Ординатура / Офтальмология / Английские материалы / Risk Prevention in Ophthalmology_Kraushar_2008

It is important that physicians meet with their attorney prior to their deposition, at which time the attorney will go over general techniques for testifying at a deposition and will also discuss the specific issues involved in the case. The defense attorney should also discuss with the defendant physician the specific issues germane to the particular case prior to the deposition.

I have learned that it is often helpful that there be some role playing wherein the defense attorney questions the physician as if the defense attorney were the opposing attorney. Some physicians have found it helpful to have this role playing videotaped so that they can see how they appeared when answering difficult questions and thereby potentially improve their performance at the actual deposition. Whether or not videotape is used in the deposition preparation process, some role playing is usually very helpful because it is often easier to answer difficult questions for the second time at the actual deposition rather than for the first time at the deposition.

In some jurisdictions, there are rules that make preparation for the deposition particularly crucial. These are rules that limit the ability of the defense attorney to direct a defendant physician not to answer a question at a deposition. Accordingly, the preparation session is extremely important because the defense attorney has limited capability to direct a physician not to answer even improper questions. For example, without proper preparation, a physician may not know, if asked, whether to criticize the care of a codefendant physician.

Working with Codefendants

As a general proposition, it is usually preferable from the defense perspective to avoid “fingerpointing” among codefendants. Once fingerpointing begins, it typically accelerates, and the plaintiff almost invariably wins such cases.

There may be rare instances, however, when fingerpointing among defendant physicians is unavoidable. In these circumstances, it is important for the defense attorneys to try to work together to attempt to minimize the fingerpointing to the extent the factual scenario allows.

In certain jurisdictions, physicians cannot be forced to provide their “opinions” against their will. In this instance, a physician does not have to offer an opinion critical of another physician unless that opinion was one that was formed as a part of treatment of the patient. In other words, opinions formed in order to provide treatment may be considered factual, and therefore the physician may have to state his or her opinion if it is asked. However, if the physician is simply reflecting back, after the litigation has started, as to whether another physician’s conduct was appropriate, a physician may choose not to offer such an opinion.

It is extremely important that any opinions critical of another physician be discussed with defense counsel prior to providing the opinion at a deposition or trial. This will ensure that the defense attorney is aware of the opinion and can deal with the issue in the best way possible given the circumstances.

Questions Physicians Frequently Ask About Testifying

Our clients have frequently asked whether they can be forced to answer questions with merely “yes” or “no” at the time of deposition or trial. Many judges will give the witness the following options. The witness can answer either “yes” or “no,” or he may tell the attorney asking the question, “I cannot answer the question ‘yes’ or ‘no.’”

We typically advise our clients that if a simple “yes” or “no” does not fairly explain their position, they should explain and not limit their answer to just one word. If the opposing attorney insists on a “yes” or “no” answer and the judge allows this, the witness should state, when appropriate, that he is not able to fairly answer the question “yes” or “no.” In the event the physician is ultimately forced to answer with only a “yes” or “no,” he will have a chance to explain when the defense counsel gets the opportunity to ask questions following cross-examination.

Clients also often ask whether they should be their own expert witness. Again, this is something that must be decided on a case-by-case basis. Theoretically, if the physician is serving as his own expert, the scope of cross-examination is broader. However, in my experience, most judges allow a very broad scope of crossexamination of a defendant physician regardless of whether the physician is serving as his own expert. Accordingly, I often have the defendant physician serve in the role of an expert on certain issues, because I have found that the scope of crossexamination usually is not much different.

However, there may be times when it is extremely important to limit the scope of the defendant physician on a particular issue. Therefore, the physician should be sure to discuss this issue with his attorney because this is something that must be decided on a case-by-case and issue-by-issue basis.

General Differences Between Deposition and Trial

It is helpful to have an understanding of the differences between deposition testimony and trial testimony. In general, a deposition gives the opposing counsel the opportunity to learn what a witness may say at the time of trial. Opposing counsel is seeking to obtain information that will assist him in cross-examining the witness at trial. Accordingly, it is usually the role of the physician at his or her deposition to attempt not to educate opposing counsel more than is absolutely required. Certainly, if a specific question is asked, the physician must answer it completely. However, as previously discussed, physicians should generally not volunteer additional information beyond what is specifically asked. As with any general rule, however, there may be exceptional circumstances in which the defense attorney may want the physician to bring out certain points during the deposition even if the opposing attorney does not inquire about these points.

In contrast to the deposition, trial testimony is the physician’s opportunity to explain facts that are favorable and to expound upon his theory of the case. Accordingly, when your attorney questions you during direct testimony, you will be trying to educate the jury. Your answers will likely be much more detailed and easy

to understand when you are testifying at trial than when you were testifying at a deposition. This is not to suggest that any fact or theory should be unfairly covered up at a deposition even though inquired about in an effort to surprise the opposing attorney at trial. It simply means that at a deposition answers should generally be limited to exactly what is inquired about and nothing more.

A Judge or a Jury?

Many physicians jump to the conclusion that it would be better to have their case decided by a judge rather than by a jury. In reality, this is not always true. In any event, the defendant physician often has no option in this regard. In many jurisdictions, if the plaintiff requests a trial by a jury, which plaintiff’s attorneys almost invariably do, then the law provides that the trial will be decided by a jury rather than by a judge regardless of the defendant’s wishes.

In defending doctors in malpractice cases for over 30 years, I have encountered only four or five situations in which defendants have had the option of a trial by a judge rather than by a jury. Interestingly, in each instance, the insurance carriers for the physicians decided that they would not agree to allow the case to proceed to a trial by a judge rather than by a jury. The rationale for this decision was that the carrier’s experience with judges deciding medical malpractice cases had not been good. The carriers believed that judges tend to want to make everyone happy and to come up with a compromise verdict, whereas jurors tend to be more decisive and more willing to turn away a sympathetic plaintiff if the treatment was proper.

The greater decisiveness of the jury may be a function of the fact that six or more individuals are making the decision rather than just one individual, as in the case of a judge trial, and that none of the jurors knows any of the attorneys. In contrast, the judge often knows the attorney for the plaintiff and the attorney for the defendant and is frequently focused, as part of his daily routine, on settling cases for a compromise amount. As juries typically find in favor of the defendant in the great majority of cases when the treatment is proper, this probably accounts for the decision of the insurance companies to go with a jury in those rare cases when there has been an option. Obviously, insurance carriers may make a different decision based on the circumstances of any individual case. For example, if the particular venue is known for having poor jurors or if the injuries are particularly severe or the proposed judge is well respected.

In the event that a case involves poor treatment and the plaintiff has significant damages, it would likely be to the advantage of the defendant physician to have a judge determine his case rather than a jury. However, the only cases, in my experience, when the option of a judge trial has been presented to the defense have been those that were medically defensible and the plaintiff’s attorney felt that he could get the case resolved more quickly and efficiently, and with the possibility of a compromise verdict, by agreeing to proceed to trial with a judge. In one such case, the plaintiff’s attorney appeared to have had a longstanding, and apparently very friendly, relationship with the proposed judge. Of course, the option of having the case decided by this particular judge was declined.

The Roles of the Judge and the Jury

As noted, medical malpractice cases are almost invariably tried before a jury. In a jury trial, the judge will explain to the jury that they will be the sole judges of the facts. Jurors alone have the responsibility of deciding the factual issues in the case. The determination of the jury as to the facts must be based solely on the evidence admitted during the course of the trial. The evidence will consist, generally, of the testimony of witnesses who appear in court and testify as well as any depositions or answers to interrogatories that are read to the jury. Also, exhibits, which in a medical negligence case typically involve medical records, may also be admitted into evidence and go with the jury into the jury room.

When it comes to the facts, it is the recollection and evaluation of the evidence by the jury that controls. Indeed, the judge will instruct the jury that if the attorneys, or even the judge, say anything about the facts in the case that disagrees with the recollection of the evidence by the jury, it is the jurors’ recollection that controls. The jury is instructed that they must decide the case based on the instructions as to the law given to them by the judge and applied to the facts as found by the jury.

In contrast, the judge rules on the admission or rejection of evidence and passes upon questions of law that may arise. At the end of the case, the judge charges the jury as to the law that applies.

There is much debate in legal circles as to how much consideration the jury gives to the instructions of law given by the judge. Based on my observations, most jurors certainly try to listen carefully to the judge’s instructions regarding the law, but hearing the law read only one time may be confusing to even the most attentive juror. In some instances a judge will provide the jury with a written transcript of his charge on the law, or repeat the charge, to assist the jury in following the law.

I will not attempt to discuss herein everything that is covered in the charge. In general, however, the judge will define the standard of care to which a physician is held based on the applicable law of the state in which the case is being tried. The judge will also typically discuss the legal concepts relating to proximate causation and damages.

I generally provide my clients with either a written or an oral outline of the judge’s charge. I believe it helps the physician to be aware, in advance of his testimony, of the standard of care to which he or she is held as well as the concept of proximate causation.

Jury Selection

I will now turn to the various aspects of a trial and discuss some of the ways that physicians can assist in their own defense at trial. I will start with jury selection. I recommend that our physician clients be present during jury selection. In most cases, the jurors, not the judge, will ultimately decide the case. Accordingly, it is important that the physician provides the attorney any input that he may have about any particular juror.

Usually the questions that are asked by the judge or counsel eliminate most jurors who are obviously biased toward one party or the other. After the jurors are questioned, each attorney typically gets a number of opportunities to excuse jurors with or without cause. If there is any juror in the jury box with whom you are not comfortable, let your attorney know. Your attorney may or may not follow your recommendation, but at least your attorney will have your input before making the ultimate decision.

As your attorney uses up his or her available challenges of jurors, your attorney will probably frequently be studying the jurors who remain available for selection. In a recent case, I had used up five of my six available challenges. My physician client indicated he was somewhat concerned about one of the potential jurors in the jury box and suggested I might wish to use my last challenge to excuse him. I looked at the panel of jurors who remained available to replace this juror, which consisted of three more potential jurors, and then suggested that my client do likewise. After looking at the three remaining potential jurors, my client and I agreed that the chance that any of those who remained would be better was probably slim, so we did not exercise the final challenge.

Opening Statements

I have listened to opening statements that have lasted anywhere from ten minutes to three hours. Every case differs in terms of complexity, and, accordingly, there is often significant variation in the lengths of the opening statements. However, in my experience, I would estimate that opening statements in medical malpractice cases average between 20 and 40 minutes.

The opening statement is a summary of the facts and theories each attorney intends to prove. Typically, each attorney will identify the witnesses whom he intends to call during the case. The defense attorney will usually provide a summary of the defense theory, typically including comments indicating that the treatment complied with accepted standards of care as well as any defense theories on proximate causation.

Many legal commentators believe that the opening statement is more important than the summation. It is thought that the opening statement provides jurors with their first impression of the case, and, once an impression is formed, it is thought that it tends to become fixed and difficult to change. In addition, when summations are given, the jurors have already heard all of the evidence and hence are more likely to have already made up their minds once and for all. Therefore, the summations may not be as important in many cases as the opening statements. However, summations should never be taken lightly, and, particularly in close or very complicated cases, the summations may be extremely important to tie together key pieces of evidence and theories that may not be readily apparent to a lay jury.

The Plaintiff’s Case

In a medical malpractice case the attorney for the plaintiff usually presents his witnesses before the testimony of the defendant physician. However, in some cases, the defendant physician is called by the attorney for the plaintiff as the first witness. In my experience, this often helps the defendant, particularly if the physician has been well prepared. A well-prepared defendant can defuse many of the arguments of the plaintiff early in the case and cause the jury to have an early impression favorable to the defense. Therefore, unless the plaintiff scores significant points during his examination of the defendant physician, the strategy of calling the defendant first often may turn out to be better for the defense than for the plaintiff.

In many cases, the plaintiff’s attorney will not call the defendant during the plaintiff’s case but instead will read portions of the defendant physician’s deposition during the plaintiff’s case. The plaintiff’s attorney will typically “cherry pick” those portions of the defendant physician’s deposition that are thought to be favorable to the plaintiff’s case or that provide testimony that the plaintiff’s expert intends to rely on for his opinion. The fact that the defendant physician’s deposition is frequently read to the jury once again reinforces the importance of preparation by the physician prior to his or her deposition.

In typical medical negligence cases, the plaintiff’s attorney will be calling witnesses who may include the plaintiff, relevant family members, and the plaintiff’s medical and/or economic expert witnesses. It is important that the defendant physician read over the depositions of both the plaintiff and the plaintiff’s expert(s). The defendant should advise his attorney of any thoughts that might be useful for crossexamination of either the plaintiff or the plaintiff’s expert(s). Possible examples of helpful suggestions for cross-examination include factual inaccuracies, conflicts with the medical records, conflicts with the medical literature, or weaknesses in the expert’s curriculum vitae such as limited experience in performing the treatment in question or lack of board certification.

The defense attorney will often depose the plaintiff’s expert(s) prior to trial to elicit information that may be useful for cross-examination. Areas of inquiry may include the expert’s training and experience, any literature that the expert relies on or that contradicts the expert, whether the expert’s factual assumptions are accurate, and any weaknesses of logic in the expert’s theory of the case. In addition to taking a deposition of the plaintiff’s expert, there are services available that can provide information regarding testimony given by the plaintiff’s expert(s) in other cases. Transcripts of previous testimony may be obtained and reviewed by your attorney to determine whether there are any conflicting statements in the prior testimony that may be helpful to your case.

Defense attorneys often hire private detectives in appropriate cases to perform surveillance of the plaintiff. A decision whether to perform surveillance is often made based on the index of suspicion of the defense attorney that the plaintiff may be misrepresenting his injuries based on the plaintiff’s deposition testimony and on

comments by treating physicians that may suggest that the disability claimed in the lawsuit may be disproportionate to the findings on examination. Over the years, my firm has obtained some remarkable surveillance videos. For example, a plaintiff who was allegedly unable to walk without assistance was filmed climbing up and down ladders to work on the roof of his house. If the defendant physician suspects that the plaintiff is exaggerating his injuries, the physician should recommend to his attorney that surveillance be considered.

The Defendant’s Case

In a typical medical negligence case, after the plaintiff’s attorney has presented all his witnesses and exhibits, the plaintiff’s attorney rests his case. The defense attorney will then typically move to dismiss any aspect of the plaintiff’s case that was not sufficiently proven. The standard to have a case dismissed by the judge is extremely difficult to meet, and in most competently presented plaintiff’s cases, very little of the plaintiff’s case will be dismissed.

After motions presented at the end of the plaintiff’s case have been decided, the defense will begin presenting evidence. The defendant physician’s case typically involves the testimony of the defendant physician himself together with the testimony of any defense experts. In some cases, there may be factual disputes between the plaintiff and the defendant rather than merely different medical opinions based on the same facts, and in these cases there may be fact witnesses called by the defense to rebut the plaintiff’s factual evidence.

In most cases, the testimony of the defendant physician will be more important than that of any other witness, including experts, called by the defense. Jurors look upon the case as a dispute between the plaintiff and the defendant, and hence the jurors often consider the testimony of the parties to be the most important. Obviously, if the jurors like and believe one party more than the other, that party is highly likely to receive a favorable verdict.

Because the defendant physician’s testimony is so crucial, it is extremely important for the defendant to be well prepared. The defendant physician should read as much available information about the case as possible, including the depositions of the parties and experts. Most important, the physician should carefully study his own deposition. If there are any errors in the transcript, the physician should advise his attorney, preferably well in advance of trial.

Before the trial begins, the defendant physician should meet with his attorney and begin the trial preparation process. The physician should plan to attend as much of the trial as possible. The more the defendant physician sees of the plaintiff’s witnesses, the better prepared the defendant will be to rebut what these witnesses have told the jury.

Defendant physicians should naturally dress appropriately for trial. Generally, I recommend that health care professionals dress conservatively, for example, wearing a blue or gray suit without any ostentatious jewelry. In addition, I advise clients

against reacting to the testimony provided by plaintiff’s witnesses, for example, making gestures such as shaking the head or rolling the eyes. I suggest that the defendant physician always remain very professional while the plaintiff’s witnesses are testifying. I also remind the defendant that he or she will have ample opportunity to set forth his or her side of the story when the defendant’s turn to testify comes.

Defendant Physician’s Testimony at Trial

I recommend that the defendant physician speak to the jury as if he or she were explaining the medicine, and his or her thinking about the treatment, to a patient or to a friend. I have often suggested that the physician speak to the jury as if he or she were talking to a few friends in their living room, explaining why the treatment that was rendered was appropriate.

It is important that the defendant physician appear to be helpful. For example, he or she should explain any medical terms that might be difficult for a lay juror to understand. Naturally, this should never be done in a condescending manner but only with an attitude of being helpful. If there are any points that can be made clearer by using a diagram or an anatomic model, the defendant physician should attempt to do so. It is advisable to go over any proposed drawings or models with the defense attorney prior to presenting them to the jury.

When I am questioning my client during the trial, I typically stand in a location in the court room so that the witness is facing both me and the jury. This permits the defendant physician to easily include the jury in the discussion. In other words, the defendant physician will be able to look at me when responding to questions but also speak to the jury and include them in the discussion. I do not recommend that the physician speak only to the jury but rather that the physician speak to me and then frequently turn to the jurors to include them in the discussion.

It is essential that the defendant physician never be arrogant or condescending. Likewise, the physician should never lose his temper. A little righteous indignation may be appropriate if the opposing attorney is being difficult, but the physician should never lose his or her composure. Defendants who appear professional and reasonable usually win.

Many years ago I advised a physician that he should attempt to explain medical terms to the jury during his testimony. Unfortunately, he prefaced each explanation with the condescending statement, “You probably will never be able to understand this, but this part of the surgery involves.…” Naturally, he eliminated this preface to his explanations after I had a chance to speak with him during the first break, and he went on to be a good witness.

In some cases, it may be appropriate to express sympathy for the plaintiff. Physicians are often concerned whether an expression of sympathy will be misconstrued as an admission of negligence. If properly done, an expression of sympathy for the injuries of the plaintiff can actually be very helpful to the defense as long as it is made clear that this does not constitute an admission of negligence. For example, in

a case involving the loss of a child, a defendant physician recently indicated that he felt badly for his patient’s loss. His testimony went roughly as follows: “I feel very badly for Marge, as it is always very difficult to lose a child. However, we did everything in our power to help her child.”

A defendant physician should acknowledge the limits of his or her expertise. For example, if a defendant physician is a family doctor and is asked a highly technical surgical question, it may be appropriate to state as follows: “This is a surgical issue on which I would defer to my consulting surgeon.”

The defendant physician should try to avoid exaggerating or “sugar coating” his case. Weaknesses should generally be brought out and dealt with while the defense attorney is doing the questioning and before cross-examination. Naturally, it is not favorable when the opposing attorney is the one who exposes all of the weaknesses in the defendant’s case.

Deposition testimony may be used by the opposing counsel to impeach the defendant physician if there is any difference between what the doctor said in his deposition and what the doctor says on the witness stand. If possible, the defendant physician should try to clarify any inconsistencies between the deposition testimony and the trial testimony when confronted with the prior testimony at trial. However, there may be times when you definitely misspoke in your deposition, and, of necessity, you have to change your testimony at the trial. Any need to change your deposition testimony should be thoroughly discussed with your attorney long before trial to give him the best opportunity to deal with this issue.

Physicians should be willing to disagree with so-called authorities or commonly used texts if convinced that the literature is wrong. Hopefully, you or your expert witness can emphasize that the particular literature used by the plaintiff does not apply to the treatment in question or emphasize that there is other literature that supports your treatment choices.

Physicians should attempt to appear confident. Take each question one at a time and answer it as best as you can, trying not to concern yourself with how you are doing. In other words, by doing your best on each question it is likely that the overall impression that you will make will be as good as possible.

Do not hesitate to ask the cross-examining attorney to clarify any question. If it will leave the wrong impression, try not to answer questions simply “yes” or “no.” Likewise, if a question assumes improper facts, try to point out the error in the question’s assumptions when you answer.

In a recent case, the theory of the plaintiff was that there was a purported delay in diagnosis of a blood infection that led to the patient becoming septic and dying. The attorney for the plaintiff wanted to get the defendant on cross-examination to sound as if he agreed with the theory of the plaintiff, that is, that the patient died from sepsis, which actually was not true. The attorney for the plaintiff engaged in the following series of questions: “Certainly sepsis causes death, true doctor?” If the physician answered this question simply by saying “yes” it would have sounded as if he agreed that sepsis was the cause of the death in this particular case. Fortunately the physician provided a better answer than just “yes” by stating, “In some cases sepsis may cause death, but it definitely did not in this case.”