Rebuff those malpractice lawyers’ traps and tricks!

He’ll take statements out of context. Articles that you published (even if years ago), previous depositions or trial testimony you have given, and even PowerPoint presentations you made to nurses on your labor and delivery unit may be probed and quoted. Usually, the attorney presents only brief snippets of these works, which are likely to be read to the jury out of context.

He’ll ask for specific references. Often, when an attorney asks about facts that you’ve mentioned or opinions you hold regarding issues that bear on the case in your trial, he will attempt to embarrass you by asking you to name the specific text, article, or author from which you obtained that information. Here’s an example: You know that the threshold for macrosomia in a shoulder dystocia case is 4,500 g, and that random late decelerations in a fetal monitor strip marked by otherwise excellent variability do not demand immediate C-section—but you may not be able to cite, off the top of your head, exactly in which textbook or journal article you read this or the information can be found. You might also be asked what an ACOG Bulletin or your hospital’s policy book says about a certain subject or aspect of care.

He’ll drag in the medical record and informed consent. An attorney might try to convince a jury that “if it isn’t written down, it didn’t happen.” He might cite a lack of an extensive written description of what occurred during the events in question as evidence of sloppy charting or poor care. He might claim that lack of a detailed note replicating a conversation that took place during the consent process displays a lack of concern for the patient’s right to know.

He’ll imply the existence of a standard of care. Lawyers often try to convince a jury that a defendant physician committed malpractice by claiming that she should have taken certain actions, when, in fact, these actions would have been unnecessary or inappropriate under the circumstances. Examples: Asking whether clinical pelvimetry was documented in the chart of a multiparous woman who came in actively laboring, or asking if fundal height was measured in the office during a patient’s last three prenatal visits.

Here are two other examples:

• In a case involving vacuum extraction delivery: “Doctor, have you ever read the vacuum device’s product safety manual?”
  
• When a plaintiff has testified that she told you at her first prenatal visit that her previous pregnancies were uncomplicated: “Did you call for, or read, the record from any of her previous pregnancies?”
  

He’ll create a false impression. A common attorney’s tactic is to pose questions to you that imply that certain things are true, when they are not. A common example of this tactic occurs in shoulder dystocia cases, when putative risk factors are addressed.

Consensus in the shoulder dystocia literature is that there are only three or four statistically consistent risk factors for this condition: shoulder dystocia in a prior delivery, macrosomia, gestational diabetes, and (possibly) mid-vacuum or forceps delivery. Often, however, attorneys imply to the jury that many other risk factors exist—and that your patient had any number of them and that you should have been aware of them.

You might be asked if your patient underwent oxytocin induction, had a long first stage of labor, had an epidural anesthetic placed, or was post-dates—none of which have a proven association with shoulder dystocia. You’ll be given little leeway, in answering questions posed to you, to try to refute the lawyer’s false assumptions. The impression may thus be left by this concatenation of nonproven factors that your patient was at high risk of shoulder dystocia, that this was foreseeable, and that you were negligent in not having performed a C-section to prevent it.

Likewise, lawyers often deliberately misuse statistics—such as when they discuss sonographic variability in the estimation of fetal weight: “Don’t you acknowledge, Doctor, that ultrasound estimates of fetal weight can vary by 15% of the actual weight? So why didn’t you take into account that the 4,300 g estimate you were given could, in fact, have been as high as 4,700 g?” Given the rules that restrict how you can answer, you are rarely allowed to explain to a jury that, first, the 15% variability applies only to a baby whose weight is more than one standard deviation from average and, second, the weight-estimate variability can be on the low side as well as on the high side.