me literature updates or news articles
relating to the issues of the case. I thought he was continually self-educated and
up-to-date. He took it upon himself to organize the voluminous records
and provide me with a chronology of the plaintiff’s treatment. I concluded he was a
careful practitioner. Importantly, he was always available to me. He was
interested in the case. I concluded he must be available to his patients. He was passionate about the case and was invaluable to the
defense. I wish that I could say that his behavior awarded him with a "not
guilty." Unfortunately, I do not know the outcome yet. The case is seven years old
and does not yet have a trial date. I am certain, regardless of the outcome, that this
physician did and continues to do everything to maximize his chance of a favorable
outcome. I also believe that the jury will see the traits I have seen throughout discovery
at trial and draw similar conclusions about this physician. The worst physician defendant I ever represented also had
several traits worth mentioning. He was arrogant and unwilling to explain the medical
issues to me. I am not a physician, but I am familiar with medicine. I was a pre-med
biology major at Northwestern University, have been married to a physician for 14 years,
and have been a medical liability defense attorney for nine years. Some things sink in. My
point is that if I do not understand the medicine, the jury will most certainly not
either. Importantly, the issue of informed consent will haunt the jury. How could the
patient have understood the treatment if the doctor cannot explain it? This particular defendant had his own agenda throughout
discovery and trial. He wanted to explain to me only what he wanted to explain, even if it
was irrelevant or served simply to build up his ego or credentials. He insisted throughout
the many years of discovery that character witnesses would be appropriate. He wanted to
present a parade of patients that he had helped with similar problems to the plaintiff. I
told him other patients do not pertain to these particular facts and their testimony would
not be allowed at trial. In retrospect, I am convinced that he needed to be assured that
he was a "good doctor" and he wanted to prove it to me. However, it did not help
his defense. Perhaps most crippling to the defense was his unavailability
to me. He claimed to be under a great deal of stress and was only available on very
restrictive terms and with a very restrictive attitude. This same physician showed an overt lack of confidence in
his attorney. His disapproval was certainly apparent to the plaintiff's attorney and,
although I am less certain, was probably equally apparent to the jury. These characteristics sabotaged his defense. I am happy,
however, that in spite of the defendant, a "not guilty" verdict was returned.
The defendant's actions, however, greatly complicated my job as a defense attorney and
jeopardized the outcome of the trial. ONE LAST POINT The defendant physician is a powerful tool in shaping the
defense. The shape of the defense depends in large part on the attitude and demeanor of
the defendant physician. As a partner with the lawyer, the defendant physician can
maximize the chance of success in the medical malpractice lawsuit. |