Updated: May 18, 2020
If you are a medical malpractice defense attorney, have you ever wondered why your medical professional witnesses sometimes do the following in depositions or under cross-examination:
· Agree with things that aren’t true.
· Blame themselves for something they did not cause.
· Volunteer information when you instructed them not to.
· Agree with something you know they don't believe.
· Admit to breaching the standard of care when they did not do so.
· Keep trying to explain answers when no explanation is needed.
· Agree with the opposing lawyer’s characterizations of what the facts mean.
· Agree they should have done “more” to prevent an adverse outcome.
· Argue with opposing counsel.
· Act defensive.
· Acquiesce so easily.
· Look “guilty.”
· Admit they were negligent when they really weren't.
· Keep second-guessing or changing their answers, etc...
Why do Medical Professional Witnesses do These Things?
We all have a set of communication skills we use with friends, family and in our respective professions. When speaking with another, it’s important to know how to interpret and understand communication cues in various situations, which also includes knowing how to respond to the cues appropriately depending on the environment. Some examples of cues we receive from people we speak with include: tone of voice, facial expressions, body language, and emotional responses. Because the objectives of communicating in the various settings can differ, our feedback also differs in response.
This is especially poignant for medical professionals because their interactions with patients and their families require a special sensitivity and understanding due to the nature of the communication environment.
While medical professionals may have communication rules that work for them professionally, none of them has developed a set of communication skills and rules that work in the litigation setting – particularly under adverse questioning. So, what happens to the medical witness with no knowledge of litigation cues? They borrow the communication skills and rules that work for them professionally and they apply them to the litigation setting and they fail miserably. Why? Because cues and rules of communication in the litigation setting are not only different than in the medical world, they can mean the exact opposite and thus require a counterintuitive response.
How It Works
The tables below present some examples of types of communication cues medical professionals might encounter during the course of a communication interaction with a patient or his or her family member, or that a witness might encounter while under cross-examination. Note how the meaning of the same cues and the appropriate responses to those cues differ dramatically depending on whether the interactions occur in the medical world or the litigation world.
It’s easy to see how even the most sophisticated witness can unwittingly play into the hands of opposing counsel, simply by attempting to communicate like a normal and rational and caring medical professional.
Medical Professional Psychology and the Standard of Care
Further complicating things for medical professionals, is the fact that if asked, almost none of them would be able to define the “standard of care,” let alone what it means to breach the standard of care. Most medical professionals hold themselves to extremely high professional standards, almost perfection, which is a good thing since we’re talking about healthcare. So when presented with the standard of care concept in the legal setting, “perfect care” (or close to it) is their “standard of care” and thus THE standard of care. Therefore, anything less than “perfection” is a breach in the standard of care (a bad thing if you’re a medical malpractice attorney).
To make matters worse, when one of their patients has an unfavorable outcome, many medical professionals feel like something must have gone wrong (i.e., a standard of care was breached). They often second guess the care that they and others provided and the find themselves believing that “I could I have prevented this if I had only done “X.” And, since they didn’t do “X,” they must have breached the standard of care. Plaintiff’s attorneys know all of this, and they exploit it during depositions and cross-examinations at trial.
What Can be Done?
First, medical professionals must be taught the legal standard of care. This can be an uphill battle because the idea that meeting the legal standard of care means the care simply has to be reasonable under the circumstances, just doesn’t feel right to medical professionals. It feels like a mediocre standard. But, until this step is accomplished successfully, which means the medical professional not only accepts, but embraces the actual meaning of the standard of care, any other “witness preparation” efforts will be unfruitful.
Next, medical professionals need be taught how and why the communication objectives from the opposing lawyer are unlike anything they’ve ever experienced. This is a vital step to effective witness preparation and one that is often underappreciated and sometimes skipped completely.
For example, if not taught otherwise, witnesses will assume that the more information they provide to opposing counsel the better. They will think: “If I can just explain things more clearly, I can convince this lawyer of “X” and he will get it and move on.” The problem with this thinking is that witnesses don’t intuitively realize that the opposing lawyer will advocate for his client no matter what witnesses say. So, what might be a perfect answer to any given question will never “satisfy” the opposing lawyer, he will never change his mind, and explanations will only make things worse.
Compounding this misunderstanding is the fact that many of the cues the witnesses receive from opposing counsel suggest the opposite (more information will help), resulting in a futile attempt by witnesses to clear up the seeming miscommunication with more and lengthier explanations, which only gives opposing counsel more ammunition. This is a major challenge for medical professionals because many of them are helpers by nature and when they try to “help” in the litigation setting, things just continue to get worse, their anxiety and frustration increase, and the deposition becomes a catastrophe.
The good news is that medical professionals can be taught how to communicate effectively in the litigation world, but it takes a substantial amount of time due to the required drastic changes in thinking and behavior. And it goes even further. After teaching such witnesses how to communicate under adverse questioning, you must never believe a witness who says, “I get it,” or “I understand.” Real understanding only comes after doing. Thus, one of the most important components of a proper witness preparation session must include having the witness perform under a rigorous and realistic Q/A simulation with targeted feedback. Done right, even the most challenging medical professional witnesses can avoid some of the major snares of deposition and cross-examination testimony and not only survive adverse questioning but thrive.
Jeff Dougherty, M.S.
President - Litigation IQ
713 392 8135