Diary of a Malpractice Trial: Lessons from the Witness Stand

by Jeffrey A. Brown, M.D., F.A.C.S.

(Editor's note: The following is a first-person case study of a medical malpractice claim filed against a doctor insured by The Doctors Company. Aside from preparatory research, the article notes the emotional impact, need for support and critical factors in mounting a successful defense. Originally published in The Doctor's Advocate, Fourth Quarter, 2004.)

In the spring of 1998, I notified The Doctors Company of a potential lawsuit. An angry patient believed that she had not received proper informed consent for her surgery. She contacted another of my patients who had undergone similar surgery, then hospital administration, and then the local newspaper.

The newspaper published an investigative article. The plaintiffs filed their suit together. Within weeks, three more patients had filed similar suits. Formal interrogatories were sent. I met with two claims representatives from The Doctors Company and the attorney who was assigned to lead the defense. Because the award could exceed my policy limits, I hired my own lawyer to assist me. The corporation that employed me was also sued. I asked for and was assigned separate counsel. A year passed.

The plaintiffs demanded in discovery that I provide copies of every article and textbook that I had ever read, every article that I had ever written, and notes from every lecture or workshop I had ever given on the subject of their suit. I gave them 60 articles.

Before my deposition, I reviewed all the pertinent literature on the subject. I was already knowledgeable in the field, so this was not a burden. No one would know more about this subject. The weekend before the deposition, my attorneys asked me the toughest questions that I could expect to hear. They would eliminate the anxiety of the unsaid. My deposition took 16 hours over two days. I had highlighted supportive statements in the chart and organized them chronologically. I cited the record for every statement I could. Because my answers would become the basis for efforts to impeach my testimony at trial, I needed to be honest and consistent. This honesty would be the essential factor in my defense.

I reviewed the background of the plaintiffs' experts, judged them, and composed questions that probed their knowledge. I attended their video depositions to show that I was evaluating every comment and helping my attorneys to pose follow-up questions. The experts were forced to attack a real person who sat across from them. I believe this limited the extent of their accusations.

The trial was scheduled to begin three years after the first angry call. My attorney was hospitalized, so the trial was postponed for three months. One month before the new date, I met with my lead attorney, an attorney who would assist him, and a consultant in communication skills. They videotaped my responses to inflammatory questions. I learned to relax and to pace myself, and when to pause. We reviewed courtroom dress, behavior, and procedure.

A trial is an emotional roller coaster that proceeds ritualistically. It begins with jury selection--like a pick-up baseball game. The trial proper starts with defense motions and judicial decisions. Not all of them were favorable. It was difficult to endure the opening statements that publicly impugned my character. After the first day, I needed more support. I asked my brother, a surgeon, to attend. He provided useful reflections on testimonial nuances. Testimony begins with the plaintiffs, who proclaim their injuries. During cross-examination, my attorney would then be polite and calming. Like a hypnotist, he easily elicited the responses he wanted to hear.

I was called to testify by the plaintiffs. My attorneys instructed me to be responsive and helpful, to lean back, act relaxed, confident, and never argue. I was grilled for two hours. My side then cleverly followed up with questions that allowed me to read more completely documents only partly presented. They would no longer be misleading.

The plaintiffs' case was a chess game of surprises and last minute witnesses, new evidence, and motions. Here's where my lawyers' remarkable skill and competence could shine. I was the patient and did my best to be patient. After five days of trial and three years of preparation, the plaintiffs rested, and I could tell my side of the story. Our case began with my expert. I was moved by the support that he gave me and astonished at the intensity of the attack that he calmly deflected during cross-examination.

My direct testimony was a chance to show that I was a caring and competent physician. I was able to rise from the witness stand and use posters as props. I stood before the jurors as I spoke. The plaintiffs' attorney jokingly objected only once, asking if my lawyer would please toss in an occasional question for good form.

The cross-examination had all of the drama and excitement of prime time TV. Newspaper reporters were present. Interested parties seated themselves as in a wedding--or a funeral. Repeatedly, the plaintiffs' attorney pounced on me, trying to impeach my testimony. He couldn't.
My attorney's closing arguments were composed like a scientific article. Every statement was supported by a quotation from the record. No drama. The facts spoke loudly enough. Surprises and games continued until the final word. The plaintiffs get the last word.

Jury deliberation went until the following day, which was Friday. The plaintiffs had asked for $28 million in compensatory and punitive damages. Only when I heard the figure in the closing argument did I realize my gamble. My insurance would cover $2 million--and three more plaintiffs were in line should I lose.

I had a hint of success the next morning. The jury asked for a definition of "injury." They wanted a dictionary. The judge said, "No."

On Friday afternoon I was at home. My attorney kept me away from the courtroom. The phone rang. My wife answered and heard just two words: "We won!"

Postscript:

Three months after the verdict, my lawyer had a heart attack while exercising on a treadmill at his home. He died. This had been his last trial. The plaintiffs appealed, claiming that the presiding federal judge had abused his discretionary judgment. An appeals lawyer was assigned and briefs were filed eight months later. Our brief was based on legal precedent, not on trial evidence.

One year after the trial--five years after the suit was originally filed--I attended oral arguments as an observer. The U.S. Court of Appeals is an imposing tribunal of law school professors who pose pointed questions with dry humor. Time is limited for oral argument. The plaintiff again gets the last word and a chance to rebut. Questions to the plaintiffs' lawyer were blunt. A senior judge asked him ironically, "You thought you had a slam dunk? You thought it was Christmas?"

The tone of their questions framed the opinion that was rendered after three more months. I heard an excited message left on my cell phone after a day's surgery. It was from The Doctors Company's regional assistant vice president. We had become close during the years of trial. "We won! Again!"

Choose your malpractice carrier carefully. One day it may become your lifeline. I was lucky. I did.