Ways to Avoid Sabotaging Your Malpractice Defense

Mark Crane

Disclosures

July 05, 2017

In This Article

When Doctors Sabotage Their Own Defense

Overconfidence Can Be Your Downfall

Most physicians try hard to appear sympathetic and likeable. Unfortunately, there are others who come off as just the opposite.

In one case, a plaintiff's attorney asked a physician during a deposition why he'd performed a cesarean section. The doctor replied, "I don't think you're smart enough to understand my answer." The physician was pleased with himself for firing off an insult at the man who'd sued him and disparaged his reputation.

That remark, and a few others that dripped with contempt, effectively torpedoed the doctor's defense. The deposition was videotaped and would be shown to a jury. "Juries expect attorneys to be accusatory and sometimes nasty. They give them some leeway. But they expect different behavior from physicians in a case involving a patient whom they may have injured," said Mark Fogg, a veteran defense attorney and general counsel of COPIC Insurance Co., a malpractice carrier based in Colorado.

"The case was defensible," said Fogg. "The doctor's arrogance was so severe that we feared letting him get anywhere near a jury. We settled instead."

Arrogance is one of several deadly sins physicians make that could cause them to lose malpractice cases they might otherwise have won. Other big mistakes include avoiding a patient or his or her family after a poor result, sloppy documentation, lax procedures for tracking tests, failing to cooperate with attorneys and insurers, and overreliance on electronic medical records.

Malpractice lawyers and insurers love to trade war stories about doctors who sabotaged their cases by jousting with the plaintiff's attorney, making sarcastic, glib, and flippant comments. That's why they spend so much time preparing and coaching the doctor before testimony. Still, some doctors are their own worst enemies.

"I took a deposition from a physician who displayed no empathy whatsoever for his injured patient," said Armand Leone, MD, JD, a radiologist and plaintiff's attorney in Glen Rock, New Jersey. "His smugness was staggering."

"Doctors such as this infuriate plaintiffs' lawyers," he said. "I couldn't believe how callous he was. We feel that this is a defendant who needs to be taught a lesson. We're righting a moral wrong. I can't recall ever leaving a deposition with such ill will to the defendant."

Much of what is called "arrogance" is a defensive reaction by the doctor, who is thrown into a legal world that he or she has had no experience with, said Rick Boothman, chief risk officer at the University of Michigan Health System and a malpractice defense attorney. "It's insecurity that can come out as arrogance."

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