Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)
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Executive Summary
Professional disciplinary actions are increasing throughout the United States. In most instances, physicians have the opportunity to litigate the allegations against them in an evidentiary hearing. Because evidentiary hearings are similar to trials, counsel should represent physicians in such proceedings. Typically, a physician testifies via direct examination by the physician’s counsel and is cross-examined by the prosecuting attorney. Physicians who testify need to be prepared for and rehearse such testimony and heed the advice of counsel familiar with presenting evidence in hearings and trials; they must not attempt to control the proceedings themselves. Many physicians make serious mistakes in their own testimony; some of those mistakes could result in an adverse outcome.
Mistake 1 Proceeding to Hearing Without Competent Counsel
Physicians often believe that they will be exonerated if they are given the opportunity to explain the circumstances of the care that was rendered. Many believe that they can adequately explain their treatment decisions as they would to their colleagues. They fail to recognize that hearing procedures involve a means of communicating information that are different from those used in their practices or in their educational processes. Some physicians make the critical mistake of not retaining counsel to assist them in the hearing.
Action Step Physicians should consult with counsel experienced in disciplinary hearings. Such counsel should prepare their clients thoroughly for examination and cross-examination.
Mistake 2 Failing to Allow Counsel to Control the Flow of Direct Testimony
Direct testimony is best presented in an organized fashion developed by the physician’s counsel. Many witnesses, including physicians, tend to volunteer additional information when responding to questions or to exceed the scope of the anticipated response to the question prepared by counsel. Doing so interrupts and disorganizes the flow of the question-and-answer process and reduces the effectiveness of direct examination.
Action Step Physicians need to understand and accept the concept of presenting evidence in a controlled manner. To present direct testimony effectively, physicians must listen to the preparation efforts of their counsel and be patient with the flow of the questions and answers.
Mistake 3 Attacking the Patient
Physicians may believe that the patient is responsible in whole or in part for any adverse outcome or difficulties the patient may have suffered. Noncompliance by a patient certainly may be relevant. However, the physician must understand that a direct attack on the patient by the physician can be counterproductive. In most instances, counsel must handle evidence of noncompliance and issues relating to the credibility of the patient in a manner that addresses the issues without rising to the level of a personal attack. The physician must listen to the attorney’s plan for presenting evidence of noncompliance or evidence that could affect the patient’s credibility and abide by that plan. A direct attack on the patient by the physician can place the physician in a poor light before the trier of fact (the judge or hearing panel).
Action Step The physician must participate in, understand, and agree to counsel’s plan to develop issues of patient noncompliance or credibility and not resort to personal attacks.
Mistake 4 Attacking the Prosecutor or the Prosecutor’s Theory of the Case
Physicians may be frustrated that criticisms have been developed and have resulted in disciplinary action. Sometimes a physician will vent this frustration in testimony by attacking the prosecutor’s theories of the case, the prosecutor’s expert witnesses, or the prosecutor individually. Such attacks can adversely affect the physician’s credibility.
Action Step Physicians must understand the tactics attorneys will employ to present the evidence against them and must always respond in a professional manner. Physicians must avoid any emotional outbursts and must appear to be calm and reasonable before the trier of fact.
Mistake 5 Overstating the Facts
Physicians must avoid overstating facts. Overstatement or improper embellishment of recollections of events may present an opportunity for effective cross-examination. Physicians should avoid using such terms as “never” and “always” when communicating recollections of their interactions with patients or common practices.
Action Step Physicians should discuss in detail with counsel any testimony that will be presented. They should not testify in a manner that may give rise to additional areas of cross-examination or rebuttal testimony.
Mistake 6 Embellishing the Interpretation and Description of Medical Record Entries
Physicians may tend to embellish or overstate the significance of medical record entries. Brief (and sometimes inadequate) medical record entries can give rise to significant criticisms of physicians. Physicians must avoid attempting to overstate the meaning and significance of entries in patient charts to minimize the opportunity for effective cross-examination or the use of rebuttal witnesses.
Action Step When discussing entries in medical records, physicians must testify candidly and in a controlled fashion without embellishment or overstatement.
Mistake 7 Failing to Be Responsive
During cross-examination, the prosecution will attempt to identify and exploit weaknesses in the physician’s position. Like most witnesses, the physician does not want to make concessions and may attempt to avoid pointed questions by providing nonresponsive answers. Typically, these efforts adversely affect the physician’s credibility.
Action Step Physicians must understand that nonresponsive answers adversely affect their credibility, and they must be able to provide responses to pointed questions that will increase their credibility rather than detract from it. Thorough preparation for testimony is essential.
Mistake 8 Arguing With the Prosecutor
Physicians may view cross-examination by the prosecuting attorney as an opportunity to engage in a debate with the prosecutor. Such responses can adversely affect a physician’s credibility, and the trier of fact may interpret such answers as an attempt to avoid being responsive to questions.
Action Step Physicians must follow through with the trial strategies formulated by counsel and understand that responding to questions in an argumentative fashion detracts from their credibility.
Mistake 9 Using Nonverbal Communication
Typically, the trier of fact observes only one witness during the entirety of the proceeding: the physician. The physician needs to control nonverbal communications throughout the proceeding and must understand that glaring at adverse witnesses or shaking his or her head in disagreement with testimony is not typically conducive to establishing a good rapport with the trier of fact.
Action Step Physicians must act in a controlled manner throughout the proceeding and avoid nonverbal communication.
Mistake 10 Volunteering Information at the End of Testimony
It is not unusual for physicians to volunteer a final statement or comment at the conclusion of testimony. Typically, such statements give rise to a new series of questions by the prosecuting attorney and may allow the prosecuting attorney to present a rebuttal witness.
Action Step Physicians must understand the trial strategies of their counsel in the presentation of evidence and testimony and must avoid volunteering additional statements or comments.
Conclusion
Preparation of the physician for testimony, including rehearsal, is essential to an effective presentation. Physicians must understand that a hearing or trial involves a different means of communicating information than the means used in their training and practice. To avoid surprises in litigation, physicians must understand and support the tactics of counsel.
Written by:
Bruce Lamb, Esq.
Peer reviewed by:
Jon M. Pellett, Esq.
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them