• Seating: The plaintiff is always seated closest to the jury.
• Jury Selection: During a procedure called voir dire questions are asked of the potential jury members to determine if there are any reasons the person should not serve, such as preconceived ideas against physicians or people who sue, friendship or business ties to a party or attorney or whether the plaintiff’s present condition would cause the juror to automatically want to to find for the plaintiff.
• Opening Statements: At this point, the attorneys present what they believe the evidence will be during trial. The plaintiff’s attorney goes first. The defendant’s attorney usually gives his opening statement immediately after the plaintiff’s. Opening statements are not a time for the attorney to argue the case but rather to make a statement of what they intend to prove during the trial.
• Plaintiff’s Case: The plaintiff always presents his case first. The plaintiff’s attorney calls his witnesses and experts to try to prove that the physician was negligent and that the negligence was the cause of the plaintiff’s injury. The plaintiff’s attorney may call the physician defendant and attempt to show that the physician did not follow the standard of care. The defendant’s attorney has the right to crossexamine any of the witnesses the plaintiff’s attorney calls to give evidence during the plaintiff’s case. After cross examination, the plaintiff’s attorney may again ask questions to rebut or rehabilitate the witness’s answers.
• Defendant’s Case: The physician’s attorney will present the physician’s case after the plaintiff has “rested” his case. At this point the physician’s attorney has the opportunity to allow the physician to tell his story. The physician’s experts will be called at this time as well as any other witnesses for the defense. The defendant physician will in essence teach the jury about the medical issues involved in the case. At this point in the case, the defense attorneys will present evidence explaining why the physician did not breach the Standard of Care, or the physician’s actions did not cause the injury.
• Rebuttal: After both sides have given their evidence, the plaintiff’s attorney may offer additional evidence to contradict specific portions of the defendant’s evidence.
• Closing Arguments: Generally, the plaintiff has the right to give his closing argument first and then after the defendant’s closing argument, may give rebuttal. The closing argument is the final statement or “summing up” of the case by each attorney to the jury. Each attorney will use persuasive arguments to show how he has established and proven the evidence of his case.
• Jury Instructions: Before the jury is sent to reach its verdict, the judge will instruct the jury as to the law which they are to apply to the case. This is called the reading of the charges. The jury will decide what happened or what the facts are, then apply the law to those facts, and determine the outcome of the case.
THE ROLE OF THE PHYSICIAN
• Be A Teacher: The physician, of course, is the primary player in the defense of a medical malpractice suit. The physician must take an active role as a teacher. The attorney must learn enough of the medical background and process is order to provide the best defense possible.
Most attorneys will need information on why the physician acted as he did. Once the physician and attorney agree on a defense strategy, the physician may need to research, review and provide as much documentation as possible from the existing medical periodicals, specialty journal articles, textbooks and studies in the particular field of medicine concerned. This is where the physician's attorney can help to guide the physician in formulating answers for questions that cannot be given in black and white terms. The physician also needs to be able to defend why he may chosen one course of treatment rather than another available under the circumstances. By providing this information, the attorney will be able to formulate not only the arguments he needs, but also identify the areas of expertise in the form of expert witnesses needed to rebut opposing arguments.
• Be Prepared to be Deposed: The physician will be deposed. It is important that his attorney prepare him for this. There are many ways to help prepare the physician for this action.
Following are some guidelines for physicians giving depositions:
Guidelines for Depositions:
1. Thou shalt not bear false witness. A physician who tells the truth can always be defended.
2. Understand the question. Attorneys are well known for asking confusing, compound questions. Sometimes they do not understand their own question, but hope the physician will. Ask them to repeat or rephrase a questions that does not make sense.
3. Answer the question that is asked but do not volunteer information that is not asked; you will open up new lines of questioning. It is important not only to give a truthful answer, but a complete one. Therefore, don’t hesitate to explain an answer if completeness requires it. Sometimes “yes” or “no” is just not enough. Be truthful; be complete...and then be quiet.
4. Take your time. This will help you to concentrate on listening to the question that is asked and to answer in a coherent, controlled fashion.
5. Stop talking when you have answered the question. After you have answered the question, the plaintiff’s attorney may stare at you, waiting for more. Do not fill the uncomfortable silence with volunteered, unnecessary information.
6. Prepare for your testimony. Your deposition will be taken down by the court reporter and prepared into a booklet. You will be cross-examined from that booklet at trial. The more you know about the case and particulars of the treatment, the better off you will appear in court. Above all else, follow your attorney’s advice in both preparation and the deposition. You are the medical expert, but the attorney is the legal expert.
7. Thou shall not argue. If you feel an attorney is arguing with you, your attorney should object.
8. Control your temper. Don’t be arrogant.
9. Minimize the use of medical jargon when you can and whenever possible, keep it simple.
10. You are ultimately in control of your own deposition. If you feel that you are losing your temper or cannot concentrate, ask to take a break and excuse yourself.
• Be Your Own Advocate: In addition to being concerned with your own deposition, you may want to be present at some or all of other depositions taken in preparation for your trial. Your attorney will report to you on the substance of all depositions that are taken.
Even though the purpose of the physician’s attorney is to be the physician’s advocate in the proceedings, the truth is that the physician shouldn’t rely solely on his attorneys; he needs to be his own active advocate. It is important that the physician look out for his own interests. The physician should get to know his insurance appointed attorney well and if he is not totally comfortable with this attorney should insist on having another attorney appointed to his case.
The physician should be actively involved in the trial as well. The physician should pay close attention to all prospective jurors and be involved in the jury selection process. The attorney J. B. Spencer (sometimes referred to as the “father of Florida medical malpractice litigation” is quoted as saying, “When you pick a good jury, the case is 90 percent won.” This indicates how important this process is to the outcome of the case. The physician should be totally attentive during the trial and keep the attorney properly informed when witnesses for the plaintiff either stray from the facts or from accepted medical practices.
• Consider Hiring Your Own Attorney: No one enjoys paying legal fees. However, the physician should consider engaging (at his own expense) the services of his own personal attorney for support, observation of court preparation and/or consultation during the trial, especially if there is a chance that the jury will return a verdict in excess of his policy limits. The attorney hired by your insurer usually will inform you if this is a possibility. The law recognizes that the interests of the physician and his own insurance carrier are not always the same and the physician may want to hire his own attorney to advise him of these issues. This can be particularly important in protecting the personal assets of the physician and his family.
• Be Sympathetic to the Jury in Court: The physician needs to make eye contact with the jury. He is in essence telling his story, or teaching them about the case. The jury needs to feel that the physician cares. His demeanor is very important. He needs to stay calm.
The proper professional appearance is important from the time you or your spouse arrives in the parking lot to the time you leave. Discuss issues of dress, transportation and the like with your attorney.
Typically, six or 12 jurors will hear a medical malpractice case. At all times, no matter what may be going on in the courtroom, one of them is looking at the physician and and forming opinions about that physician. Act accordingly.
COPING AT HOME
PHYSICIAN’S STRESS SYMPTOMS
If your spouse is sued, you must realize that the suit will have a tremendous emotional impact. Physicians are trained to use their personal knowledge and skills to care for and heal their patients. When a malpractice claim is filed, physicians may feel they are being attacked personally. A lawsuit may affect the way they feel about their patients, their competence and their confidence in making decisions. Self doubt and “what ifs” inevitably accompany and tragic outcomes.
The stress that occurs when a physicians is sued can cause emotional and behavioral changes, including:
• Anger at being sued;
• Frustration at the slow workings of the legal system and having to work within the framework of a system that is foreign to them. Physicians are used to being in charge and this is a situation out of their control;
• Fear about the loss of public and personal image, prestige in the medical community, financial security;
• Irritability and anxiety;
• Embarrassment and shame;
• Withdrawal from one’s family and social activities;
• Emotional distancing from patients and colleagues;
• Difficulty practicing medicine - Because a claim of malpractice affects confidence, concentration and even ability to make decisions, physicians may find it difficult to care for patients in their usual manner;
• Physician symptoms such as insomnia, fatigue, gastrointestinal symptoms, and headaches and/or sexual dysfunction;
• Excessive alcohol use or drug use.
This stress affects not just the physician but you and your family as well. Since the physician may feel shame and embarrassment because of the suit, it may be very difficult to discuss openly and may lead to family members denying feeling any effects from the situation. As a result, family members may feel very isolated. Your attorneys may advise you not to discuss the details of the case, leading to even greater feelings of isolation and depression.
What can you as the physician’s spouse do to alleviate this strain on your spouse and family? Some of the following ideas may be helpful to you:
✦ Be knowledgeable. Educate yourself about malpractice claims, legal proceedings and your options. The more you know, the more you’ll be able to help.
✦ Be supportive. Now, more than ever, your spouse needs the help of someone who believes in him. Be reassuring throughout the legal process.
✦ Communicate and encourage your spouse to communicate with you. It may not be easy for your spouse to talk about what’s happening. You need to encourage communication so that your stay in touch with each other’s concerns. At the appropriate time and place, ask questions about the case and initiate discussions about feelings and emotions.
✦ Talk to the family. Family members (including your children) may hear about the case from friends, especially if you live in a small town. Do not discuss the particulars of the case. Just tell them there is a legal matter in process and warn them if there may be publicity or negative reactions from others. When talking with other family members and/or friends, keep the discussion of the situation to a minimum. Your attorney will provide guidelines as to what may be said in public.
✦ Do not be afraid to tell your children that this is a serious matter and that Dad or Mom may not act as he or she normally would because of stress. Tell them that you expect a positive outcome, and that their own lives will be affected only minimally. Keep in mind that your spouse may not be the best person to talk with the children and family because of the emotional and selfesteem issues involved.
✦ Seek support for yourself. Just as your spouse feels anger, frustration, and depression, you may, too. The solution is the same for both of you. Talk to your peers - other physicians’ spouses, either informally or in groups. Contact the physician health program or the medical alliance, either locally or at the state level. You can be referred to an existing support group or a support group can be specifically developed for you with two or more other spouses who have gone through a law suit and have volunteered to be helpful. If there is no such group available for you, or if you prefer, consider speaking with a professional to help you deal with your feelings.
✦ Use caution in talking with patients. Follow your spouse’s attorney’s advice in this area because what you say can be used in court. When patients ask about the case, be positive but say as little as possible.
✦ Encourage your spouse to work with his or her attorney on the defense. They will need help to successfully defend the case and being involved may help to make the physician feel more in control and help to relieve stress.
✦ Participate in your spouse’s defense when possible. Your presence and support at the trial can be very helpful if your spouse and attorney agree you should attend. Keep in mind that your appearance and your demeanor can make an impression on the jury - how you look, what you wear, how you carry yourself. You want to be sure that you don’t attract attention to matters that are unrelated to the case.
✦ Seek psychiatric help immediately if your spouse’s symptoms of depression and anxiety are severe, especially if there is a risk of suicide.
Your emotional support and positive reassurance are vital to your spouse’s well-being throughout this situation. The impact of malpractice litigation on the physician is real and long lasting. Sharing the experience can help to alleviate the stress for you, your spouse and your family.
Part III in our next issue will be the final section of this article. It will provide additional information on the role of the physician’s spouse and how to cope with children’s fear. Article reprinted with permission by the authors.