Secrets for a successful malpractice defense

There's a common saying in the medical community that there are two types of physicians: those who've been sued, and those who will be sued. I would suggest a third category: those who will be sued again. But despite the high probability of being sued these days, many physicians still come to court unprepared to deal with the process of litigation.

Your defense lawyer will probably give you plenty of advice, but too many doctors don't listen, or don't remember by the time the trial takes place. After all, how many of your patients remember everything you tell them about self-treatment and medication?

As a medical expert with many years of experience reviewing malpractice claims and testifying at trials and depositions, I've learned some valuable strategies that can help you defend yourself in court. The following advice is worth reviewing before you take the witness stand.

Seeing is believing

Pay close attention to any medical charts, illustrations, or photos presented by your own attorney or by the plaintiff's, because they can have a powerful effect on the judge and the jurors. Often they're left on a display stand for an entire day of testimony, strengthening their impression. So if your attorney asks for your advice in creating a display, be willing to contribute your expertise. In fact, even if he doesn't ask, offer to help. If the opposing attorney introduces an illustration, check it carefully for misleading information, and let your own attorney know if you spot any errors.

Avoid Yes or No answers

When under cross-examination by the plaintiff's attorney, be prepared to answer his questions in a logical and lucid fashion. If he asks you a series of rapid-fire questions, and demands Yes or No answers, he's probably setting a trap to evoke damaging testimony or a misleading admission. Try to insist—if the judge allows it—on the necessity of explaining yourself carefully. In those situations, I usually respond, "Before taking the stand, I gave an oath to tell the whole truth. To do that, I can't respond to these questions with simple Yes or No answers. Telling the truth requires more than that."

Turn weakness into strength

Virtually all defense cases have weak links that the plaintiff's attorney will try to exploit. When that happens, you and your attorney must recognize the potential danger, and have a clear strategy for coping with it. In one case, for example, the plaintiff's attorney noted that the defendant physician had billed his client $500 for the procedure that gave rise to the malpractice claim. He then pointed out that Medicare's reimbursement rate for that procedure was only $85, and used the disparity to portray the doctor as greedy, as well as incompetent.

The appropriate response for the defendant in this case was to explain that he had charged the "usual and customary" fee for the procedure in that area, and that it's well-known that Medicare's reimbursement rates are often only a fraction of usual and customary fees.

Don't be provoked

Plaintiffs' attorneys often try to portray the physician defendant as greedy and incompetent, hoping to persuade the jury to provide "justice" for the injured patient and to punish the physician who supposedly "caused" that injury. Be prepared for such personal attacks, and try not to take them personally, because that could lead to an angry outburst. Nothing turns off a jury more than an angry physician who calls the opposing lawyer a liar, or who screams, "I am not an incompetent butcher."

Instead, when provoked by such a personal attack, try to hold your temper. Respond calmly but forcefully, with a statement about your values, your expertise, and your concern for your patients' welfare.

A trial isn't an IQ test

You don't have to show the judge or the jury how smart you are. That's a sure way to damage your case. Don't lecture, pontificate, or be condescending. You need to communicate clearly, making your points as though you're speaking to a patient or her family. You don't have to convince the jurors of your vast medical expertise. Just use laymen's language they can easily understand. For instance, instead of describing the patient's "systemic hypertension," just say "high blood pressure."

Make eye contact—when it counts

Some legal advisors suggest addressing the jury throughout your testimony. I disagree. It looks unnatural and rehearsed if you do it every time you answer an attorney's question. Besides, it can be distracting. In one case, a trial consultant advised the doctor to respond to all questions by facing the jury, even though the plaintiff's attorney who was grilling him was standing on the other side of the courtroom. The doctor looked ludicrous and phony. Instead, I recommend turning to address the jury only when making important statements that you particularly want to have a major impact on them.

Take your time, and take control

Timing is important, and taking your time gives you a measure of control. If the plaintiff's attorney hits you with a series of rapid-fire questions, you won't score any extra points with the jury by responding with equally rapid answers. Take time to think before answering each question. In addition to letting you gather your thoughts, it will also give your own attorney a chance to object to inappropriate questions. If the question isn't clear, ask the attorney to rephrase the question. If you need more time, ask him to repeat it. These strategies will give you time to think through your answer, and help you maintain control.

The blame game

Jurors in malpractice trials often feel that justice isn't served unless a "guilty" party has been identified as bearing responsibility for the patient's injury. Fair or not, that someone is usually the physician. If you're the defendant, therefore, you need to give the jury an alternative target—and it doesn't have to be another doctor. One approach is to use medical authorities, statistics, and expert testimony to convince the jury that the patient's poor outcome was the result of an unexpected, unforeseeable, or unpreventable occurrence over which you had no control. Another possible defense is to blame the plaintiff if he failed to follow your recommendations for self-care, medication, referrals, or follow-up tests.

Questions with no answer

Attorneys aren't medical experts. So the plaintiff's lawyer may ask you questions that just don't make clinical sense. If that happens, don't be argumentative, and don't be patronizing. It's perfectly legitimate to answer such questions by saying, "I don't understand what you mean. Could you please rephrase that question?" Or if you feel the question has no bearing on the case, you might say, "I don't understand the relevance of that question." Another possible response is: "That question goes into clinical details that are beyond the scope of my specialty."

Be respectful

Jurors value their time as much as you value yours. Some of them may resent leaving their jobs to serve on the panel, just as you resent taking time away from your practice. Therefore, they deserve and expect your respect. Coming into court late, or dressing in a way that suggests you've just left a beach party makes a poor first impression. If it implies that you're not concerned about the outcome of the case, it may also imply that you aren't concerned about the patient's poor outcome. Jurors are likely to interpret casual attire, gum-chewing, cell phone interruptions, or intermittent yawns as a lack of professionalism—and possibly your medical competence. So once you're in court, act like a professional.

__________________





If U Think Ur Life Getting Necrosed,Ur Dreames Inflammed,Ur Thoughts Thrombosed,Then Try This Out.Spread D Neoplasia Of Love Around U.
V.H.SHAH

good staff to know.

thank you