Your Malpractice Advisor: Ten Things Never to Do at Your Trial

Ilene R. Brenner, MD


January 18, 2011

In This Article

How to Protect Yourself

In fact, if you win ANY points in the first half, you are doing well. The best way to do this is by giving an unexpected answer to a seemingly simple question. For instance, if asked, "Isn't morphine a really strong medicine?", the assumption is that you will answer "yes," and that will lead to a series of questions that will probably conclude with a trap to make you look bad. Try not to agree so easily.

Don't be argumentative, but if you can find a logical reason to disagree, that will interrupt the plaintiff's attorney's train of thought and possibly disrupt the questioning.

Instead, if you say "no" then the attorney will have to stop and address this. Perhaps he or she will say, "When patients are in pain, isn't morphine one of the strongest medicines for pain?" You can again say "no" to this. Now the attorney is compelled to have you clarify your answer by means of a dangerous open-ended question, or he or she will ignore this line of investigation completely. Either outcome is very advantageous for the defendant.

Other states allow you to talk and talk and talk. This is a decided benefit for the defendant because you can avoid getting cornered and can explain your position more clearly. However, if you ramble on too long, you can lose the jury's attention. Given the above example, you could answer more than, "No, it isn't." You can add quickly, "There are much stronger medicines I use all the time, such as Dilaudid, Fentanyl, Nubain, and Stadol."

Tips to Help You If You Are on Trial

The best way to throw attorneys off their game is to say the one thing they never want to hear from a witness: another question. Find a portion of the question that is vague and, instead of answering, ask for clarification of that portion. While this technique can be effective, do not overuse it or you will seem obstructive.

If you are presented with a situation where vague or lengthy questions are asked, you can respond by asking for a rephrase of the question. For long-winded plaintiff's attorneys who like to talk a lot before asking you a question, be careful not to answer or it may seem that you agree with the statements that preceded the question.

In that case, let them make their 5-minute statement followed by their 2-minute question, then say, "Could you tell me the question again? I'm not sure what you asked." This will focus the question and possibly throw them off-track because they had all their thoughts arranged and you just disturbed that.

As in the deposition, you need to be careful about what you are answering. Don't answer questions that contain double negatives. Don't answer questions that begin with a statement. Don't answer 2-part questions. Most important, don't answer an unclear or vague question. You can ask the attorney to repeat or rephrase the question so you are better able to understand what is being asked.

You are your own best expert. If you can teach the jury something, they are more likely to trust your judgment and to find for the defense.

Even when discussing complicated medical terminology, use lay terms and language whenever possible. You want the jury to understand you. Juries know that experts and defendant physicians have lots of fancy degrees. They know that you are intelligent. The key is, who do they trust? Typically, they'll trust the person who was the most affable and understandable. Make that be you.


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