Rebuff those malpractice lawyers’ traps and tricks!
Courtroom rules doesn’t favor defendants, and plaintiff attorneys will paint you as incompetent and uncaring. Don’t despair! You can prepare for the attack and counter it.
You may be surprised to learn that you do have advantages over lawyers for plaintiffs:
- You know more medicine than they ever will, no matter how many malpractice cases they have tried.
- You were there when the actions under dispute took place. You can speak from direct experience about those actions, with authority, as a knowledgeable eyewitness.
- Despite how it may appear, you have the right to defend your actions and your statements vigorously.
Plaintiff lawyers routinely employ a standard repertoire of tricks and traps, which I have seen used time and again. My goals here are to describe them to you so that you can see them coming and to tell you how to defend yourself against them. You’ll then be in a position to counter these tricks by 1) giving them a name, 2) confronting the lawyer—in front of the judge and the jury—with what he or she is attempting to do, and 3) employing defensive tactics.
A note about language in this article: For simplicity, when I say “he” when referring to a physician or lawyer, I mean “he” or “she.” And I mean “plaintiff attorney” when I say just “lawyer” or “attorney,” unless I am referring explicitly to your (the defendant’s) representation.
First, three little words to set the stage
Always keep in mind that, for you to be found guilty of malpractice, the plaintiff attorney has to prove beyond a reasonable doubt that the actions you did, or did not, take violated what is known in the medicolegal arena as standard of care. Because this standard is what you are being judged against, it is vital that you understand—and, in turn, that the jury understands—exactly what the term means.
Standard of care is defined as care generally given by well-trained physicians in your own specialty under similar circumstances. Standard of care does not mean “ideal” care, as may be recommended in a medical textbook or other kinds of professional communication. The standard of care is, essentially, generally accepted practice: The level and degree of care most often used by your contemporary peers. You are guilty of malpractice only if the care that you gave fell below the care that would generally have been given to a patient by others, in your specialty, under the circumstances you faced.
Inside an attorney’s bulging bag of tricks
What tactics might an attorney use to harass and intimidate you?
He’ll bully you. Imagine this: A plaintiff lawyer is brought into a surgical suite for the first time. He is asked to participate in an operation but isn’t allowed to speak unless spoken to. He is allowed to answer direct questions only in a format dictated by the senior surgeon. That lawyer would not know what was going on, would be continuously on the defensive, and would feel totally in over his head—if he didn’t faint first!
What I just described is the equivalent of what happens to you in a courtroom. An attorney is allowed great leeway over the types of questions that he can ask and the manner in which they can be posed. He often attempts to intimidate you with harsh language, a raised voice, physical gestures, and sarcasm. He might ask questions with implied premises that aren’t true. His behavior might be confrontational. He might try to cut you off. And he might insist that your answers be solely “Yes” or “No.”
He’ll troll through your CV. Every educational activity in which you have participated, and every professional position you have ever held, is subject to inquiry. In addition to being asked if you have ever been sued or had disciplinary action taken against you, an attorney will review your education, step by step. He might imply that, if you were educated abroad or went to a less-than-well-known medical school, you are poorly trained or somehow not “of high quality.” He will likely ask you how many times you took the specialty board exam before you passed it. You might even be asked how high you finished in your medical school class, or if you were given your first choice of residency program in a match.
He’ll create artificial standards in the minds of jury members. You might be asked if you have published in your field or if you have an academic appointment—the assumption being that, if your answer is “No,” your opinion about issues being discussed at the trial are not as authoritative as (he will claim) those of the plaintiff’s expert witness, who may be well known in the specialty.
