Authored by Josè T. Brown

In Conjunction with an Article By Raymond Chan, M.D.

Awaiting the verdict after a lengthy civil trial provides an anxiety unknown to many physicians. It is a period of time that cannot relate to other experiences in life because the Defendant physician faces uncertainty. A recent lengthy civil jury trial completed June 27, 1997, resulted in certain observations which may be helpful to physicians of the Genesee County Medical Society. These observations include:

1. Defendant Doctor’s participation in trial is an absolute benefit to the Trial Attorney.
2. Defendant Doctor has a much better understanding of the application of law and facts to the medicine being judged by personal involvement.
3. Expert Witnesses varying in experience, degree, and background may be placed on the same plateau in the Jury’s eyes.
4. Theories of the claims against the Defendant Doctors can change or be modified during the course of trial.
5. It takes a great deal of conviction and commitment from the Defendant Doctors to be thoroughly involved in this process.

There is an old adage that one should not complain unless involved. This adage should be strictly applied to the doctor’s participation in discovery and trial. Discovery is the legal term utilized for purposes of investigating the case to prepare for trial (answering Interrogatories, taking depositions, reviewing medical records, review of medical literature, discussion with defense experts about the defense theory of the case.) At the trial, the jury determines the facts learned during the discovery process. In most medical malpractice cases, the discovery process will average approximately a year and one-half to two and one-half years, with trial following thereafter. It goes without saying that many doctors become frustrated and eventually exasperated by the length of time it takes to resolve their case. The defendant doctors vary widely in their participation in the case. The spectrum includes: 1) out of sight, out of mind (I won’t open my mail or return my attorney’s phone calls and then eventually this case will go away); 2) the wild-eyed pinball defendant (responding to every correspondence and every telephone call with three or four inconsistent responses); 3) somewhere in between is the “ideal” defendant, one willing to participate in his or her defense by attending depositions, by reviewing medical literature and providing important medical literature to your attorney, being well prepared for their own depositions by reviewing the medical records, and continuing to provide rational insightful thoughts about defense of the case.

There are several keys to a good defense, which may vary depending upon the type of case, the strength of the medical facts, the strength of the plaintiffs’ attorney and the relative philosophy of the Judge. However, there are several key consistent points in all medical malpractice cases that should be addressed:

1. Preparation for your deposition. (Many physicians tend to review only their progress notes or their orders in the chart and do not have a good handle on what the Nurse’s notes may indicate, or other physicians’ slants on treatment, based upon their progress notes and orders. This lack of preparation can be devastating to a medical malpractice defense.)
2. They don’t listen to their attorney before deposition. On innumerable occasions attorneys in this office have advised the doctors that “Yes”, “No”, “I don’t recall” are fine and appropriate answers in a deposition, yet, some doctors can’t help themselves in wanting to educate the plaintiff’s attorney about his or her knowledge of medicine. The deposition is not going to be read by the plaintiff’s attorney for theories to be developed against a doctor, but rather, by the plaintiff’s expert, who in many cases is a “hired gun”.
3. Being willing to attend plaintiffs’ and experts’ depositions. In many cases there is a who believes whom scenario raised in front of a jury. Did the doctor tell the patient this or does the patient have selective memory during a hospitalization or office treatment? Attending the plaintiffs’ depositions can minimize the exaggeration for effect that occurs by many plaintiffs. Secondly, attending the deposition of plaintiffs’ expert takes courage. I have not seen many experts back down from their opinions because the defendant doctor is sitting across the table from them, however, the defendant doctor certainly gets a handle upon leaving the deposition as to whether the expert is credible, whether is opinions are accurate and well-founded, and in the doctor’s mind, whether the case should proceed to trial.
4. Insist upon reading all of the depositions. The attorneys in our office prepare Summaries for the insurance company or the hospital risk manager for review. This is not to be substituted for the deposition transcript of the particular witnesses in the matter. The doctor should insist upon reviewing the transcript so they get a good grasp of those depositions they did not attend. It should be pointed out that many insurance companies will pay the expenses of the defendant doctor to attend depositions, many of which occur out-of-State, requiring air fares or hotel fees.
5. Review every single record and deposition prior to trial. Plaintiffs’ attorney will be prepared to ask you questions on every record or deposition which has been utilized in the case. There is nothing worse in the presence of a jury of not knowing a medical fact, or, being unable to read a nurse’s entry.
6. Please attend your trial with interest and confidence. Many trials have been lost, even though the doctor was present due to lackadaisical poor attitudes. Why attend the trial if it is to be looked at as a hindrance, rather than a learning process in which you are trying to educate a jury on the risk versus benefits or the judgments you must make in treating patients on a daily basis. The trial should be an exercise in educating jurors who will be very similar to your own patients, who will be laymen rather than a jury of your “peers”. Most jurors understand that physicians are not “God” or warrantor of cure, but, do the best they can with available resources. To tarnish this image by displaying a poor demeanor or bad attitude during the course of a trial only motivates a jury to return a verdict against the doctor.

Despite these edicts or commandments from the attorneys in our office, regarding malpractice cases, many doctors want to play with fire by only partially fulfilling the above directives.

I am certain that if these guidelines are followed, this office, along with the help of the local medical society, will continue to maintain the high percentage of “No Causes” before Genesee County Jurors. The participation of an interested Defendant Doctor is invaluable in defending medical malpractice cases.

P.S. After four and one-half hours of deliberation following a five-week trial, the Jury returned a “No Cause For Action” in favor of Dr. Raymond Chan and Dr. Roberto Villegas.

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