Pre Vasectomy
Last month we interviewed an experiential composite “fictional attorney” with questions related to the pre-trial deposition activity. This month our “attorney” answers questions about the actual courtroom activity as it relates to the doctor’s personal and professional defense. At this stage the case has processed through all the pre-trial motions and depositions without any sign of settlement and a date has been set for a jury trial.
Q: How can I best help my defense attorney?
A: As with depositions, it all begins with the placement of trust in your attorney. However, you are the medical expert and can provide pertinent information relating to the treatment in question. Be ready to explain the standard of care in treatments of this nature, any ways your actions may have differed from similar treatments and evaluations, reasoning behind your documentation, and your plan if additional treatment had been required. Trust also means telling your attorney about anything you may have forgotten to do.
Q: What other assistance can I provide?
A: Review the case information with the eye of a medical detective and report your thoughts to your attorney. In one case, a doctor requested the toxicological analysis from an autopsy. The attorneys had been unaware of its existence. The report showed that none of the prescribed medication had been found in the patient’s blood. But the analysis did indicate the presence of Demerol and cocaine. Within three days, the case was dropped.
Q: What should I do to prepare myself for the actual trial?
A: Begin by carefully reviewing all your notes, records, and deposition transcriptions. It is important that you do not contradict prior information or testimony during court. Plus, you do not want to bring in new information that may or may not be harmful to your case.
Q: What sort of emotions, if any, should I display in court?
A: Your demeanor in court will be studied and scrutinized by the jury. You want to express caring and concern, while avoiding the appearance of guilt. Likewise avoid appearing arrogant, aloof, or cocky. Many doctors are extremely resentful about attacks on their character, but you need to avoid showing anger, arrogance or annoyance when your competency, judgment, and skill are questioned.
Studies about doctors who are sued frequently show such common complaints as not listening, not showing concern or respect, and rudeness. Such traits will also impact the jurors negatively. You can’t afford to alienate the jurors with your emotions.
Q: My time is valuable, do I really need to spend time rehearsing with my attorney?
A: Remember the first rule of trusting your attorney. Rehearsal enables them to properly prepare you to maintain your composure under pressure, particularly if you are called to the stand. Your attorney can point out ways to stay on target in answering questions without volunteering additional information. Any specific mannerisms that could be harmful to your case will also become evident during rehearsals. Granted that your time is valuable, but losing a case due to inadequate preparation would be even more costly.
Q: Wouldn’t the best defense be to put me on the stand?
A: Maybe. Maybe not. Your attorney will take a lot of factors into consideration before making a decision about putting you on the stand in your defense. Most doctors feel that they can defend themselves better than anyone else, but that is not necessarily the case when it comes to a jury trial. Again, trust your attorney’s judgment.
A medical malpractice claim and potential jury trial is a tremendous emotional blow to any doctor. I hope that this column and last month’s column have provided some guidance in how you can help the attorneys in strategizing the best defense. Recent studies have also indicated that seeking psychological therapy and assistance, coupled with the emotional support of your family, can be extremely beneficial. I hope that you never have to heed the lessons and suggestions of these columns, but it is always best to be prepared for any eventuality.
J Michael Rosenthal, ARM – President and CEO, RGI Insurance Services Mike Rosenthal is an Associate in Risk Management (ARM) and CEO of RGI Insurance Services. RGI Insurance Services provides all types of insurance for doctors and medical groups such as medical malpractice, workers compensation and group benefits as well as risk management services, human resource services and OSHA compliance services.
