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There’s a Fine Line Between Aggressive Questioning of a Witness and Being an A-Hole

12/16/16 11:00 AM

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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Posted by Medical Justice | in Blog | 8 Comments »
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Joseph Horton
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Joseph Horton

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.

James
Guest
James

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?

Michael M. Rosenblatt, DPM
Guest
Michael M. Rosenblatt, DPM

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… Read more »

drjosh
Guest

Humble, respectful thanks!
Best wishes for safe, enjoyable Holidays.
All the best in 2017.

retiredMD
Guest
retiredMD

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… Read more »

retiredMD
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retiredMD

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… Read more »

Michael M. Rosenblatt, DPM
Guest
Michael M. Rosenblatt, DPM

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… Read more »

scott kasden, MD
Guest
scott kasden, MD

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