The Role of the Defendant Physician in a Malpractice Trial

A successful defense in any malpractice trial requires a team effort with full assistance and cooperation by and between the physician and attorney. At trial, the attendance of the physician on a daily basis is perhaps the single most important role that physician fulfills during trial, even if such attendance may impact the physician's patients and the practice. Why is it so important? While, theoretically, trials are searches for the truth, that truth is, in reality, based upon the jurors' perception of the truth. Therefore, the trial itself is, in effect, a drama played out for the benefit of the jurors, sending them direct and overt messages as well as more subtle ones. The attendance, or absence, of the defending physician sends an important message to them.

Jurors recognize and appreciate the nature of heath care today, and the necessity that the physician be in the office to see patients. Thus, the physician's presence in the courtroom tends to send a message to the jury that the physician is treating the trial as an important matter. Because the physician is treating the matter seriously, the jury may also take this as an affirmation that the role they play, in turn, is an important one that is respected by the physician.

In a malpractice case, the plaintiff will offer proof to the jury through evidence, display and/or testimony on the extent of his or her injuries. The physician's presence can serve to counter this emotional, sympathetic appeal by permitting the jurors to observe the physician's demeanor and reactions to such offerings.

In a typical malpractice case, the plaintiff is permitted to call the defendant physician as a witness and frequently does. Moreover, the defendant physician is often called as the first witness by the plaintiff and is asked very limited, narrow questions calling for yes and no answers without giving the physician an opportunity to explain and expand upon those answers. Thus, the jurors' first impression is of a physician simply responding yes or no to questions from plaintiff counsel. That impression can be negative, but may be counteracted both by the physician's presence in the courtroom and the jurors' observation of him or her. In addition, on occasion the defense will recall the physician to the stand to testify after the entirety of the plaintiff's proof has been presented, including that of expert witnesses. By that time, the physician will have a better familiarity with the judge, jurors and courtroom process and can use this comfort-level and knowledge of the audience to offer stronger, more persuasive testimony for the defense.

Apart from providing a focus for the jurors, the presence at trial of the defendant physician also serves several other purposes. First, the physician becomes a "second set of eyes" for the attorney, able to observe the jurors' reactions to particular aspects of the case and to communicate these observations to the attorney. Moreover, the physician's perception of the jurors' reactions and acceptance or rejection of aspects of the case can play a
significant role in deciding how next to proceed, and whether strategies in place should be altered to meet the unfolding courtroom events.

Second, no matter how much an attorney prepares and studies medicine by, for example, consulting experts or through independent research, attorneys do not practice medicine. Therefore, when an expert witness is on the stand testifying for a plaintiff against a physician, the physician serves as an invaluable resource for the attorney for clarification and information concerning the accuracy or truth of such statements, which the attorney can then use to construct questions for the cross-examination of that expert witness.

While a trial is designed to be a search for the truth, the truth it finds is the truth that the jury finds. Both direct, obvious and subtle events throughout the course of the trial have significant impact upon the jury's perspective, which ultimately leads them to the decisions they make. It is only by working together during the trial to control these perceptions that the attorney and physician have the best chance of success at the conclusion of the trial.

For more information on topics contained in this article, please contact Steven I. Milligram at 845-565-1100, ext. 303 or e-mail him at smilligram@tclmm.com November 2004 - This Article is for information and discussion purposes only. It does not constitute the rendering of legal advice or opinion and is summary in nature. For further information, please contact us at (845) 565-1100.

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