The vast majority of doctors wake up every morning intending to do the best possible job for their patients. It’s in our DNA. If and when a patient experiences a complication, no one beats us up harder than we do ourselves. It gnaws at us. We’ll remember it. We hope never to repeat that outcome.
If a bad outcome turns into litigation, expect to be deposed. Or testify at trial. Being deposed or testifying in court is stressful. The plaintiff’s attorney will be a zealous advocate for his client. His job is to demonstrate that you owed the patient a duty of care, you breached the standard of care, and that breach caused an injury. That injury needs to be compensated.
In a sad case in Pennsylvania[1], Dr. Antosh Mirra took care of a patient who delivered a healthy, but premature baby. Unfortunately, the mother died from multi-system failure; presumably from pre-eclampsia.
The plaintiff’s attorney questioned Dr. Mirra. He claimed that Dr. Mirra “ignored repeated warning signs and allowed [the patient’s] urinary tract infection to run rampant, causing organ failure.”
The attorney got Dr. Mirra to acknowledge that while she delivered appropriate clinical care, she had not fully reviewed the patient’s medical history. And such a review would have revealed a history of antibiotic-resistant infections. Dr. Mirra also admitted she prescribed amoxicillin to treat a previous infection but did not order a urine culture to determine whether the urine was later free of bacteria.
Following that admission, the attorney asked: “Are you playing Russian roulette with my client’s life?”
That comment caused Dr. Mirro to sob uncontrollably on the stand. The judge called a recess. The judge reprimanded the plaintiff’s attorney stating the question implied a motive, was inappropriate, and unsettled at least one jury member.
The judge noted “There was at no point a conscious effort [on the part of the doctor] to inflict harm on the patient.”
He then ordered a mistrial.
Such inflammatory language should properly be shunned from courtrooms. Unfortunately, Dr. Mirra will have to experience yet another trial.
What do you think?
[1] Halpin J. Mistrial declared after doctor breaks down on stand in medical malpractice trial. The Citizens’ Voice. October 7, 2016. http://citizensvoice.com/news/mistrial-declared-after-doctor-breaks-down-on-stand-in-medical-malpractice-trial-1.2101045 Accessed November 21, 2016.
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Who was the plaintiff’s attorney? The only time I was sued and not dismissed was in Pa–about 10 years ago. And this sounds like it could have come from the same guy.
Was it Jim Ronca? As I saw it, he crossed the line more times than I could count.
What happens if an attorney asks a question that the person being deposed feels is irrelevant or inappropriate. Can one simply refuse to answer the question during a deposition? What would happen in such a situation?
In answer to James’ question, in a trial, the Court can order you to answer a question asked of you. You can refuse to answer if you wish, but there is a possibility that the court will declare you “in contempt.” If the court finds you in-contempt, there are several potential outcomes, which include the court levying fines against you and in extreme cases, imprisonment.
In a deposition there is no presiding judge, so in theory, there is nobody to hold you in contempt. However, your refusal to answer will go into the record. The main issue here is that plaintiff’s attorney will become “aware” of your weak-points, and a refusal to answer is definitely identifying a “weakness” in your case. That’s one of the “purposes” of a deposition…to find your weaknesses, which can be exploited during the trial.
Most deposition experts will advise you to always answer the question, even if embarrassing or painful. However, you always have the option of asking it to be repeated, if necessary, several times. This gives you time to “think.”
It is always OK to “not understand” the question. A big mistake made by inexperienced witnesses is to try to “identify” what you think opposing counsel is trying to get answered. That is always a mistake. You should only answer the question and never add anything to it. It is always better to say less than more. Some physician witnesses have a tendency to pontificate. This is always a mistake.
In actual practice, even experienced plaintiff’s attorneys who are not doctors are not medically trained. They may know a lot about your case, (and its potential defects) but they are still not doctors. It is always a mistake to try to :”educate” plaintiff’s attorneys during a deposition. The less they know, the better.
I feel badly for the doctor who had this asshole attorney be a bully in court. The resultant mistrial was the right action. I also blame her own counsel for not preparing her adequately for truly nasty questions. Had she been better prepared, she would have had an answer ready for him. That’s what experienced defense attorneys do…They prepare their clients. Often the preparation process is painful and depressing. It’s supposed to be.
Please note: I am not an attorney. Any “advice” I give concerning legal issues might very well be wrong.
Michael M. Rosenblatt, DPM
Humble, respectful thanks!
Best wishes for safe, enjoyable Holidays.
All the best in 2017.
Michael as usual gives great advice.
To answer James question, if a physician is being deposed in a malpractice case (again a deposition not at trial), his attorney will be there to stop inappropriate questions. The defense attorney will object. The objection will be noted and the defense attorney’s objection should inform the physician’s answer. This is why physicians should let the plaintiff attorney complete the question, take two breaths to compose an answer and give his defense counsel a chance to object. The physician may still be required to answer but he will at least know that his attorney thinks it is a bad or problematic question.
In a civil case like a disability deposition there will be opposing counsel for the affected parties and the physician is there as an expert witness, and must understand enough to stay out of legal troubles, ie. getting tripped up by his own testimony.
A physician cannot refuse to answer a question. But a physician can say that he doesn’t have the necessary expertise to answer a question, such as something that is outside of his field. He can say he doesn’t understand a question. Attorneys can pose questions that are so convoluted no one would understand them. IF the question doesn’t make sense keep saying you do not understand until the attorney formulates the question in a way that is understandable..but don’t help him out to suggest what he means. You should let him clarify for you, not you clarify for him. Also short answers are always best when giving answers at trial or at a deposition.
Attorneys who are bullies in court are not that common. Their behavior in a deposition will be very different than their behavior in court where they are staging an act for the jury, with theatrics. Most attorneys will treat physicians with respect understanding that they made a mistake and getting them to admit it. However if the physician lies or does things that make the attorney mad they can become hostile and the respect goes out the window.
In disability depositions most attorneys were respectful. However one in particular was nasty and condescending from the beginning. He wanted to ask the same question 5 times, got the same answer and was not happy with the answer. In court the judge would give the attorney some leeway but eventually say “asked and answered counselor, move on”.
For depositions and court testimony attorneys that are litigators and spend most of their time in court (as opposed to most attorneys that never set foot inside a courtroom) they look at it as blood sport that they live for and prepare carefully for. At least most attorneys prepare well.
I have heard of some malpractice defense attorneys who do a terrible job and are ill prepared to defend their client. But even if the malpractice insurance company is paying for the attorney you still have the right to select the attorney that you want from the area. They should be well experienced as defense attorneys for the malpractice insurance company to accept paying for them.
It is patently ridiculous for a DPM to comment about eclampsia vs. post-partum death from bacteremia and septic shock. Yet it appears that this (argument) is the very crux of this case. There should have been experts hired to “defend” eclampsia in this case, if it was indeed supported by the autopsy.
The obstetrician treated the patient with pre-partum antibiotics. She should have done the research necessary to at least “defend” her treatment, even if she didn’t review the chart just prior to birth. Then there is the issue of “timing.” Sometimes obstetricians are called to a childbirth with very little time for pre-partum evaluation. It happens. Clean-catch urinary specimens (for females) with gram stains are not always so easy to obtain in a short time-period.
If a podiatrist can “come-up” with a defense, it is absurd to think that a board certified obstetrician couldn’t at least come up with more. Then there is the issue of her “breaking down.” We may offer her sympathy and understanding. I can assure you her insurer will not. They already regard her as an extreme liability on the stand.
She needs to “toughen up” and accept the requirement that she testify in court. It goes with the territory. A peer review against her might very well be in process now, even as I type this. Her career is definitely at risk.
(Note with special thanks to Retired physician for generous comments).
Michael M. Rosenblatt, DPM
It is the legal system, not the justice system.
Be prepared for this and worse throughout the whole process. Be calm, don’t let them get under your skin. Be doctor like, likable, bite your lip when you want the kill him, take you time, and it will be over.
It is never fair-ever.
sek