MALPRACTICE

How doctors sabotage their own defense

Jurors dislike doctors with big egos, but plaintiffs' lawyers love them.

By Berkeley Rice
Senior Editor

Some physicians believe that not only are they always right, but that every other point of view must be wrong. When that attitude is on display in front of jurors, doctors are only helping me beat them in court."

So says Rodney Margol, a plaintiffs' attorney in Jacksonville, FL. Margol isn't the only attorney who feels that way.

Jeffrey Allen, a plaintiffs' attorney in Boston, doesn't wait until a case gets to court. He looks for signs of arrogance when he questions doctors in a deposition. "That helps us decide whether to settle or try a case," says Allen. "If he's really overbearing, the jury will hate him, which makes our case much easier. In fact, we might call him as a witness even before we put our own client on the stand, hoping he'll make the jury so angry that it will affect anything he says in his defense.

"We once tried a case against a physician who sat there expressionless throughout the trial," Allen recalls. "One day, after court had adjourned, I asked his defense attorney, 'Where's the guy's wife? How come she's not up there sitting in the front row, making him seem more human?' His lawyer answered, 'This guy doesn't want anybody to see his judgment questioned, particularly his wife.'

"We didn't have a very strong case that time," says Allen, "but once it became clear that the jury didn't like the defendant, we ended up settling for a sizable sum. I still think we would have lost if the doctor had seemed more human."

Here are other insights attorneys—both plaintiff and defense—shared with us when we asked about how doctor's attitudes affect their day in court.

Don't act like a"know-it-all"

Some doctors are so nervous in court that they use arrogance as a protective shield, trying to impress everyone with their vast knowledge. Let's face it: No one likes a "know-it-all," particularly jurors. That's one reason defense attorneys generally advise physician clients to keep their responses brief and to the point. Another virtue of brevity is that it limits the danger of an unwitting admission. Remember, what you don't say can't hurt you.

The jury is a group of laymen—not your professional colleagues. Jurors typically represent a cross-section of the community. So if you're explaining complex medical concepts or procedures, try to avoid technical jargon if possible. Both patients and jurors often interpret jargon as a sign of arrogance, say defense attorneys. If you must use technical terms, translate them into words that laymen can understand. For example, you might describe nerves as "electrical wires carrying instructions to the body;" or the myelin sheath around them as being "like insulation."

If you feel nervous when you take the stand, some lawyers suggest confessing such feelings to the jurors. Most will understand, since they may be a bit nervous themselves about being in court. One surgeon, who was practically shaking during his testimony, stopped in mid-sentence and admitted: "I often do delicate surgery under real stress, but this is the hardest thing I've ever done." His disarming confession may not have changed the facts of the case, but it gained him more sympathy from the jury.

While candor on the witness stand may work to your advantage, sarcasm or wisecracks are dangerous, cautions Stephen Mackauf, a malpractice plaintiffs' attorney in New York City. "It may be from sheer nervousness, or from frustration at having to explain medical decision-making to a bunch of laypeople," he says, "but it makes the doctor look incredibly arrogant."

Mackauf cites a case involving an ob/gyn who'd performed an emergency cesarean. "When he was on the stand," he recalls, "and I asked him why he'd done the C-section, he replied, 'It's very complicated—you wouldn't understand.'

" 'Try me,' I said.

" 'It's called BWCO,' the doctor said.

" 'What's that?' I asked.

" 'It stands for Baby Wouldn't Come Out.' "

While that flip remark might have been amusing in the doctors' lounge, it wasn't appropriate in a trial about a severely injured baby.

Don't make life hard for your attorney

James Lewis Griffith Sr., a malpractice attorney in Philadelphia, has successfully defended hundreds of doctors in court. But when he's faced with an arrogant client, he may think about settling an otherwise defensible case rather than risk letting the doctor appear on the witness stand. "When an insurer assigns a new case to me," says Griffith, "I get my first inkling of whether I'll press for a settlement from the way the physician initially reacts to me and to the judicial process."

In a recent case Griffith handled, the suit alleged that the physician was so arrogant that the patient had been afraid to ask him any questions about the risks involved in a procedure. "When I called this doctor to discuss our defense strategy," Griffith recalls, "his response was, 'You're the lawyer. Isn't that what you're getting paid for?' At that point, I figured the patient might have a valid complaint."

In another case, Griffith had trouble contacting a new client. "After leaving several phone messages for the doctor with no response," says Griffith, "I finally sent him a registered letter informing him that we might have to default on the complaint if I didn't hear from him. He then called back, but he acted as if the case was an unreasonable imposition on his valuable time."

That imperious attitude would probably have sunk this doctor. One of the plaintiff's chief allegations was that this pediatrician hadn't returned her urgent phone calls seeking advice about her child's condition. As a result, she contended, her child had suffered irreparable harm by the time she finally got him to the ED. Had the doctor's failure to return the mother's calls actually contributed to the child's injury? "I'm not sure," says Griffith, "but based on my own experience with this doctor, I feared that a jury might well decide it did."

Don't fight against the plaintiff's attorney

Some doctors betray their arrogance only when they're angry, which is why aggressive plaintiffs' lawyers will provoke them by questioning their skill and judgment. For the jurors, however, such provocation is no excuse. They may assume that the attorney's demeanor is merely part of his courtroom performance, but they won't forgive the doctor's behavior as easily. In fact, they may wonder if it played some part in his treatment of the injured patient.

Griffith remembers a physician who damaged his own defense as soon as he got on the witness stand. "The longer he testified," says Griffith, "the deeper he buried himself. He jousted with the opposing counsel instead of answering his questions, and when he did answer, his voice dripped with sarcasm in a futile effort to humiliate the lawyer. The jury was so turned off by these tactics that he lost a case he might have won. If I had to defend this doctor again, I'd recommend settlement instead of going to trial."

Some doctors try to show the plaintiff's attorney how smart they are. If the lawyer questions their judgment, these doctors will get huffy, and insist that "no knowledgeable physician would ever make such a statement." That attitude puts off jurors, and can damage a physician's defense if the lawyer then cites an opinion from a recognized authority.

"If a doctor has a haughty personality, it will probably become apparent at some point in the trial, particularly under the pressure of cross-examination," says Boston plaintiffs' attorney Alice Burkin. "Most doctors resent having their judgment questioned or criticized, and they tend to react with anger when the plaintiff's lawyer attacks them. That's fine with me, because angry defendants make perfect targets for us."

Burkin's colleague Jeffrey Allen offers doctors this final advice: "If you're sued," he says, "forget what you think about lawyers and the legal system. Check your arrogance at the courtroom door and follow your lawyer's advice. No matter how much you think you know about medicine, you're not an expert on malpractice law. And don't assume that you're smarter than us plaintiffs' lawyers. Remember: Once you're sued, you're in our OR."

Send the doctor to charm school?

Some malpractice carriers now hire professional trial consultants to handle "witness preparation." The American Society of Trial Consultants has nearly 400 members who offer such services, along with jury-selection advice, community attitude surveys, and mock-trial focus groups.

Such preparation typically involves taking the doctor through the trial process, including the kind of tough questioning he'll get from the plaintiff's attorney during cross-examination. In a major case, a consultant may put the doctor through a mock trial in front of a "focus group" of typical jurors. The doctor then gets to see himself on videotape, and he may watch through a one-way mirror as the group discusses his performance.

"This is a remarkably effective way to get him to change his behavior," says Rick Fuentes, a consultant in Atlanta. "We can't give him a new personality, but we'll try to help him become more comfortable, and to emphasize his human side. Jurors want the doctor to care about the patient as an individual human being, not simply as a case."

Amy Hanegan, a Seattle consultant, says that one of the major problems for doctors is loss of control. "In the courtroom, they suddenly feel lost, like they're in a foreign country. So when the plaintiff's attorney starts grilling them, the doctor's defense mechanism kicks in, often in the form of arrogance."

Hanegan recently coached a surgeon who was one of several defendants. "He thought he should never have been part of the suit," she says. "He felt that the other doctors were at fault, and he made that clear in his deposition. His lawyer and I both felt the jury would hate him because of his arrogance."

Post-trial interviews with jurors show that even when there's clear evidence of negligence, they'll often excuse a defendant who convinces them he was trying to do his best. Doctors who admit that they've made a mistake, and express compassion for the victim are likely to win similar compassion from jurors.

Arrogant doctors, however, are generally reluctant or unwilling to admit mistakes. Sometimes, that attitude is so ingrained that there's not much a consultant can do to hide it. In such cases, it doesn't pay to try to turn a sow's ear into a silk purse.

"Before jurors ever get to the facts of a case," says Linda Crawford, a consultant based in Cambridge, MA, "they'll ask themselves, 'If I had a serious medical problem, would I be safe in his hands?' If the doctor seems concerned, competent, and compassionate, they'll figure he did the best he could. If he's cold, hostile, and arrogant, they're more likely to believe the plaintiff."

 

Berkeley Rice. Malpractice: How doctors sabotage their own defense. Medical Economics 2002;17:36.