Not an uncommon situation for the unfortunate physician on the stand. One recommendation is to “protest such inappropriate behavior yourself,” and “never allow an attorney who is questioning you to raise his voice or speak to you sarcastically or rudely.”
Attorney Ronald Miller says that’s terrible advice:
The playing field is tilted in favor of the doctor. The very best way for a doctor to blow that lead is tell the plaintiff’s malpractice lawyer on the stand that he/she won’t be spoken to sarcastically.
He recommends simply answering the question without minimal arguing.
Related posts:
- How doctors should deal with physician rating sites
- Charlie Weis: Malpractice trial reactions
- Medical malpractice verdicts
- What to do if a plaintiff’s attorney calls you
- Can you be too aggressive in silencing disruptive doctors?
- An abortion fails, mother sues doctors for costs to raise her child
- Treating a malpractice lawyer in the ER
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Once, while testifying in a child abuse case, a defense attorney dismissively called me “Ms. Johnson” as opposed to “Dr. Johnson”.
I did not have to say/do anything.
The female judge was NOT amused.
And I agree with Ronald Miller. It is best to be short and sweet in one’s answers – and not lose one’s temper.
I agree with the attorney’s advice. The judge will chastise the plaintiff lawyer. The jury which has no idea what is going on, nor what anyone is talking about, will take that judge remark as a signal on which side to support.
However, behind the scenes, is another story.
The doctor should file ethics complaints, citing the Rule of Conduct being violated. Pick one sentence at a time, and file a separate complaint for each utterance, once a month. Drag it out for years.
Ask the judge to sanction the lawyer in a private letter, at each offense.
The defense lawyer will never attack the offensive lawyer. The latter gave the defense lawyer his job. The client can be replaced in a minute. Destroy and deter a plaintiff lawyer, and the job of the defense lawyer is ruined.
However, threaten to fire and sue the defense lawyer for legal malpractice if he fails to demand a mistrial, and all costs from the personal assets of the plaintiff lawyer or lying plaintiff expert witness.
Under no circumstances should the plaintiff lawyer get a minute’s rest from uncertainty about his personal future. If the land pirate carries 10 cases a year, and every doctor adopts this tactic, medmal becomes a hell on earth business. The same goes for the lying expert witness. Make him hire a lawyer to defend dozens of ethics and legal charges, seeking the entirety of his personal assets.
This is a good article on deposition preparation that addresses the proper attitude and coping mechanisms of the defendant. It applies to trial.
http://forthedefense.org/CD/Public/FTD/2006/July/2006%20July%20FTD%20-%20Simply%20Positive%20-%20Preparing%20Witnesses%20for%20Deposition.pdf
It comes from an excellent defense site that should be rummaged for other advice.
http://forthedefense.org/
Kevin,
The term prosecutor typically describes the attorney for the state in a criminal matter. This is Exhibit No 1001 of physicians not having a clue what they’re talking about when they discuss legal matters. Although that never seems to stop them from pontificating on them.
The advice you need to follow in this situation is whatever your attorney tells you. Otherwise it’s like listening to your mother in law about that pain in your stomach instead of your physician.
Supremacy Claus, a previous comment attempt on my part apparently dropped, but your first comment so turned me on!
Anon 10:28, begging to differ, I think physicians are very clued in:
Plaintiffs attorneys can sure make a doctor feel like he/she is being prosecuted.
And OBTW, I listened to attorneys once. Every single one of them (including my own) lied (and the NC State Bar, resting on those Nifong laurels, has yet to do anything about it).
I would have been better off listening to my family members about that pain in my butt.
Anonymous: English belongs to us, not to the lawyer. I easily understood Kevin’s term. I suggest the terms prosecutor and plaintiff lawyer get consolidated into one word, persecutor. Both areas of the law are in total failure, save for lawyer rent seeking, a roaring success.
As docs would advise patients to take some responsibility for their health, so should defendants actively learn and do as much for themselves in a case. Imagine telling a diabetic, doc will do everything for you, you relax.
Here is why, the irremediable conflict of interest in both professions. Doc income drops with greater health. The defense lawyer’s job comes not from the client, but from the shenanigans of the plaintiff lawyer. Fire the defense lawyer, he gets another client in a minute. Deter, intimidate, and drive out one plaintiff lawyer, and hundreds of cases never take place. Resisting, going to trial, counter-attacking are painful investments in prevetion of future litigation.
The Supremacy went a step further, and countersued the persecutor. For five years, at every unrelated deposition, the lawyer would say, “You sued a lawyer, I can’t believe that.” They learn.
Because 80% of medmal cases are weak, it is almost a duty of the innocent doctor to attack the plaintiff lawyer by every legal means available, to improve the quality of lawyering.
I love the rule of law, the law, and the lawyer. This correction suggestion expresses real love.
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