Medical Malpractice: The Trial

Our trial preparation is complete and we are ready to get the show on the road. The trial is similar to a football game that lasts up to a week. Home field advantage is gained by having a sympathetic jury.

The following is a game plan for a malpractice defense that will give you the greatest chance of victory:

• Clothing: The $1,500 Armani suit has to stay in the closet. You must look professional, clean cut, and humble. I will remind you over and over again that the plaintiff's attorney, in addition to trying to make you look incompetent, will also try to portray you as arrogant, greedy, and rich.
• Jury Selection: After all the potential jurors are screened and excused for potential bias, each side may strike three additional people. Help your lawyer pick the best jury to get you home field advantage.
• Demeanor During the Trial: The jury needs to feel that you are actively engaged throughout the trial. Make eye contact with the jurors and the plaintiff. Take notes. It allows you to pass information to your lawyer without speaking, while also helping you appear attentive. 
• Your Day on the Stand: When answering questions on the stand, be clear, concise, and polite. If you need time to gather your thoughts, or are confused by a question, remember the phrases, "please repeat the question" or "please rephrase the question." This tactic will not only give you more time to think but it tips your attorney off as to what may be occurring in your mind so that he or she can step in to help. If you can, get up and use a visual aid in front of the jury. It puts you face to face with the individuals who will determine your fate and allows the jury to see you as a knowledgeable, compassionate and empathetic physician. Up until your testimony, the jury has been hammered with how inept, cocky, arrogant, deceitful, and greedy you are. It is your testimony that changes the momentum in the game.
• Tricky Questions: Certain types of questions are difficult to answer with a simple yes or no and are designed as traps by the plaintiff. Elaborate on your answer and let the judge direct you to say yes or no if necessary. Always be polite and respectful. Do not answer a question you don't fully understand. The plaintiff's attorney will bait you into an argument or badger you. Do not loose your cool. The easiest way to blow the case is to yell on the stand. 
• Your Experts on the Stand: You need to be at the pre-trial meetings between your experts and your lawyer. You know the case, the medicine and have had an opportunity to read the deposition's of these individuals. Help prep them for how the plaintiff will attack when they are on the stand. Help them to not be caught off guard. These meeting are not optional for you.
• Closing Statements: These melodramatic speeches are designed to summarize each side's arguments and evidence, and is the last chance your team has to impress the jury prior to the judge handing the case over to them. while this is your lawyer's time to take the field, it is important to review the remarks to be covered and give your input. When the 12 jurors vote, they can reach a verdict with varying for/against ratios. Malpractice cases do not have to be proved "beyond a reasonable doubt," but instead just by "the preponderance of the evidence presented." 

Remaining involved in the entire case process up through and including the trial and verdict will give you the best chance for success. You must be an active participant in your own defense. 

If you would like the entire article or more information, please email me at info@gartmd.com

Medical Malpractice: Preparing for Trial

Your top priority during this period is to dissect all of the witnesses expected to testify during the trial. Read through all of the witness depositions and take specific notes regarding inaccuracies, embellishments, exaggerations, or out-and-out distortions. Focus specifically on how witness testimony might infer to a jury:
1. You breached the standard of care
2. your breach in the standard of care had a proximate relationship to the plaintiff's "unexpected" event
Your analysis will lead to detailed medical discussions regarding specific point in these depositions that will help your lawyer with how they will question these individuals during trial. You need to be an expert with your own deposition. In a nutshell, your testimony during the trial is predicated on your pre-trial deposition. It should be apparent to you that failure to anticipate the weaknesses in your deposition will lead to trouble when you are on the stand. You cannot prepare for every question when on the stand. if you are asked a question that catches you off guard, buy time with the following phases:
1. Can you please repeat the question?
2. Can you please rephrase the question?
Go through a mock trial with your attorney. This will enable you to:
1. Get a feel for the tempo and effect of a seasoned lawyer's questioning
2. Improve upon explaining yourself in lay terms.
3. Get critical feedback on how a jury may interpret your tone and body language.
4. Get to talk about your hobbies, your family, and the work you do for the community. The jury must view you not just as a physician.

Medical Malpractice: Discovery Stage

Despite your best efforts at avoiding a lawsuit, one has been filed. Now begins the discovery phase of the litigation process, where the plaintiff and defense have an opportunity to test the strength of their cases by taking depositions and submitting evidence to be used at trial.

You will need a description of the event in question. It is important that your lawyer understands what has occurred in your own words. He or she is aware of what the strength of the plaintiff's case may be but they are interested in why you feel the charges against you are unjust and how convincing you are in your assertions.

During the initial meeting with your lawyer, an assessment will be made as to how you would fare as a defendant on the stand. Are you believable? Do you come across empathetic or self-righteous? Can you speak clearly and in a manner understandable to a lay person?

If you would like more information regarding the medical malpractice process, surgical peer review, deposition preparation or surgical case review, please email us at info@gartmd.com

Medical Malpractice: Deposition

Preparation

     If you don't understand both why the plaintiff feel you breached a standard of care and his or her plan of attack, you might as well settle out of court. The deposition is an opportunity to bolster your defense, not the plaintiff's. The following is an excerpt of tips for a deposition from an article I published. Feel free to email me at info@gartmd.com for more information.

Review the medical record

Be familiar with the medical record, but more specifically memorize the circumstances and events that surround your particular unexpected outcome.

Be familiar with the medical literature pertinent to your case

Beat the plaintiff's lawyer to the punch. Know the medical literature that supports your actions, or provide a good reason why there is no supporting literature.

Know your own personal information

Very little will be off limits for questioning. Be prepared to answer personal questions.

Review other depositions

By reviewing other depositions pertaining to your case you will get a feel for the opposing lawyer's style and emphasis. Every attorney has their own way of setting up their questions to elicit a potentially lethal answer.

Go through a mock deposition

You should have your lawyer pepper you with the toughest questions he or she can think of. You need to be prepared to answer questions from a seasoned attorney.

During the deposition

Dress and act professionally, speak clearly, don't lose control, be brief, don't bring notes.....

The deposition is your last chance to state your case prior to trial!

Myles Gart, MD

For more information on The Deposition or other medical legal issues please visit GartMD.com or email me at info@GartMD.com