Darryl Weiman, M.D., J.D.

Standards and Ethics Committee of the Eastern Cardiothoracic Surgical Society

Ben Franklin said,

“Honesty is the best policy.” When you are under oath, it is the only policy.

During a surgeon’s career, it is likely that he will have to deal with a medical malpractice suit either as a defendant or as an expert witness. In fact, a cardiothoracic surgeon in Tennessee will be named as a defendant, on average, once every three years. During the legal process that will follow, testifying under oath, either at a deposition or at trial, may be required.

Any party in a malpractice action is allowed to take the sworn testimony of any witness, opposing party, or expert expected to be used at the trial by the opposition. This testimony will occur at a deposition. At the deposition, the witness will be put under oath, usually by the court reporter who will also write a word for word transcript of the testimony. There is no judge present at the deposition so any objections will have to be ruled on later. Usually, the objecting attorney will place the objection into the record and then the witness will be allowed to answer the question. If the objection is later sustained, the answer will not be allowed to be used at the trial.

Some depositions are video recorded and that video may be played for the jury if the witness is not able to attend the subsequent trial. This may be more effective than just having someone read the transcript to the jury. The jury can actually see the witness, evaluate his demeanor, the tone of voice and get a sense of the timing of the answers to better judge the witness’s credibility.

As a discovery tool, the deposition will be useful in gathering information that may be sought at trial, and box the witness in as to what they can then say at trial. It is common for the opposing attorney to close his questioning by asking the witness if there are any other issues he will be testifying to at trial. If the witness says “no” then he will not be allowed to bring up new issues at the trial unless the opposing attorney “opens the door” to new testimony by asking a question that he probably should not have asked that was beyond the scope of the deposition testimony.

There is a great deal of strategy that goes into taking and defending depositions. Many experienced attorneys will get right to the heart of the matter and ask as few questions as possible to get the information they need to support their case. This “short and sweet” approach is likely since the witness, if it is the expert witness of the opposition, must be paid by the

deposing attorney’s side. Also, they don’t want to waste time seeking answers that will not make a difference as to the outcome of the cause of action.

Some attorneys try to wear the witness out in hopes that he will make a mistake as he gets tired. You should be able to figure out the strategy being used but answering truthfully is still required. If the opposing attorney can show that you are lying, your credibility will be destroyed, and you will probably be punished by the court.

Besides answering truthfully, there are other things to keep in mind while testifying. Always be professional and polite. Testifying is stressful but you must maintain your cool and answer to the best of your ability. The judge and jury (if you go to trial), know that you are stressed and they will respect you more if they see you are being courteous—even to your adversary. Dress appropriately and be on time. Do not try to be funny or sarcastic with opposing counsel. Every word you say is recorded by the court reporter and if your testimony will be read back at trial, you want to be sure that your words were appropriate.

If you are asked a question and you don’t remember the answer, it is alright to say you “don’t remember” or “don’t recall.” It is rare for a person to recall what they were thinking at a particular time many years ago. It is also not a good idea to guess what you might have been thinking. The opposing attorney may ask you to review the medical record and then ask if that may have refreshed your memory so that you could now try to answer his question. It is unlikely that the chart review will allow you to remember what you were thinking back then so you may want to point out that a review of the chart won’t be enough to recreate the thought pattern you might have had during that time.

The opposing attorney may persist and present you with a hypothetical patient that is like the plaintiff and then ask your opinions as to diagnosis and treatment. As a physician, it is fair to point out that the presence of the patient—one that you can talk to and examine—is critical to making a diagnosis and treatment plan and without such patient, you are reluctant to answer based on limited knowledge.

If your case involves a missed diagnosis which led to harm to the patient, some attorneys will persist in trying to get you to admit to a mistake. They will do this by posing a theoretical question dealing with the signs and symptoms of the plaintiff and ask for a differential diagnosis. For example, let’s say the patient had an aortic dissection and the diagnosis was not made until he was already dead. The attorney may ask for a differential diagnosis for a patient who presents with substernal chest pain, shortness of breath, and tachycardia.

Faced with this scenario, the inclination is to say, “it could be an aortic dissection.” This is especially true because you know that this is what the plaintiff had. It would be truthful and better for your case if you do not jump ahead. Provide the attorney with a list of conditions which meet the proposed criteria so that the judge and jury can see that the case is not as simple as the plaintiff attorney is trying to portray. In this example, the list could include myocardial

infarction, pulmonary embolus, aortic dissection, pneumonia, pancreatitis, a duodenal or gastric ulcer with perforation, costochondritis, and perhaps a sternal or rib fracture, etc.

Do not start offering opinions without examining the theoretical patient. Do not let the opposing attorney force you to make suppositions as to what the patient might have had since you are only being given limited information which was not the situation when you were taking care of the patient.

It is wise to only answer the question you’ve been asked. Many defendants feel the need to give a long, detailed explanation that goes beyond the scope of the question. Their goal is to educate the attorney as to their thought process and make him realize that they were thoughtful and reasonable. This is unlikely to happen and may even hurt your case. The more information you provide to plaintiff’s attorney will just give him more material with which to ask questions.

If you are asked a “yes” or “no” question, you don’t need to provide explanations. For example, if you are asked if you remember seeing the patient on a particular day when there is no note by you or a member of your team, then “no” is the answer. If you say, “No, but it could have been one or two times and I just didn’t document it,” you will be opening yourself up to another line of questioning dealing with your documentation habits. Do not volunteer information.

Your lawyer may advise you to use medical terms in your answer to force the opposing attorney to look to you for help. This may be risky. Instead, it would be best to answer in a way that would be understandable to a member of the jury. Remember, your testimony may be read to the jury at trial. The jury would appreciate it if they perceived that you are not talking down to them.

Some opposing attorneys may be threatening and try to coerce you into providing them with more favorable testimony. If you are telling the truth, you should not be intimidated.

Remember, as a physician, you will be more knowledgeable about patient care than any attorney. Use your knowledge, education, training, experience, and skills to your advantage.