Google “medical malpractice defense” and you will find thousands of articles, advertisements, and opposing opinions for the physician embroiled in fighting a malpractice claim. Some say this, another says never apologize. One offers access to expert witnesses; another says not to use them. One says emotional support; others says don’t talk to anyone about it. Some want money for their advice and assistance; some don’t.
So what’s a doctor to do? How can you successfully prepare for your defense and a deposition?
There have been entire books written on this subject, and I do not purport to be an expert. However, as a provider of medical negligence insurance, I do have some experience in the subtleties that express the difference between winning and losing.
Today we will focus on demeanor and support. For the moment, we will operate under the assumption that the doctor is innocent, the insurance company has been notified, legal assistance activated, the records are in order – in other words, everything looks perfect for a solid defense.
One factor that can work against the defense is the doctor’s demeanor. Some have great, charismatic bedside manners. Some do not. Some seem to radiate an engaging personality of warmth, wit, charm, and sensitivity; Others have an aloofness about them.
Some are great conversationalists with excellent verbal skills. Some do not seem to have that trait.
Unfortunately, those who lack warmth are more likely to be sued. Patients are slow to file claims against doctors that they really “like”. These same doctors are also more likely to lose in court because of that fact. Exit polls have shown that juries are as heavily influenced during deliberations by how they feel about the defendant as by the facts of the case. Many plaintiff attorneys believe that the doctor’s personality plays as big a role as medical details and expert testimony.
If a claim has been filed against you, prior even to the deposition stage, seek out the advice of your attorneys, peers, family and friends on how to increase your “likeability” factor. You want to appear competent and confident without exuding any sense of arrogance or superiority. Some attorneys will even get out the video camera to help you improve your personality and presentation skills. And always avoid being goaded into anger or rage by the opposing attorneys.
Likewise, make sure you are fully prepared for the deposition. This is not only an investigative procedure, but it is an opportunity for the attorneys on both sides to take your measure and develop an appropriate strategy. The plaintiff’s attorney will be looking for ways to make you look bad in court while your attorney will be assessing the chances of prevailing at trial or to determine if pursuing a settlement is the better approach.