Google “medical malpractice defense” and you will find thousands of articles, advertisements, and opposing opinions for the physician embroiled in fighting a malpractice claim. One says apologize, another says never apologize. One offers access to expert witnesses, another says not to use them. One says seek emotional support, another says don’t talk to anyone about it. Some want money for their advice and assistance, some don’t.
So what’s a doctor to do? How can you successfully prepare for your defense and a deposition?
There have been entire books written on this subject and I do not purport to be an expert. However, as a provider of medical malpractice insurance, I do have some experience in the subtleties that mean the difference between winning and losing.
Today we will focus on demeanor and support. For the moment, we will operate under the assumption that the doctor is innocent, the insurance company has been notified, legal assistance activated, the records are in order – in other words, everything looks perfect for a solid defense.
One factor that can work against the defense is the doctor’s demeanor. Some have great, charismatic bedside manners. Some do not. Some seem to radiate an engaging personality of warmth, wit, charm, and sensitivity, Others have an aloofness about them.
Some are great conversationalists with excellent verbal skills. Some do not seem to have that trait.
Unfortunately, those who lack warmth are more likely to be sued. Patients are slow to file claims against doctors that they really “like”. These same doctors are also more likely to lose in court because of that fact. Exit polls have shown that juries are as heavily influenced during deliberations by how they feel about the defendant as by the facts of the case. Many plaintiff attorneys believe that the doctor’s personality plays as big a role as medical details and expert testimony.
If a claim has been filed against you, prior even to the deposition stage, seek out the advice of your attorneys, peers, family and friends on how to increase your “likeability” factor. You want to appear competent and confident without exuding any sense of arrogance or superiority. Some attorneys will even get out the video camera to help you improve your personality and presentation skills. And always avoid being goaded into anger or rage by the opposing attorneys.
Likewise, make sure you are fully prepared for the deposition. This is not only an investigative procedure, but it is an opportunity for the attorneys on both sides to take your measure and develop appropriate strategy. The plaintiff’s attorney will be looking for ways to make you look bad in court, while your attorney will be assessing the chances of prevailing at trial or to determine if pursuing a settlement is the better approach.
A few other helpful hints for the deposition include:
- Do not volunteer information, simply answer the question as asked.
- Do not treat the deposition lightly, even if the setting is informal.
- If you are uncertain about an answer, it is OK to say, “I do not know.”
- The plaintiff’s attorney is never on your side.
- If in doubt, seek the counsel of your attorney before answering.
Another important factor to consider is emotional support. A medical malpractice claim can be taken very personally. Under such stress, it is perfectly acceptable and normal to consult with a psychiatrist or psychologist. Your insurance company may even provide resources for emotional support throughout the legal process.
Keep your family informed and involved. They know you are under stress and can help you deal with it. One doctor who prevailed in both a med-mal case and its subsequent appeal was extremely well prepared in advance of both the deposition and the trial. Despite that advance confidence, it became evident during his first day in court that he needed additional emotional support. At the first opportunity he called his brother and asked him to be in the courtroom as a supportive and calming influence during the entire process.
Recently The Doctors Company announced a series of Litigation Education Retreats throughout the country to assist member physicians involved in medical litigation. These retreats are designed to provide constructive ways to cope with malpractice stress, understand the legal process and prepare testimony from a strategic perspective, as well as offering psychological support and mock deposition practice. I found it interesting that spouses are encouraged to attend these retreats since they play “an important support role throughout the litigation process”.