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.
How should you respond to interrogation?
Although you face disadvantages as a defendant physician in a courtroom, there are ways to fight back—to stick up for yourself and respond to the techniques that attorneys perpetrate. You aren’t as defenseless as it might appear!
Never allow an attorney to bully you in the courtroom or at a deposition. If the attorney begins to use such behavior, call it by its name and demand that it be stopped. Your lawyer will likely have raised an objection before you do; if she does not, protest such inappropriate behavior yourself. Never allow an attorney who is questioning you to raise his voice or speak to you sarcastically or rudely.
You don’t necessarily have to play by the rules for answering questions, despite any admonition by a plaintiff lawyer that you do so. Unless you are advised otherwise by the judge or by your lawyer, answer questions the way you want to, as long as your answer is a reply to the question that was asked. You are never obliged to answer a question with just “Yes” or “No.” If an attorney tries to impose such a limitation on you, declare that you cannot answer the question under those terms. If your answers are being cut off, don’t hesitate to tell the jury that you are not being allowed to tell the whole story.
If questions posed to you contain false premises, point that out. For example, you might be asked, “Given the obvious fetal distress that was present, why did you apply forceps?” If there was no fetal distress, or if that is one of the issues in dispute, you can respond that the question contains incorrect information or an unwarranted assumption, and therefore cannot be answered as asked.
Prepare to be asked about your background and training. Have your lawyer ask you preemptively, during her questioning, about anything in your professional life that might appear the least bit negative. This allows you to explain the matter fully without being cut off by the plaintiff attorney. Have your lawyer ask questions that show how your background and training compare with those of other physicians in your hospital and community. If you have been sued in the past, have your lawyer ask you about how many times an ObGyn is sued, on average, in her career (“three” is the answer), and use this fact to show the jury that being sued is not an anomaly but the rule in ObGyn practice.
Never answer a question about something you wrote in the past or about prior testimony without demanding to read it yourself, on the stand, in context. (The same is true for quotations from the medical literature read to you by the plaintiff attorney: You have a right to know the source and date of publication of quoted material, and you should insist on being able to read the quotation for yourself so that you can understand it in context.)
If asked from what text or article you learned a specific piece of information, point out the absurdity of being asked to remember such specifics from among the tens of thousands of things you have learned and read over your training and career.
When asked about your notes in the medical record and why you did or did not write a particular item, point out that the medical record is not a document that is intended to be used to prosecute or defend medical cases years down the road but rather is meant to convey important clinical information among health-care providers. Tell the jury what sorts of notes are routinely written and how much information is generally put into a note. If the notes you wrote are appropriate, even if brief, be sure and explain to the jury that what you did is, in fact, the standard of care—not an idealized conception taken from a textbook or an expert’s talk as to how notes should be written. Don’t agree with a lawyer’s contention that “if it isn’t written down, it didn’t happen.” That may be a lawyer’s rule; it is not a medical rule. Do not let the jury go into the jury room thinking that it is.
Know the specifics of your case. It is true that, as a defendant witness, several factors are out of your control. But don’t forget what you do have under your control: Knowledge of obstetrics and gynecology and experience in the field. You know the medical issues involved in the litigation better than anyone else in the courtroom.
