Witness: A Primer for Malpractice Defense

Like most active clinical surgeons, I've been sued a few times for malpractice over the course of a long career in academia and private practice. In addition, I've served as an expert witness for the defense in about 20 malpractice actions that did not involve me or my group.

For most physicians, malpractice actions are tremendously upsetting and emotionally draining, and I can still recall my own shock, anger, and frustration the first time I was sued 25 years ago. The intensity of my immature emotional reaction so compromised my thinking while in court that I was lucky to escape with a defense verdict. Fortunately, I learned a few things from the experience, and it proved to be the beginning of a long process of CLE - continuing legal education. I've learned the importance of always being attentive to what is happening in all phases of any malpractice action, in order to learn how and why lawyers make certain statements, and ask certain questions. My teachers have been attorneys for both the plaintiff and the defense. Most taught me unintentionally; some because they were poor lawyers, some because they were competent, and a precious few because they were very good at their job. One was truly an outstanding malpractice defense attorney, and I was fortunate that he consciously taught me many of the essentials. The result has been a gratifying absence of verdicts for the plaintiff in trials I've been involved in, with the only payments coming from rare pretrial settlements when the defendant wished to avoid the nervous strain and unpredictability of a trial. Of course that favorable experience also is due to my willingness to tell defense attorneys that in certain cases there has been real malpractice, and I cannot defend them.

In the hope that my experience will be useful to defendants and to expert witnesses, here are some of the things I've learned:

1. Intense emotions compromise every aspect of an effective defense, whether trying to recall events accurately, to plan a defense strategy, or to counter the opposing attorney's line of questioning. Expert witnesses have the advantage of being spared these intense emotions, but a defendant - in addition to feeling remorse and consequent low self-esteem due to the bad outcome - usually harbors conscious anger and resentment ("How could they sue me when I did my best?"). Of course we know that we should try to control such strong emotions, but it isn't easy, especially because they may lie dormant until we are caught unawares by a provocative question. To maintain control, we need a substitute attitude that can take over, and it must be one that adds to the effectiveness of the defense. My solution is to view every encounter with the plaintiff's attorney as an intellectually stimulating chess match, in which one must look several moves ahead to see where the line of questioning is going. If you do so, you can avoid the minefields, and may even set your own traps for the attorney.

2. If you are able to perceive the encounter somewhat dispassionately as a battle of wits and tactics, it is reassuring to recognize that you have important advantages:

• No one knows more about the case than you do. Your job is to tell the truth, and to explain it. (If the truth is that you did something wrong, forget the rest of this article and settle the case.) Hardly any jurors will have the knowledge of the human body that they will need to understand the central medical issues in a malpractice case. Always remember that your task is to explain as much as it is to defend. Since you are a physician, be a teacher. Plan in advance to fill this role; prepare illustrative diagrams, anatomical drawings, models, or even specimens, just to explain the relevant anatomy and physiology. The jury is desperate for the information they need to understand the case, and if you teach it to them, they will begin to view you as a teacher, rather than as the outrageous incompetent portrayed by the plaintiff's attorney. My favorite defense attorney always said: "The first witness who gets the jury to understand what the case is all about, is the one they will believe." Never miss an opportunity to explain something to the jury.
• Since your role is that of forthright teacher, turn to the jury whenever giving any prolonged explanatory answer. Don't "joust" with the attorney by looking at him or her. Instead, consider each question an opportunity to clarify some aspect of the case, which you then proceed to explain to the jury. Look them in the eye, especially those you sense are the least sympathetic to you, and address the jurors directly as people, not as a tribunal. (Obviously this posture isn't relevant when you're giving a deposition, but then it's even more important to be careful how you answer, since your statements may be read back to you in court out of context.)
• On the other hand, don't confuse "explaining" with "volunteering" information. It is one thing to amplify the anatomy, physiology, pharmacology, etc. that are essential for understanding a case; it is another thing entirely to volunteer information about why you did something etc., when you don't know how that information might be used. Some questions must be answered briefly, and only with as much information as is necessary to be "responsive." Make the attorney ask another question that reveals where he is going. If the attorney cannot ask the question properly, you won't have to answer it. Don't try to be helpful by rephrasing the question and answering it - it's remarkable how often doctors do this when testifying, and it's almost always unwise.
• There is no attorney who knows more about medicine and cardiothoracic surgery than you do. Regardless of how many intimidating questions the attorney asks, don't ever forget this comforting thought: you are the doctor. But to maintain this advantage, you must always be fully prepared and completely knowledgeable about the case, even if it occurred many years earlier.
• Because of previous point, and because only you were there, the jury will be inclined to believe your version of the facts, but not if you are uncertain, inconsistent, or untruthful. Nonetheless, it is not always good to attempt to display total recall. Memories can play tricks, and it is often wise, appropriate, and correct to answer "I don't recall. It was a long time ago, and my answer must be based on what I wrote in the chart at the time, not on my vague recollections."

3. Of course the plaintiff will use hired guns to offer an opposing view; it's the defense attorney's job to discredit them, and you must help by listening carefully and, if possible, dispassionately during their testimony, and by conferring with your attorney before the cross examination. Your attorney is also not a physician, and will benefit from your help in understanding the medical inaccuracies and inconsistencies in the testimony of the plaintiff's experts.

In the same vein, always review in detail with your attorney the depositions and written reports from opposing experts, not with the usual emotional reaction of outrage at the incredible distortions they have made, but to plan your strategy for coolly discrediting those distortions. When your attorney examines you in court, you want to be thrown some fat pitches that you can hit out of the park; i.e. questions that allow you to explain the central issues to the jury, not merely to defend and justify your actions. Help your attorney to frame those questions.

4. Be aware of certain standard strategies used by attorneys:

The "literature gambit"

Q. "Doctor, do you consider the New England Journal of Medicine (or Kirklin and Barrat-Boyes' Textbook, or Edmunds Textbook, or the Annals of Thoracic Surgery, etc…) to be an authoritative source of information about current medical practice… or about cardiothoracic surgery?"

(Some surgeons still mistakenly believe they must answer "Yes," even though they perceive that the questioner probably has some reprint or excerpt from one of those sources that contradicts their management of the patient. This type of question signals that the chess match is well under way. It is vital that you do not acknowledge any type of medical literature as "authoritative," because if you do, you will then have to debate the attorney on the merits of each of a series of citations from the literature. The attorney has opened with the "literature gambit," and it is usually best to avoid all the individual, potentially damaging debates by preventing any discussion of the citations from the literature. Of course, this means that you, too, will also be unable to cite anything "authoritative" from the literature.)

A. "No."

Q. "But Doctor, isn't the Annals of Thoracic Surgery the official publication of the Society of Thoracic Surgeons, and aren't you a member of that Society? As a matter of fact, I believe you've published some papers in that journal. Isn't that one of the journals where the important developments in your field are reported? (Or, "Isn't Edmunds' Textbook written by the leaders in your field to describe the current state-of-the art?")

A. "Yes, many people write articles (or chapters) in those journals (books), but they are only expressing their opinions. There is no official body that certifies any of those opinions as "authoritative," and indeed, many articles are accepted for publication precisely because they offer innovative and controversial approaches that never become popular. I often disagree strongly with articles I read in journals."

The attorney may still try to read something into the record from a journal or a book, but your attorney should object that it is not "authoritative." If that objection isn't sustained, for whatever reason, and you're obliged to respond, you can simply say that you - and many other surgeons - disagree with the author's opinion.(Be sure to refer to the article repeatedly as an "opinion.) It is vital that you are familiar with the legal principle called "two schools of thought." This principle was set forth in Pennsylvania in "Fury vs. Thomas Jefferson University," in which the court concluded that it was acceptable to act in accordance with the opinion of a "considerable number, albeit a minority, of respectable and well trained experts in the field." In other words, it is not necessary that you did what the majority of surgeons would have done, as long as your management strategy is acceptable to a respectable minority, and the jury may not decide which school of thought is preferable. (The exact wording above is Pennsylvania case law, but similar principles, perhaps expressed somewhat differently, exist in most jurisdictions, because this decision was so influential.) An example of this principle would be a lawsuit following CABG without cardioplegia in which death was caused by low cardiac output. The plaintiff might allege that failure to use cardioplegia for CABG deviated from the standard of care, but the principle of "two schools of thought" is the perfect defense. (One of my former residents who used the technique of intermittent crossclamping was actually threatened with such a lawsuit, but it was dropped, presumably after the plaintiff's attorney became more familiar with the number of respected surgeons who use that technique.)

Badgering

Plaintiff's attorneys are well aware that physicians are usually quite uncomfortable on the witness stand, and some will try to intimidate you with an aggressive posture, repeated rephrasing of the same question, approaching very close to the witness stand, etc.. I welcome such behavior, because although your defense attorney can object, it is even better if your attorney allows the plaintiff's attorney to get carried away, which gives you the opportunity to make it clear to the jury that he or she is being unreasonable. It will work to your advantage if this happens and you respond in a calm and measured voice, speaking clearly to the jury and to the court: "I hear and understand your question. I'm sincerely trying to answer it as forthrightly as I can, and there is no need for you to bully me." This type of answer enhances your dignity, and your reputation for sincerity and candor, and it simultaneously makes the attorney into the villain. Remember that most or all of the jury is completely new to court procedures except for the unrealistic court scenes they see on TV and in the movies. They may not realize that it isn't appropriate for an attorney to bully you, and you must point out to them even the obvious. Such an answer is also likely to earn the sympathy of the judge, who may then give the plaintiff's attorney much less latitude.

Disarming Behavior

Plaintiff's attorneys are always trying to induce you to lower your guard. A favorite tactic in depositions is to say "I have only a couple more questions, Doctor, and then we'll be done." Then the attorney delivers the most dangerous question of the entire deposition, which you may answer imperfectly because you're relaxed, and it sets the stage for another half hour of questioning, during which you're left wondering "when will this all end?".

In court, a similar strategy is for the attorney to turn away from you, walk toward his or her chair as if finished questioning you, and then to ask offhandedly, almost over the shoulder, a very penetrating question designed to arouse emotion in someone who is off guard, and designed to elicit an answer that will make you look bad no matter how you answer it, such as: "By the way, Doctor, don't you feel any remorse for what you did to this patient?" You may be afraid to say "no" because it will make you look insensitive, but you cannot feel remorse if you did nothing wrong, so you can't say "yes." A suitable answer is "Of course I feel very sorry that Mr. X died after heart surgery, and like all good surgeons, I'm constantly reviewing our complications to see if there is anything we might have done differently given what we knew at the time, but unfortunately, a perfect outcome is never guaranteed, and complications do happen even when we do everything in the best manner. So, though I feel regret and sadness, I don't think remorse is a word I would use, because that implies a feeling of guilt."

Embarrasing Questions

Plaintiff's attorneys will try to make you feel uncomfortable by asking questions (generally about money, favors, or Doctors' tendency to protect each other) that seem to put you in a bad light. In answering, never forget that we belong to a noble, caring, extremely stressful, and challenging profession, and our goal is to help people. It's a certainty that at current payment rates we are grossly underpaid. So, DON'T BE DEFENSIVE. Instead, always view these questions as an opportunity to set the attorney back on his heels by emphasizing the abovementioned points, or - even better - by incorporating in your response a question that is potentially embarrassing for the attorney. (Of course, he or she won't answer it, but if it's done quickly - by taking the ball on the rise, in tennis terms - the jury will get the message.) Always remember that trial lawyers are not high on anyone's list of admirable people, but you have to expose their seamy side.

For example (asked of me as I was already standing up to leave the witness stand, and thus an example of a potentially "disarming" as well as embarrassing question):

Q. "Doctor, how much are you being paid to testify as an expert witness today?"

A. "Well, considering that after I graduated from college, I then had four years of medical school and seven years of residency in general and thoracic surgery interrupted by two years of military service, that I am certified by both the American Board of Surgery and the American Board of Thoracic Surgery, that I couldn't begin to practice my profession until I was in my 30's, and that I then accumulated 25 years of experience doing thousands of cases as a cardiothoracic surgeon, I charge $XXX. Since you only needed 3 years of law school, how much do you make?" (This is the actual answer I always have prepared in advance in case I'm asked how much I'm paid. The truth is that lawyers are rather sensitive to what the public knows about how much they make nowadays, and rarely ask this question anymore.)

Or, here is a line of questions actually posed to a surgeon in regard to a pacemaker manufacturer's representative being in the O.R. during a complicated pacemaker case (the following illustrates how not to answer this line of questioning, as it opened up many opportunities for the attorney to make the situation look embarrassing):

Q. "Was Mr. Representative being paid by you?"

A."No, I don't pay him."

Q. (sarcastically) "So he just shows up and isn't compensated?"

A. "I guess he did it as a favor to me."

Q. "Why would he do a favor for you?"

A. "I don't know what his true motive is. I mean he's a salesman."

Q."Do the hospitals where you work buy his pacemakers?"

A."Oh sure."

Q."And do you recommend that they buy his products?"

A. "I don't have anything to do with what pacemaker goes in, it's controlled by the cardiologists."

By being defensive, the witness had to field a long series of questions before extricating himself with an answer that may or may not have persuaded the jury. How much better it would have been to go on the offensive:

Q."So he just shows up and isn't compensated?"

A. "Perhaps as an attorney you're surprised by that. But those of us in the health care professions, and not just the doctors, chose our careers because we wanted to help people. We're not thinking about money first, we don't run the clock every time we do something, and we're not paid by the hour. Mr. X knew that I had a difficult case to do and he saw an opportunity to be helpful to a patient, so he came. He's done it before and I hope he'll do it again." (You will never look bad while you're making another member of your "team" look good.)

SPECIAL SITUATIONS:

1. If you are an expert witness whose testimony is videotaped, it is quite helpful to try to look at the jury (i.e. the camera). Almost every videotaped witness looks only at the attorney posing questions, rather than at the camera, and this gives the impression that the witness is distant and impersonal. Ask that the camera be placed where you can comfortably turn to look into it after each question is asked, and the effect will be dramatic; you will avoid looking like the evening news anchor who misses the cue to turn to the active camera.

2. If you are giving a deposition that may later have parts read aloud in court, remember that a typed document cannot reveal anything that is not spoken. It cannot, for example, indicate how long it took you to formulate an answer to a question. When you are asked a question that requires careful planning and consideration of what may be asked subsequently, you may sit silently for as long as needed before answering. The transcript will not reveal the delay.

A transcript also cannot reveal the tone and emotion of the speaker. On one occasion I was harassed by a belligerent plaintiff's attorney who was obviously trying to intimidate me into conceding that I was responsible for the (allegedly inappropriate) actions of a consultant nephrologist:

Q. "But doctor, as a heart surgeon, aren't you in charge of your patient's overall care? You told us earlier that the patient was on the cardiac surgery service. Exactly who was responsible for this patient?

A. "The care of a critically ill patient is a cooperative team effort by a number of highly trained and specialized individuals, each of whom contributes his or her particular expertise to the patient's care."

Q. (voice rising and with some frustration) "Yes, doctor, but aren't you the one who is captain of the ship?"

A."The care of a critically ill etc."

Q. (in my face and virtually screaming) "But doctor, among all those doctors, you're the top dog aren't you?"

A. "You don't have to scream at me. I'll be happy to answer your question. The care of a critically ill patient etc…"

This exchange illustrates three points. First, if you have formulated a correct and comprehensive answer to a question, and the same question is repeated with different wording, use the same answer. Of course your defense attorney can intervene with the standard objection "That's been asked and answered," but if your attorney knows you can handle the situation, there are benefits to letting the sequence run its course. If it happens in a deposition, it will demonstrate to plaintiffs' attorneys that you cannot be bullied, and they won't try to do it at trial, because the jury would perceive them as belligerent and unsympathetic. Second, they know that you have put into the record that they were screaming, so that if they introduce the deposition in court because your answer isn't perfect, your attorney can read the embarrassing portion that demonstrates you were being badgered, and can give you an opportunity to answer the question without being under duress. Last, it will demonstrate to the attorney that you are a potentially formidable witness in your own defense, and will even give the plaintiff's attorney pause about proceeding to trial. (In the case described above, the entire action was dropped after that deposition was taken.)

ADDITIONAL THOUGHTS:

1) The Importance of Preparation: Though some of the answers to the questions cited above may seem unrealistically dispassionate and logical, and therefore too good to have been created spontaneously, be assured that they are real, and were given in real trials. But you are right, they were not formulated spontaneously in the heat of a courtroom battle; they were composed in advance, by anticipating that such questions would be asked. So it's crucial to think about your testimony in advance, and to have a strategy for answering the central question in the case, and for phrasing your answer in a way that deters any challenge.

2) Progress Notes as Prophylaxis: It's common to worry about "the chart," and the deep, dark secrets it may reveal to the plaintiff's attorney. Progress notes can be your greatest salvation or they can pave the way to hell. If they are recorded daily, and reflect honest uncertainty about the best way to proceed, they can help you demonstrate that you made carefully considered choices among various alternatives, and though these difficult choices may not always have been right in hindsight, they were reasonable at the time. For example, in the era before PEG tubes, a confused elderly patient who refused to eat following valve replacement was fed via a nasogastric tube rather than by intravenous hyperalimentation, and he subsequently aspirated and eventually died of pneumonia. That decision was relatively easy to defend because a progress note documented that IV hyperalimentation was considered and rejected (though the reason for that decision wasn't detailed). The justification in such a case is not the same as "two schools of thought," in which the chart shows no record of your having even considered another way of doing things in a particular case, since the majority way is not your way. In contrast, in this type of defense there are two or more alternatives that you use in different patients, so it is helpful to document the reasons for the choice. (The prosecution lost all its steam when the jury was helped to understand the risk of bacteremia from prolonged hyperalimentation in a patient with a prosthetic heart valve, but if the prospect of that complication had been included in the progress note, and the plaintiff's attorney and his "expert witness" had seen the note, there might never even have been a lawsuit.) As a final point, NEVER attempt to alter a progress note retrospectively. Even if done with the best of intentions, to add information that is true, your action is likely to be discovered, and will then undermine the credibility of anything else you say. If an attorney really wants to press this issue, forensic techniques now make it relatively simple to establish the age of ink on paper, and whether all components of an entry were written with the same pen (i.e. ink).

3) "The Standard of Care:" We all know that it's not necessary to provide perfect care without complications, only care that doesn't fall below the "standard of care," or what a competent practitioner would have done. For many years now, this requirement has come to mean that we must not only meet the standard of care in our own communities, but in the United States. 4)Reviewing Cases for A Plaintiff's Attorney: Many surgeons refuse even to talk to plaintiff's attorneys, but I believe this is a serious mistake. Most attorneys sincerely do not wish to pursue cases that have no merit, as it wastes their time and money, but they have no way to judge the situation without the opinion of a surgeon. In my experience, one of the reasons trial lawyers use professional witnesses from agencies is because it's hard for a trial lawyer to get a leading surgeon to review a case. Professional witnesses derive considerable income from working with plaintiffs, because they tend to see malpractice everywhere, though one cannot always be sure which is the chicken and which is the egg. If instead, an objective and respected surgeon reviews the case and says there was no malpractice, it is likely that no lawsuit will be filed, and considerable harm will be prevented. (In my experience, plaintiff's attorneys have always been grateful - albeit perhaps disappointed - when I have advised them that there has been no malpractice and it would be unwise to proceed with any legal action.) On the other hand, if one feels there has been malpractice, one has a choice to make: one can offer that opinion verbally in confidence, but decline to provide a written opinion or to testify if one is uncomfortable doing so; or, if one feels the case involves malpractice so obvious and egregious as to require restitution, one may elect to go forward. Malpractice does occasionally occur, and if we don't acknowledge as much, we are not being honest. In one case of obvious malpractice that involved surgeons well known to me personally, I referred the attorneys to another potential expert witness after discussing the case with him, and declined to testify myself. Because of the nature of most cases that come to me for review, I have yet to testify for a plaintiff, though I have seen many cases in which a lawsuit was being contemplated until I gave an opinion that there was no malpractice. So there is much benefit that can come from reviewing cases for a plaintiff honestly and objectively. If you don't, someone less qualified and less objective will do so.

A FINAL THOUGHT: Hopefully you will have no need for these suggestions, but if you are required to testify in court, remember that high emotion is our greatest enemy, not only because it impairs our ability to answer properly, but because it suggests to the jury that we are uncomfortable with what we did for the patient. The members of the jury don't see the plaintiff's attorney as a snake, though you may, and if you seem uncomfortable answering the attorney's questions, the jury will presume something went wrong in the care of the patient. Keep calm, remember you are a physician not an attorney, and do your best to teach the jury what they need to know, so they can understand what happened. Never assume that anything is obvious. Take every opportunity to explain things repeatedly. View each question as an opening to bolster your case. Good Luck!