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Clinical Reviews


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.

November 2008 · Vol. 20, No. 11

The author reports that he is president of Shoulder Dystocia Litigation Consultants, working with defense lawyers, insurance company case managers, and hospital risk managers in shoulder dystocia-related injuries and litigation.

CASE

You are a defendant in a malpractice case, and your lawyer has just finished questioning you—the “direct” part of your testimony. She asked you straightforward questions and you answered fully and without interruption. You were able to explain, at length, your account of what happened during the events in question. This is the first time you’ve been sued; you’re nervous, but things have gone well so far, you feel.

Cross-examination by the plaintiff’s attorney comes next. He starts aggressively, questioning the quality of your training and experience. Have any disciplinary actions ever been taken against you by your hospital or the state licensing board? Did you have specialty fellowship training? He makes it seem that, if you didn’t, you have no business taking care of patients.

He drills in: Have you taken courses in the specific area at question in the case—as if whole courses are given routinely on the narrow topics that are often the subject of litigation, whether shoulder dystocia, placental abruption, damage to a ureter, or other bad outcomes.

He moves on to ask about details of the case but cuts you off when you try to flesh out your answers. He admonishes you: Listen to the question and answer “Yes” or “No”!

He begins to raise his voice.

The attorney attacks your notes in the medical record; he makes them seem incomplete and inadequate. He tells members of the jury that they can assume that you did not take a specific action, despite your claim to the contrary, because it’s not in the record: “If it wasn’t written down, it didn’t happen.”

His demeanor becomes more confrontational. The increasingly abusive questioning goes on and on, and your sense that things are going well has evaporated.

How, you ask yourself as the assault continues, did all this rancor and accusation come on so fast and so unexpectedly?

This scenario, or versions close to it, occurs all too often to physicians in courtrooms across the United States. Defendant physicians who are vilified and goaded feel angry, frustrated, and helpless. No wonder—the courtroom environment is alien to us. We trained for years to become competent, knowledgeable practitioners of our specialty; we work hard every day to provide the best possible care; and we diligently keep up with advances in ObGyn medicine by reading the literature and attending continuing medical education conferences. But in the courtroom, attorneys make a pointed attempt to paint us as incompetent and uncaring—even malicious.

Moreover, customary rules of argumentation don’t apply. We can’t answer questions fully or correct misstatements that are implicit in certain questions. Judges often limit what we can say and what the jury is allowed to hear. Not only is the medical care we gave questioned—we are subject to attempts to discredit us personally. We’re asked questions about the most private aspects of our life: “What’s your income?” “Why were you divorced?” “What is the financial arrangement between you and your partners?” “Are you seeing—have you ever seen—a psychiatrist?”

The playing field has been set at a tilt

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Lawyers made the rules of the legal system by which we are forced to defend ourselves when we are sued, and they surely made them for their benefit. Those rules provide lawyers with immunity from having to reveal their conversations and memos, but don’t provide you with protection for conversations or other communications you have had with patients, partners, friends, risk managers, and hospital administrators. Only conversations with your lawyer are “privileged.”

Perhaps your greatest disadvantage when you are sued is that, most likely, this is going to be your first time in a courtroom. You haven’t had the chance to become familiar with the venue—the courtroom—or the tactics of cross-examination used by plaintiff attorneys.

Combine an accusation of malpractice and the need to defend yourself in an alien environment with rules made by and favoring lawyers that are foreign to you and that you cannot control—what a daunting prospect! Plaintiff attorneys take advantage of the situation to prey on defendants.

There are ways to defend yourself!

Did you go into an operating room or a delivery room for the first time without preparation or training? No! Likewise, don’t go into a courtroom unprepared.

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.

Your biggest hurdle? You’ll have to climb the learning curve of the legal system rapidly to understand what will happen to you during a trial or a deposition and what you can do to fight back on the witness stand.

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.

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?”

By asking these questions, the lawyer will be implying to the jury that, in fact, you should have done these things and that, by not having done them, you provided inadequate and substandard care.

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.

Continued...
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