If you are able to identify the plaintiff’s experts before testimony is given, find out as much as possible about their medical reputations, especially any peer-reviewed articles they have written. Consider reviewing their previous testimony in similar cases; contradictions may surface that will help impeach their opinions.
Review the case records with your attorney and explain your treatment rationale. If alternatives were available, you will need to articulate why you chose the course you did.
The defense attorney’s responsibilities. You should be informed at all times about the litigation process, including your role, and its progress. Legal strategies should be explained and discussed in detail, and your appearance and credibility—as well as those of the experts for each side—should be evaluated. Previous similar cases in your community should be investigated. Your attorney should have a thorough understanding of your case, and you should be comfortable with his or her approach. With surgical cases, it is important that you take the time to educate your attorney about the technical aspects and limitations of the procedure in question.
Settlement
The possibility of settling the case should be considered and reconsidered as discovery progresses. Remember: Far more cases are settled than are tried in the courts. Issues that must be addressed include the cost of a trial (including your lost office time) and the risk of an unfavorable outcome if indicators suggest not only a plaintiff verdict but a substantial award. On the other hand, if your community tends to favor the physician in professional liability cases, the plaintiff’s attorney may be eager to make a reasonable settlement.
Like court decisions, settlements must be reported to the National Practitioner Data Bank. Make sure all the information this body will retain is accurate, and follow the proper procedures if you feel the report is incorrect or does not meet the reporting requirements. In some cases, you may be allowed to amend the report if the basic facts remain the same.
Take advantage of your attorney’s expertise when deciding whether or not to accept a settlement, especially in a questionable case. Be aware, however, that settling a clearly defensible case sets a bad precedent for the future. Be realistic and objective.
Discovery
Interrogatories. These are written answers that must be provided to a series of questions from the opposing attorney. Because these answers must be given under oath, they are admissible as evidence at a trial. Your lawyer should manage this discovery process with your close attention to the answers, which you will have to live with throughout the litigation. At times, there may be a request for admission of facts (a series of factual statements). Such an admission speeds the legal process if some or all of these facts are agreed upon, since there is no need to present evidence to prove them.
Deposition. This aspect of the discovery process may become more important than your appearance at trial. Although the formalities of the courtroom are absent, the statements made at the time of deposition are admissible. Because many depositions are recorded on videotape, it is important that you dress appropriately, with guidance from your attorney. The deposition is not a dry run! Your preparation for the case should be complete by this stage of the process.
This is your chance to show what you know about the events in question and to explain why your medical decisions were formed. Because the medical records will be on hand at the deposition, you must know their entire contents. Have the pertinent areas tabbed for quick review. When there is a confusing chain of events, prepare a clear storyboard that includes dates and times taken from the records. The use of demonstrative “visuals” may prove helpful.
Don’t rely on your experts to carry the ball regarding the standard of care. Start with ACOG’s educational bulletins as a platform for your medical conduct. The College’s committee opinions may provide added support. A Medline search of the subject is easy to obtain from most hospital libraries—but make it a point to read each pertinent article in its entirety, not just the abstract. Remember, a good plaintiff’s attorney spends a substantial amount of time on research before the claim is ever filed. Articles that do not support your actions will probably be in the plaintiff’s files, and you must be prepared to respond to them.
At the time of deposition, use the same demeanor you would use in the courtroom. If you become hostile during the deposition, the opposing attorney may expose the hostility before the jury by reading your deposition statements out loud. Your attorney should discuss this and other precautions with you prior to any testimony; listen and heed the advice.