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.
Still, do your homework. Make sure that you know the specifics of your case, inside and out. Study the medical record of the case carefully and read all the depositions your lawyer provides for you. Know what the relevant ACOG Bulletin, major texts (such as Williams Obstetrics), and the literature say about the issues that are involved. Know who the experts are in this area of care and be prepared to quote pertinent articles that they have written. Work to never let yourself be surprised by the facts of the case or the medical information presented by the plaintiff’s side. Treat your testimony as a very important final examination. Do that, and you will be in an excellent position to successfully answer questions and refute incorrect statements.
Preempt questions about informed consent. Ask your lawyer to have you explain, during the direct portion of your testimony, about informed consent conversations, how they are usually held, and how they are documented. Tell the jury the difference between a calm consent discussion in the office before a routine medical procedure and a consent discussion in an urgent situation. By the way: The general rule about informed consent is that a physician is obliged to discuss with a patient any significant risk greater than 1%. This is a documented standard.1
Don’t let incorrect claims go unchallenged. Consider this scenario: A plaintiff attorney states that, given the circumstances of a certain clinical situation, you should have taken a particular action. This is often the case in fetal asphyxia cases, when experts for the plaintiff often testify that they can tell, from looking at the fetal heart rate monitoring strip, the exact moment at which a fetus was in trouble and should have been delivered by C-section. Consider having your lawyer issue an in-court challenge to an expert witness who makes such a claim to perform a blind reading of five fetal monitor strips for which the outcomes are known and to see if his predictions are correct. A plaintiff attorney will never take you up on such a challenge—and that refusal will be noted and appreciated by the jury.
This isn’t your backyard but you can play here
Amid what is often hostile treatment, it can be difficult to remember who you are: A highly trained, hard-working physician who has given most of your professional life to providing superb care. A plaintiff attorney is out to make you appear incompetent, and his motive is clear: He’ll earn one-quarter to one-third of any award that he wins for his client.
You are obviously convinced of the correctness of what you did in the case—or you wouldn’t have gone to court to defend yourself. You know the medicine better than the plaintiff lawyer does and, having been the caregiver, you can discuss all aspects of the case with much greater authority than he ever can. His only advantage? You’re in his backyard and he controls many of the rules.
But if you’re meticulously prepared, if you work with your lawyer and follow her advice, and if you are aware of the plaintiff attorneys’ tricks and techniques that I’ve described, you can neutralize much of the disadvantage you’re under in the legal system and defend your case on a greatly leveled playing field.
