Andrew K. Worek, Esq.

Mr. Worek reports no financial relationships relevant to this article.

You survived the deposition: Your attorney advised you that it went well and that nothing you said was catastrophically harmful to the defense of your case. Now it’s time to move on to trial.

A date has been set, and you’re anticipating it with a fair dose of trepidation. You may find yourself pacing nervously along the marble corridors of the courthouse or staring with foreboding at the witness stand, with its solitary chair and microphone. Rest assured: There is much to be done to navigate your way through the trial process.

In this article—a follow-up to “Strategies for the hot seat: Giving a successful deposition” (February 2012)—I offer 10 tips for getting through a medical malpractice trial.

1 Preparation is critical

How do you get to Carnegie Hall? You’ve heard the joke.

Preparation is absolutely critical. You are going to have six to 14 jurors, a judge, defense counsel, opposing counsel, the plaintiff, and a small audience watching your every move and hanging on every word, but there’s no need to be nervous if you have prepared.

That said, be informed that hours upon hours of discussion and review of the care rendered with your attorney may be necessary to ensure that you understand medical and legal issues and can address both with confidence.

Any hesitation or poorly chosen phrase can have a detrimental effect on your case. Review every aspect of your testimony, the exhibits you plan to use, and the questions likely to be asked by your own attorney and opposing counsel—and do so repeatedly. You should expect to spend several days immediately before trial in your lawyer’s office going over every detail, so clear your schedule.

Don’t stop until you are familiar with every aspect of your testimony and the facts. Anything less may cause you to appear un-prepared, confused, or, worse—incompetent.

2 Put on your educator’s cap

Now is the time to teach.

During your deposition, you concentrated on simply answering the question that was posed in the manner in which it was asked, and you tried to avoid educating opposing counsel. A trial is different—you have a panel of jurors who are eager to hear your side of the story. These are the people who will decide your fate. Now is the time to teach.

I was once told—and I truly believe—that most jurors understand science and medicine at the high school level. Of course, some jurors will have greater understanding, and some less. Teach the jury the reasons behind your medical decisions and explain why they were correct. A teaching approach—as opposed to monotone answers—will help hold the jury’s attention and address its inquisitiveness.

Work with your attorney to develop appropriate explanations of medical terms, diagnoses, and treatments at issue in the case.

3 Face the jury

We typically look at the person to whom we are speaking. In the courtroom, this tendency translates into a focus on the lawyer who is doing the questioning rather than the jury. In the big picture, however, you are testifying to the jury, not the attorney—so look at the jurors when you speak.

Your attorney may position himself (or herself) near the jury so that your gaze encompasses both him and the panel. However, even if the attorney asking questions is not near the jury, turn toward the jury when you answer.

It may help to turn your chair to angle slightly toward the jury when you take the witness stand to make yourself more comfortable and avoid appearing as though your head is on a swivel. Doing so will also help you face the jury more squarely and directly.

Look into the faces and eyes of the jury when you answer questions. Speak to them, not at them.

4 Be yourself

When you are preparing for trial with your attorney, review the answers you expect to give to various questions. Work on delivering those responses in your own words, the way you would present them to a patient or a peer. A jury can detect sincerity and its opposite—glibness.

You and your counsel may agree on the information or points to be disclosed in response to a certain question, but on the witness stand, you will have to respond with your own voice and vocabulary.

5 Prepare to be cross-examined

Most jurisdictions permit opposing counsel to call a defendant physician to the witness stand, “as if on cross-examination.” This means that the opposing attorney can ask you leading questions in an attempt to box you into “Yes” or “No” responses with little or no opportunity to explain. This is customary. You must be prepared to face heated examination.

A trial is an adversarial process, based on the general premise that, through heated exchanges and questioning, the truth will emerge. Opposing counsel will attempt to get you to answer questions based on the plaintiff’s view of the case. Most physicians find having their answers constrained in this manner to be very frustrating.

Work with your attorney until you are ready to answer even the toughest and narrowest of “Yes” or “No” questions. If a question cannot be answered reliably with a “Yes” or “No,” be prepared to point that fact out to the questioning attorney or the judge. Also be prepared to provide an explanation beyond “Yes” or “No” when it may be appropriate. The judge will ultimately decide whether an explanation is warranted; many judges permit elaboration.

Your own attorney will later have the opportunity to question you, as well. If you are not permitted to give an explanation during questioning by opposing counsel, your own attorney can afford you that opportunity. An opposing attorney who insists that a physician not explain runs the risk of diverting the jury’s focus to the unstated explanation rather than to the actual “Yes” or “No” response. Indicate when you would like to explain an answer, and retain your composure if refused.

When opposing counsel has finished questioning you, your own skillful defense attorney can rise from his chair and ask, “Doctor, what is it that you wanted to explain to the ladies and gentlemen of the jury?” Then, like the late radio commentator Paul Harvey, you can provide “the rest of the story.”

As you did during your deposition, you have the right to ask for clarification of a confusing or unintelligible question. The same is true for a question in which a medical principle or condition is improperly characterized or defined. If a question doesn’t make sense, ask for clarification. If the question is inaccurate, advise the opposing attorney of the improper characterization, and ask that he rephrase the question. On occasion, it may be best to respond to a mischaracterization of a medical principle by answering: “That’s not how it works.” By declining to offer more information, you can create a moment of uncomfortable silence while opposing counsel collects his thoughts and regroups.

6 Emulate a weather forecaster

Work with your attorney to find aspects of your testimony that will permit you to get off the witness stand and present a chart or graph or other evidence from a standing position before the jury. Think of how much more interesting a weather forecaster is than an anchor who sits behind a desk reading news. Lengthy testimony from the witness stand is boring for the jury and can be tiring for the witness. Get off the stand once or twice to illustrate a point or demonstrate, for example, how the McRoberts maneuver is accomplished. It will keep the jury focused and interested.

When you stand before the jury to illustrate a point, make sure every juror can see your presentation. Your attorney may also request that a photograph or other exhibit be “published” to the jury so that the panel members can pass it among themselves and examine it with their own hands.

7 Be on your best behavior

Jurors are curious. They are being asked to, quite literally, pass judgment on you, despite knowing next to nothing about you. Jurors typically take their duties very seriously and will naturally be motivated to analyze non-verbal as well as verbal cues in an effort to learn more about you. Be prepared: They will watch your every move and mannerism in the courtroom, so be conscious of your clothing, mannerisms, and behavior. This holds true in the hallways of the courthouse and any location within two or three blocks. It is not uncommon to encounter a juror a block or two away from a courthouse in a major city, or to see a juror in a nearby coffee shop.

8 Control your reactions to testimony

It may be difficult to sit and listen as opposing counsel presents his opening argument to the jury. It may be a challenge to listen to the plaintiff’s case during the first 2 or 3 days of the trial. The plaintiff goes first; you have to wait your turn.

Overt facial reactions to testimony are best avoided. Although it may be helpful for you to make notes during testimony, try not to pass or slide them across the table to your attorney, except for rare occasions. There will be periodic breaks in the testimony, during which you can discuss your notes with your attorney. Frantically jotting down notes and sliding them over to your attorney may cause the jury to conclude that you are overly emotional or lack confidence in your attorney.

9 Test the gadgets

If you are going to present an exhibit, such as a chart or graph, make absolutely certain that it is accurate. Any error will be noted by opposing counsel and may impair your credibility. Also consider whether the chart or diagram could be reinterpreted to support your opponent’s case. If it could, don’t use it.

High-tech gizmos were once frowned upon by old-school defense attorneys. Now, we’re well past the MTV generation, and high-tech illustrations and animations are common in courtrooms. Be careful to avoid any high-tech malfunctions, however, which can distract the jury during presentation of your evidence.

If you are planning to use a demonstrative exhibit such as a heart-rate monitor or portable pulse oximetry device, make sure the batteries are charged and that it works. Practice any maneuver you plan to perform using the device or machine. You don’t want to appear clumsy or unfamiliar with the device. If any demonstration involves a sharp or needle, use an abundance of caution! In a birth injury case, baby mannequins are sometimes used. Make sure they work as intended and don’t permit anyone to “play” with them in the courtroom during breaks in the case. Trial is a serious matter; any levity observed by a juror could leave a detrimental impression.

Over my career, I have seen 1) an orthopedic surgery expert drop several “easy to assemble” metal components, creating a cacophony of pings and clangs as they bounced across the marble floor; 2) a surgeon staple his own palm with an “empty” laparoscopic staple gun; and 3) a medical expert miss a step getting off the witness stand, causing him to tumble into the jury box, strike his head and render himself nearly unconscious. This last incident led to the cancellation of the afternoon court session.

10 Take your time— and a little water

It’s helpful to visit the courtroom with your attorney some time before the trial date to dispel the jitters that can arise in an unfamiliar place. Also take a moment to sit in the witness stand so that you can have some level of comfort when testifying and understand how well, or poorly, the jury will be able to see you (and vice versa).

During the trial, take your time when answering questions. You may want to speak slightly more slowly than normal so that all the jurors can hear and appreciate what you’re saying. The tempo and volume of your testimony may also need to be adjusted, depending on the acoustics of the courtroom, which can vary widely, particularly in some of the more majestic and ornate venues.

Most courtrooms offer water pitchers and cups. Take a half-cup of water with you to the stand. A full cup is easy to spill—and creates a mess when it does. Courtrooms are not known for having an ample supply of paper towels.

Your confident presence can humanize the courtroom

The trial of a medical malpractice case is a difficult and emotional experience for any physician. Preparing to testify with confidence and precision is an important step toward a successful defense. The courtroom is an unfamiliar, uncomfortable, and adversarial environment. With appropriate preparation, however, the daunting specter of the witness stand can be conquered.

We want to hear from you! Tell us what you think.

Mr. Worek reports no financial relationships relevant to this article.

You survived the deposition: Your attorney advised you that it went well and that nothing you said was catastrophically harmful to the defense of your case. Now it’s time to move on to trial.

A date has been set, and you’re anticipating it with a fair dose of trepidation. You may find yourself pacing nervously along the marble corridors of the courthouse or staring with foreboding at the witness stand, with its solitary chair and microphone. Rest assured: There is much to be done to navigate your way through the trial process.

In this article—a follow-up to “Strategies for the hot seat: Giving a successful deposition” (February 2012)—I offer 10 tips for getting through a medical malpractice trial.

1 Preparation is critical

How do you get to Carnegie Hall? You’ve heard the joke.

Preparation is absolutely critical. You are going to have six to 14 jurors, a judge, defense counsel, opposing counsel, the plaintiff, and a small audience watching your every move and hanging on every word, but there’s no need to be nervous if you have prepared.

That said, be informed that hours upon hours of discussion and review of the care rendered with your attorney may be necessary to ensure that you understand medical and legal issues and can address both with confidence.

Any hesitation or poorly chosen phrase can have a detrimental effect on your case. Review every aspect of your testimony, the exhibits you plan to use, and the questions likely to be asked by your own attorney and opposing counsel—and do so repeatedly. You should expect to spend several days immediately before trial in your lawyer’s office going over every detail, so clear your schedule.

Don’t stop until you are familiar with every aspect of your testimony and the facts. Anything less may cause you to appear un-prepared, confused, or, worse—incompetent.

2 Put on your educator’s cap

Now is the time to teach.

During your deposition, you concentrated on simply answering the question that was posed in the manner in which it was asked, and you tried to avoid educating opposing counsel. A trial is different—you have a panel of jurors who are eager to hear your side of the story. These are the people who will decide your fate. Now is the time to teach.

I was once told—and I truly believe—that most jurors understand science and medicine at the high school level. Of course, some jurors will have greater understanding, and some less. Teach the jury the reasons behind your medical decisions and explain why they were correct. A teaching approach—as opposed to monotone answers—will help hold the jury’s attention and address its inquisitiveness.

Work with your attorney to develop appropriate explanations of medical terms, diagnoses, and treatments at issue in the case.

3 Face the jury

We typically look at the person to whom we are speaking. In the courtroom, this tendency translates into a focus on the lawyer who is doing the questioning rather than the jury. In the big picture, however, you are testifying to the jury, not the attorney—so look at the jurors when you speak.

Your attorney may position himself (or herself) near the jury so that your gaze encompasses both him and the panel. However, even if the attorney asking questions is not near the jury, turn toward the jury when you answer.

It may help to turn your chair to angle slightly toward the jury when you take the witness stand to make yourself more comfortable and avoid appearing as though your head is on a swivel. Doing so will also help you face the jury more squarely and directly.

Look into the faces and eyes of the jury when you answer questions. Speak to them, not at them.

4 Be yourself

When you are preparing for trial with your attorney, review the answers you expect to give to various questions. Work on delivering those responses in your own words, the way you would present them to a patient or a peer. A jury can detect sincerity and its opposite—glibness.

You and your counsel may agree on the information or points to be disclosed in response to a certain question, but on the witness stand, you will have to respond with your own voice and vocabulary.

5 Prepare to be cross-examined

Most jurisdictions permit opposing counsel to call a defendant physician to the witness stand, “as if on cross-examination.” This means that the opposing attorney can ask you leading questions in an attempt to box you into “Yes” or “No” responses with little or no opportunity to explain. This is customary. You must be prepared to face heated examination.

A trial is an adversarial process, based on the general premise that, through heated exchanges and questioning, the truth will emerge. Opposing counsel will attempt to get you to answer questions based on the plaintiff’s view of the case. Most physicians find having their answers constrained in this manner to be very frustrating.

Work with your attorney until you are ready to answer even the toughest and narrowest of “Yes” or “No” questions. If a question cannot be answered reliably with a “Yes” or “No,” be prepared to point that fact out to the questioning attorney or the judge. Also be prepared to provide an explanation beyond “Yes” or “No” when it may be appropriate. The judge will ultimately decide whether an explanation is warranted; many judges permit elaboration.

Your own attorney will later have the opportunity to question you, as well. If you are not permitted to give an explanation during questioning by opposing counsel, your own attorney can afford you that opportunity. An opposing attorney who insists that a physician not explain runs the risk of diverting the jury’s focus to the unstated explanation rather than to the actual “Yes” or “No” response. Indicate when you would like to explain an answer, and retain your composure if refused.

When opposing counsel has finished questioning you, your own skillful defense attorney can rise from his chair and ask, “Doctor, what is it that you wanted to explain to the ladies and gentlemen of the jury?” Then, like the late radio commentator Paul Harvey, you can provide “the rest of the story.”

As you did during your deposition, you have the right to ask for clarification of a confusing or unintelligible question. The same is true for a question in which a medical principle or condition is improperly characterized or defined. If a question doesn’t make sense, ask for clarification. If the question is inaccurate, advise the opposing attorney of the improper characterization, and ask that he rephrase the question. On occasion, it may be best to respond to a mischaracterization of a medical principle by answering: “That’s not how it works.” By declining to offer more information, you can create a moment of uncomfortable silence while opposing counsel collects his thoughts and regroups.

6 Emulate a weather forecaster

Work with your attorney to find aspects of your testimony that will permit you to get off the witness stand and present a chart or graph or other evidence from a standing position before the jury. Think of how much more interesting a weather forecaster is than an anchor who sits behind a desk reading news. Lengthy testimony from the witness stand is boring for the jury and can be tiring for the witness. Get off the stand once or twice to illustrate a point or demonstrate, for example, how the McRoberts maneuver is accomplished. It will keep the jury focused and interested.

When you stand before the jury to illustrate a point, make sure every juror can see your presentation. Your attorney may also request that a photograph or other exhibit be “published” to the jury so that the panel members can pass it among themselves and examine it with their own hands.

7 Be on your best behavior

Jurors are curious. They are being asked to, quite literally, pass judgment on you, despite knowing next to nothing about you. Jurors typically take their duties very seriously and will naturally be motivated to analyze non-verbal as well as verbal cues in an effort to learn more about you. Be prepared: They will watch your every move and mannerism in the courtroom, so be conscious of your clothing, mannerisms, and behavior. This holds true in the hallways of the courthouse and any location within two or three blocks. It is not uncommon to encounter a juror a block or two away from a courthouse in a major city, or to see a juror in a nearby coffee shop.

8 Control your reactions to testimony

It may be difficult to sit and listen as opposing counsel presents his opening argument to the jury. It may be a challenge to listen to the plaintiff’s case during the first 2 or 3 days of the trial. The plaintiff goes first; you have to wait your turn.

Overt facial reactions to testimony are best avoided. Although it may be helpful for you to make notes during testimony, try not to pass or slide them across the table to your attorney, except for rare occasions. There will be periodic breaks in the testimony, during which you can discuss your notes with your attorney. Frantically jotting down notes and sliding them over to your attorney may cause the jury to conclude that you are overly emotional or lack confidence in your attorney.

9 Test the gadgets

If you are going to present an exhibit, such as a chart or graph, make absolutely certain that it is accurate. Any error will be noted by opposing counsel and may impair your credibility. Also consider whether the chart or diagram could be reinterpreted to support your opponent’s case. If it could, don’t use it.

High-tech gizmos were once frowned upon by old-school defense attorneys. Now, we’re well past the MTV generation, and high-tech illustrations and animations are common in courtrooms. Be careful to avoid any high-tech malfunctions, however, which can distract the jury during presentation of your evidence.

If you are planning to use a demonstrative exhibit such as a heart-rate monitor or portable pulse oximetry device, make sure the batteries are charged and that it works. Practice any maneuver you plan to perform using the device or machine. You don’t want to appear clumsy or unfamiliar with the device. If any demonstration involves a sharp or needle, use an abundance of caution! In a birth injury case, baby mannequins are sometimes used. Make sure they work as intended and don’t permit anyone to “play” with them in the courtroom during breaks in the case. Trial is a serious matter; any levity observed by a juror could leave a detrimental impression.

Over my career, I have seen 1) an orthopedic surgery expert drop several “easy to assemble” metal components, creating a cacophony of pings and clangs as they bounced across the marble floor; 2) a surgeon staple his own palm with an “empty” laparoscopic staple gun; and 3) a medical expert miss a step getting off the witness stand, causing him to tumble into the jury box, strike his head and render himself nearly unconscious. This last incident led to the cancellation of the afternoon court session.

10 Take your time— and a little water

It’s helpful to visit the courtroom with your attorney some time before the trial date to dispel the jitters that can arise in an unfamiliar place. Also take a moment to sit in the witness stand so that you can have some level of comfort when testifying and understand how well, or poorly, the jury will be able to see you (and vice versa).

During the trial, take your time when answering questions. You may want to speak slightly more slowly than normal so that all the jurors can hear and appreciate what you’re saying. The tempo and volume of your testimony may also need to be adjusted, depending on the acoustics of the courtroom, which can vary widely, particularly in some of the more majestic and ornate venues.

Most courtrooms offer water pitchers and cups. Take a half-cup of water with you to the stand. A full cup is easy to spill—and creates a mess when it does. Courtrooms are not known for having an ample supply of paper towels.

Your confident presence can humanize the courtroom

The trial of a medical malpractice case is a difficult and emotional experience for any physician. Preparing to testify with confidence and precision is an important step toward a successful defense. The courtroom is an unfamiliar, uncomfortable, and adversarial environment. With appropriate preparation, however, the daunting specter of the witness stand can be conquered.

We want to hear from you! Tell us what you think.

Mr. Worek reports no financial relationships relevant to this article.

You survived the deposition: Your attorney advised you that it went well and that nothing you said was catastrophically harmful to the defense of your case. Now it’s time to move on to trial.

A date has been set, and you’re anticipating it with a fair dose of trepidation. You may find yourself pacing nervously along the marble corridors of the courthouse or staring with foreboding at the witness stand, with its solitary chair and microphone. Rest assured: There is much to be done to navigate your way through the trial process.

In this article—a follow-up to “Strategies for the hot seat: Giving a successful deposition” (February 2012)—I offer 10 tips for getting through a medical malpractice trial.

1 Preparation is critical

How do you get to Carnegie Hall? You’ve heard the joke.

Preparation is absolutely critical. You are going to have six to 14 jurors, a judge, defense counsel, opposing counsel, the plaintiff, and a small audience watching your every move and hanging on every word, but there’s no need to be nervous if you have prepared.

That said, be informed that hours upon hours of discussion and review of the care rendered with your attorney may be necessary to ensure that you understand medical and legal issues and can address both with confidence.

Any hesitation or poorly chosen phrase can have a detrimental effect on your case. Review every aspect of your testimony, the exhibits you plan to use, and the questions likely to be asked by your own attorney and opposing counsel—and do so repeatedly. You should expect to spend several days immediately before trial in your lawyer’s office going over every detail, so clear your schedule.

Don’t stop until you are familiar with every aspect of your testimony and the facts. Anything less may cause you to appear un-prepared, confused, or, worse—incompetent.

2 Put on your educator’s cap

Now is the time to teach.

During your deposition, you concentrated on simply answering the question that was posed in the manner in which it was asked, and you tried to avoid educating opposing counsel. A trial is different—you have a panel of jurors who are eager to hear your side of the story. These are the people who will decide your fate. Now is the time to teach.

I was once told—and I truly believe—that most jurors understand science and medicine at the high school level. Of course, some jurors will have greater understanding, and some less. Teach the jury the reasons behind your medical decisions and explain why they were correct. A teaching approach—as opposed to monotone answers—will help hold the jury’s attention and address its inquisitiveness.

Work with your attorney to develop appropriate explanations of medical terms, diagnoses, and treatments at issue in the case.

3 Face the jury

We typically look at the person to whom we are speaking. In the courtroom, this tendency translates into a focus on the lawyer who is doing the questioning rather than the jury. In the big picture, however, you are testifying to the jury, not the attorney—so look at the jurors when you speak.

Your attorney may position himself (or herself) near the jury so that your gaze encompasses both him and the panel. However, even if the attorney asking questions is not near the jury, turn toward the jury when you answer.

It may help to turn your chair to angle slightly toward the jury when you take the witness stand to make yourself more comfortable and avoid appearing as though your head is on a swivel. Doing so will also help you face the jury more squarely and directly.

Look into the faces and eyes of the jury when you answer questions. Speak to them, not at them.

4 Be yourself

When you are preparing for trial with your attorney, review the answers you expect to give to various questions. Work on delivering those responses in your own words, the way you would present them to a patient or a peer. A jury can detect sincerity and its opposite—glibness.

You and your counsel may agree on the information or points to be disclosed in response to a certain question, but on the witness stand, you will have to respond with your own voice and vocabulary.

5 Prepare to be cross-examined

Most jurisdictions permit opposing counsel to call a defendant physician to the witness stand, “as if on cross-examination.” This means that the opposing attorney can ask you leading questions in an attempt to box you into “Yes” or “No” responses with little or no opportunity to explain. This is customary. You must be prepared to face heated examination.

A trial is an adversarial process, based on the general premise that, through heated exchanges and questioning, the truth will emerge. Opposing counsel will attempt to get you to answer questions based on the plaintiff’s view of the case. Most physicians find having their answers constrained in this manner to be very frustrating.

Work with your attorney until you are ready to answer even the toughest and narrowest of “Yes” or “No” questions. If a question cannot be answered reliably with a “Yes” or “No,” be prepared to point that fact out to the questioning attorney or the judge. Also be prepared to provide an explanation beyond “Yes” or “No” when it may be appropriate. The judge will ultimately decide whether an explanation is warranted; many judges permit elaboration.

Your own attorney will later have the opportunity to question you, as well. If you are not permitted to give an explanation during questioning by opposing counsel, your own attorney can afford you that opportunity. An opposing attorney who insists that a physician not explain runs the risk of diverting the jury’s focus to the unstated explanation rather than to the actual “Yes” or “No” response. Indicate when you would like to explain an answer, and retain your composure if refused.

When opposing counsel has finished questioning you, your own skillful defense attorney can rise from his chair and ask, “Doctor, what is it that you wanted to explain to the ladies and gentlemen of the jury?” Then, like the late radio commentator Paul Harvey, you can provide “the rest of the story.”

As you did during your deposition, you have the right to ask for clarification of a confusing or unintelligible question. The same is true for a question in which a medical principle or condition is improperly characterized or defined. If a question doesn’t make sense, ask for clarification. If the question is inaccurate, advise the opposing attorney of the improper characterization, and ask that he rephrase the question. On occasion, it may be best to respond to a mischaracterization of a medical principle by answering: “That’s not how it works.” By declining to offer more information, you can create a moment of uncomfortable silence while opposing counsel collects his thoughts and regroups.

6 Emulate a weather forecaster

Work with your attorney to find aspects of your testimony that will permit you to get off the witness stand and present a chart or graph or other evidence from a standing position before the jury. Think of how much more interesting a weather forecaster is than an anchor who sits behind a desk reading news. Lengthy testimony from the witness stand is boring for the jury and can be tiring for the witness. Get off the stand once or twice to illustrate a point or demonstrate, for example, how the McRoberts maneuver is accomplished. It will keep the jury focused and interested.

When you stand before the jury to illustrate a point, make sure every juror can see your presentation. Your attorney may also request that a photograph or other exhibit be “published” to the jury so that the panel members can pass it among themselves and examine it with their own hands.

7 Be on your best behavior

Jurors are curious. They are being asked to, quite literally, pass judgment on you, despite knowing next to nothing about you. Jurors typically take their duties very seriously and will naturally be motivated to analyze non-verbal as well as verbal cues in an effort to learn more about you. Be prepared: They will watch your every move and mannerism in the courtroom, so be conscious of your clothing, mannerisms, and behavior. This holds true in the hallways of the courthouse and any location within two or three blocks. It is not uncommon to encounter a juror a block or two away from a courthouse in a major city, or to see a juror in a nearby coffee shop.

8 Control your reactions to testimony

It may be difficult to sit and listen as opposing counsel presents his opening argument to the jury. It may be a challenge to listen to the plaintiff’s case during the first 2 or 3 days of the trial. The plaintiff goes first; you have to wait your turn.

Overt facial reactions to testimony are best avoided. Although it may be helpful for you to make notes during testimony, try not to pass or slide them across the table to your attorney, except for rare occasions. There will be periodic breaks in the testimony, during which you can discuss your notes with your attorney. Frantically jotting down notes and sliding them over to your attorney may cause the jury to conclude that you are overly emotional or lack confidence in your attorney.

9 Test the gadgets

If you are going to present an exhibit, such as a chart or graph, make absolutely certain that it is accurate. Any error will be noted by opposing counsel and may impair your credibility. Also consider whether the chart or diagram could be reinterpreted to support your opponent’s case. If it could, don’t use it.

High-tech gizmos were once frowned upon by old-school defense attorneys. Now, we’re well past the MTV generation, and high-tech illustrations and animations are common in courtrooms. Be careful to avoid any high-tech malfunctions, however, which can distract the jury during presentation of your evidence.

If you are planning to use a demonstrative exhibit such as a heart-rate monitor or portable pulse oximetry device, make sure the batteries are charged and that it works. Practice any maneuver you plan to perform using the device or machine. You don’t want to appear clumsy or unfamiliar with the device. If any demonstration involves a sharp or needle, use an abundance of caution! In a birth injury case, baby mannequins are sometimes used. Make sure they work as intended and don’t permit anyone to “play” with them in the courtroom during breaks in the case. Trial is a serious matter; any levity observed by a juror could leave a detrimental impression.

Over my career, I have seen 1) an orthopedic surgery expert drop several “easy to assemble” metal components, creating a cacophony of pings and clangs as they bounced across the marble floor; 2) a surgeon staple his own palm with an “empty” laparoscopic staple gun; and 3) a medical expert miss a step getting off the witness stand, causing him to tumble into the jury box, strike his head and render himself nearly unconscious. This last incident led to the cancellation of the afternoon court session.

10 Take your time— and a little water

It’s helpful to visit the courtroom with your attorney some time before the trial date to dispel the jitters that can arise in an unfamiliar place. Also take a moment to sit in the witness stand so that you can have some level of comfort when testifying and understand how well, or poorly, the jury will be able to see you (and vice versa).

During the trial, take your time when answering questions. You may want to speak slightly more slowly than normal so that all the jurors can hear and appreciate what you’re saying. The tempo and volume of your testimony may also need to be adjusted, depending on the acoustics of the courtroom, which can vary widely, particularly in some of the more majestic and ornate venues.

Most courtrooms offer water pitchers and cups. Take a half-cup of water with you to the stand. A full cup is easy to spill—and creates a mess when it does. Courtrooms are not known for having an ample supply of paper towels.

Your confident presence can humanize the courtroom

The trial of a medical malpractice case is a difficult and emotional experience for any physician. Preparing to testify with confidence and precision is an important step toward a successful defense. The courtroom is an unfamiliar, uncomfortable, and adversarial environment. With appropriate preparation, however, the daunting specter of the witness stand can be conquered.

We want to hear from you! Tell us what you think.

The unthinkable has happened: You’ve been sued.

You’ve spent the past several months explaining your care and treatment of the patient to your defense attorney. Now the plaintiff attorney wants to take your deposition.

Although a deposition is a routine part of a case (the defendant physician in a medical malpractice lawsuit is nearly always called on to give one), you’re anticipating the undertaking with understandable trepidation—maybe even fear.

There are significant differences between testifying in a deposition and testifying in a courtroom at trial. In this article, I offer 10 strategies for giving deposition testimony that strengthens your defense—or, at least, does not weaken it. In the next (March) issue of OBG Management, I will review tactics for giving testimony at trial.

Out of the courtroom, still in the fire

A deposition is generally conducted in the conference room of the firm of one of the lawyers (defense or plaintiff attorney). It is an opportunity for the plaintiff lawyer to pose questions to the defendant physician. It is also an opportunity for the lawyer to challenge the physician’s answers, test his or her resolve, and collect sound bites that are unfavorable to the doctor’s defense. These sound bites can be read to the jury at trial.

On average, a physician deposition takes 3 or 4 hours to complete, although a duration of 6 to 8 hours is not uncommon. A deposition may begin in a relatively congenial atmosphere but devolve, at some point, to a highly contentious exchange.

Rather than leave the outcome of the deposition to chance, it is better to take a few considered preparatory steps and proceed judiciously during the deposition. Here are 10 strategies to help you come out on top.

1 Tell the truth

As a defendant, your credibility is the foundation upon which all of your past actions and forthcoming testimony—at deposition and at trial—will be judged. If you manage to protect and preserve that credibility, it will be a fortress of strength. If your credibility is compromised or breached, however, you will open yourself to attacks based on your decisions as a medical practitioner, and also upon your basic character as a human being.

Tell the truth, even when the truth may appear to cast you in an unfavorable light. On many occasions, I have seen a seemingly unfavorable issue become defensible as the evidence and case develop. The discovery of additional facts during the litigation may help strengthen the defense. Therefore, tell the truth, even if it appears to be unfavorable.

Many years ago, a mentor told me: “Honesty isn’t the best policy—it’s the only policy.”

As former Senator Alan Simpson once said: “If you have integrity, nothing else matters. If you don’t have integrity, nothing else matters.”

2 Prepare thoroughly with your defense attorney

Defending a lawsuit is a team effort. It requires cooperation between the physician, who brings medical knowledge and expertise to the table, and the defense attorney, who brings legal expertise. The more time you spend educating your attorney about the medicine, the better the result will be. And the more time the attorney spends raking you over the coals in preparation for the deposition, the better the outcome. If you view the education of your attorney and the overall defense of your case as a chore or inconvenience, you do yourself a great disservice.

Tell your defense attorney about any weaknesses that you perceive or suspect regarding the medical care rendered. It is better to develop a strategy to address a weakness rather than be surprised by or unprepared to answer a question on the issue during your deposition.

Provide your defense attorney with peer-reviewed literature and other reliable information about the medical care. Such information will help educate your attorney, may aid in defining the “standard of care,” and may be a source of potential differing views on the care rendered. Reliable literature will also alert you and your defense attorney to the potential alternative treatment theories that the plaintiff attorney is likely to raise during your deposition.

Make sure you clearly understand the meaning of “the standard of care” within the jurisdiction where your case is pending. Most jurisdictions permit a physician to be asked, point blank, “Doctor, did you meet the standard of care?” Responding that you don’t know what the definition of “standard of care” is or that you’re uncertain whether you met the standard of care would certainly be damaging to your defense.

Thorough preparation normally requires two or three meetings, each lasting 2 to 4 hours. Every potential question needs to be anticipated and evaluated. Keep in mind that every word of your testimony will be recorded by the court reporter, so concise and careful speech is a must. The ideal preparation is for your attorney to focus on your thought process and challenge your initial answers in role-playing sessions to expose any potential problems.

After the deposition, the best compliment you can pay your lawyer is to tell him or her that 1) there wasn’t a single question that surprised you and 2) the preparation was more grueling than the deposition.

As in other settings, half the battle is what you say, and the other half is how you say it. Both content and delivery are key.

3 Maintain your composure

A deposition is not the time to “get something off your chest.” Nor is it a license to tell the other guy “a thing or two.” A lawsuit can be emotionally devastating and exhausting—but if you need encouragement or feel an urge to vent frustrations, do it with your lawyer in private. The deposition room is not a place where weakness is rewarded.

There is no judge or jury at a deposition. Even if you give stellar and inspiring testimony, nobody is going to pronounce you the winner in the lawsuit. However, you can do serious damage to your case by making statements against your interest or becoming emotionally unwound.

The plaintiff attorney will probe your thinking, medical judgments, competence, and treatment decisions and performance. A good lawyer will spot any sign of inconsistency or weakness and dig deeper and deeper until you are caught between the horns of two seemingly inconsistent positions.

Composure is especially critical when a deposition is recorded on videotape. The Internet contains videos of a number of emotional deposition eruptions that, when replayed to a jury, undoubtedly produced catastrophic results.

Your dress and demeanor must remain professional whether or not the deposition is videotaped. A suit or sport coat and tie for men and similar professional attire for women are a must. Wearing a lab coat over a suit is generally only credible if the deposition is taking place in your clinical office or in a hospital.

4 Listen to the question

Each question is critical; listen closely. This may seem like a simple rule, but it is one that is frequently broken.

Listen to the question, and then take a breath before you answer. This pause will give your brain time to analyze the question and prepare a reasonable answer. It will also give your lawyer time to make a verbal objection, if one is warranted.

Make sure the question is intelligible before you begin to answer it. If you don’t understand it, say so and ask that it be rephrased.

If the question is medically inaccurate, point out the inaccuracy. For example, if the lawyer posits that preeclampsia is contagious, correct that statement and ask for the question to be rephrased. In cases involving birth trauma, the phrases “fetal stress” and “fetal distress” are often intermingled.

In the heat of a deposition, you will feel pressured. Don’t let that pressure cause you to blurt out an inaccurate or inappropriate answer to a poorly phrased question.

Listening to each question and taking a breath before responding will also keep you from becoming involved in a rapid-fire question-and-answer flurry with the opposing attorney. Such flurries rarely end favorably for the physician.

Listen to the question. Take it one question and one answer at a time.

5 Stop, look, listen

If your attorney makes an objection, stop talking. Don’t answer the question until your attorney gives you the go-ahead.

Sometimes a question is so inappropriate, you can rightfully refuse to answer. For example, an aggressive attorney might ask, “Doctor, am I correct that in medical school they taught you not to leave sponges in the patient’s belly?” Or, perhaps, “Doctor, did you think it might be a good idea to identify the ureter before you went slicing away at my poor client?” Such questions are, at times, merely designed to anger and impair the doctor’s focus.

In most instances, any objection from your lawyer will concern the technical phrasing of the question, and you will be instructed to answer.

Look at your attorney. Listen to the objection. The nature of the objection may give you valuable insight as to whether the phrasing of the question poses risks that are not readily apparent.

6 Answer only the question that is asked

This is another simple rule that is often broken. Many times, a physician will answer the question that is posed and then offer additional information that lies beyond the scope of the question. This approach creates three potential problems:

• It may lead the plaintiff attorney to ask about information that he or she hadn’t previously considered.
• It creates apparent inconsistency because the answer doesn’t match the question.
• It makes the deposition longer.

I once represented an anesthesiologist who was asked whether he evaluated the patient’s airway before intubation. He responded: “Yes, she was a red flag.”

From that point, the deposition became a downward spiral. Nobody had asked about “red flags”—or any other color of flag, for that matter—but that simple phrase changed the face of the litigation.

You can’t be penalized for not answering a question that was not asked. For example, if an attorney questions you for 4 hours but never touches on the patient’s history of a prior macrosomic delivery, you generally can’t be criticized at trial for failing to reveal the information in your deposition.

7 Don’t volunteer information

This is similar to strategy#6. As a general rule, you should refrain from volunteering information beyond the scope of the question.

The deposition is an adversarial process. Any information you volunteer has the potential to lead the opposing attorney into areas he or she hadn’t previously considered. When you volunteer information beyond the scope of the question, it may signal to opposing counsel that you are subliminally uncomfortable about some area of the case, and scores of additional questions may follow.

Opposing counsel is generally only able to obtain information from you via written questions (“interrogatories”) or directly during a deposition. If you engage in any informal pleasantries or discussions with opposing counsel in the deposition room, you could inadvertently provide information about yourself and your beliefs that the attorney would otherwise not be entitled to obtain. Therefore, anything beyond a simple handshake and “good afternoon” may be ill-advised.

This general rule of thumb isn’t hard and fast, however. Discuss this strategy with your attorney in advance of the deposition. In some instances, there may be information that should be volunteered during the process.

8 Know the medical chart

You will be questioned about your actions. If the answer is contained in the medical chart, it may be wise to refer to it to confirm the answer before you respond. If your handwriting or that of other parties is difficult to decipher, you must interpret the hieroglyphics before your deposition. It looks terrible when a physician stumbles and bumbles through his or her own handwriting or that of a trusted colleague. It’s even worse when the physician has to admit that he or she simply cannot decipher some or all of a critically important treatment note or order.

Similarly, if you are presented with a document, read it before you answer questions about it. Make sure that you receive all the pages and that the document is actually what the attorney represents it to be.

9 Resist the urge to educate

Physicians are highly intelligent people who, in addition to practicing medicine, educate their patients. A deposition room is not the place to be an educator, however. The opposing attorney may be unprepared, and by educating him or her, you may unwittingly assist them, ultimately leading to questions that produce unfavorable responses.

The opposing counsel in a medical malpractice action has very likely already consulted with an expert witness—quite possibly, with several. Those experts will have assisted the attorney in drafting questions to be put to you. Those questions will be intelligently designed to exploit potential weaknesses and conflicts in the defense.

Treat with great caution any statement by a lawyer to the effect of, “I’m just a lawyer. I don’t understand all this medical jargon.”

When a lawyer feigns ignorance, beware.

10 Take a break

A deposition can make you feel as though you are in a pressure cooker. If you need to take a break, ask your attorney to request one.

Also discuss with your attorney, ahead of time, how long the deposition is likely to take and whether scheduled or impromptu breaks are more appropriate.

Many attorneys can move from a congenial interrogation to heated questioning at the flip of a switch. You must be ready to answer questions under all conditions and stress levels. If you become emotional or combative, it may signal a weakness in your position or simply encourage opposing counsel to engage in similar tactics at the trial.

If you feel that you are losing your composure, it’s time to take a break.

You can make it through!

Although every situation and case are different, these 10 strategies should help you understand the deposition process and endure it. These strategies are guideposts that should be reviewed with your attorney. With careful preparation, you can both survive the process and bolster the defense of your case.

Has a deposition gone wrong?

Send us details of your worst deposition experience—and what you learned from it that can help your peers—and we will feature a selection in an upcoming issue of OBG Management. Simply email a short description to [email protected]. Include your name and city and state.

We want to hear from you! Tell us what you think.

The unthinkable has happened: You’ve been sued.

You’ve spent the past several months explaining your care and treatment of the patient to your defense attorney. Now the plaintiff attorney wants to take your deposition.

Although a deposition is a routine part of a case (the defendant physician in a medical malpractice lawsuit is nearly always called on to give one), you’re anticipating the undertaking with understandable trepidation—maybe even fear.

There are significant differences between testifying in a deposition and testifying in a courtroom at trial. In this article, I offer 10 strategies for giving deposition testimony that strengthens your defense—or, at least, does not weaken it. In the next (March) issue of OBG Management, I will review tactics for giving testimony at trial.

Out of the courtroom, still in the fire

A deposition is generally conducted in the conference room of the firm of one of the lawyers (defense or plaintiff attorney). It is an opportunity for the plaintiff lawyer to pose questions to the defendant physician. It is also an opportunity for the lawyer to challenge the physician’s answers, test his or her resolve, and collect sound bites that are unfavorable to the doctor’s defense. These sound bites can be read to the jury at trial.

On average, a physician deposition takes 3 or 4 hours to complete, although a duration of 6 to 8 hours is not uncommon. A deposition may begin in a relatively congenial atmosphere but devolve, at some point, to a highly contentious exchange.

Rather than leave the outcome of the deposition to chance, it is better to take a few considered preparatory steps and proceed judiciously during the deposition. Here are 10 strategies to help you come out on top.

1 Tell the truth

As a defendant, your credibility is the foundation upon which all of your past actions and forthcoming testimony—at deposition and at trial—will be judged. If you manage to protect and preserve that credibility, it will be a fortress of strength. If your credibility is compromised or breached, however, you will open yourself to attacks based on your decisions as a medical practitioner, and also upon your basic character as a human being.

Tell the truth, even when the truth may appear to cast you in an unfavorable light. On many occasions, I have seen a seemingly unfavorable issue become defensible as the evidence and case develop. The discovery of additional facts during the litigation may help strengthen the defense. Therefore, tell the truth, even if it appears to be unfavorable.

Many years ago, a mentor told me: “Honesty isn’t the best policy—it’s the only policy.”

As former Senator Alan Simpson once said: “If you have integrity, nothing else matters. If you don’t have integrity, nothing else matters.”

2 Prepare thoroughly with your defense attorney

Defending a lawsuit is a team effort. It requires cooperation between the physician, who brings medical knowledge and expertise to the table, and the defense attorney, who brings legal expertise. The more time you spend educating your attorney about the medicine, the better the result will be. And the more time the attorney spends raking you over the coals in preparation for the deposition, the better the outcome. If you view the education of your attorney and the overall defense of your case as a chore or inconvenience, you do yourself a great disservice.

Tell your defense attorney about any weaknesses that you perceive or suspect regarding the medical care rendered. It is better to develop a strategy to address a weakness rather than be surprised by or unprepared to answer a question on the issue during your deposition.

Provide your defense attorney with peer-reviewed literature and other reliable information about the medical care. Such information will help educate your attorney, may aid in defining the “standard of care,” and may be a source of potential differing views on the care rendered. Reliable literature will also alert you and your defense attorney to the potential alternative treatment theories that the plaintiff attorney is likely to raise during your deposition.

Make sure you clearly understand the meaning of “the standard of care” within the jurisdiction where your case is pending. Most jurisdictions permit a physician to be asked, point blank, “Doctor, did you meet the standard of care?” Responding that you don’t know what the definition of “standard of care” is or that you’re uncertain whether you met the standard of care would certainly be damaging to your defense.

Thorough preparation normally requires two or three meetings, each lasting 2 to 4 hours. Every potential question needs to be anticipated and evaluated. Keep in mind that every word of your testimony will be recorded by the court reporter, so concise and careful speech is a must. The ideal preparation is for your attorney to focus on your thought process and challenge your initial answers in role-playing sessions to expose any potential problems.

After the deposition, the best compliment you can pay your lawyer is to tell him or her that 1) there wasn’t a single question that surprised you and 2) the preparation was more grueling than the deposition.

As in other settings, half the battle is what you say, and the other half is how you say it. Both content and delivery are key.

3 Maintain your composure

A deposition is not the time to “get something off your chest.” Nor is it a license to tell the other guy “a thing or two.” A lawsuit can be emotionally devastating and exhausting—but if you need encouragement or feel an urge to vent frustrations, do it with your lawyer in private. The deposition room is not a place where weakness is rewarded.

There is no judge or jury at a deposition. Even if you give stellar and inspiring testimony, nobody is going to pronounce you the winner in the lawsuit. However, you can do serious damage to your case by making statements against your interest or becoming emotionally unwound.

The plaintiff attorney will probe your thinking, medical judgments, competence, and treatment decisions and performance. A good lawyer will spot any sign of inconsistency or weakness and dig deeper and deeper until you are caught between the horns of two seemingly inconsistent positions.

Composure is especially critical when a deposition is recorded on videotape. The Internet contains videos of a number of emotional deposition eruptions that, when replayed to a jury, undoubtedly produced catastrophic results.

Your dress and demeanor must remain professional whether or not the deposition is videotaped. A suit or sport coat and tie for men and similar professional attire for women are a must. Wearing a lab coat over a suit is generally only credible if the deposition is taking place in your clinical office or in a hospital.

4 Listen to the question

Each question is critical; listen closely. This may seem like a simple rule, but it is one that is frequently broken.

Listen to the question, and then take a breath before you answer. This pause will give your brain time to analyze the question and prepare a reasonable answer. It will also give your lawyer time to make a verbal objection, if one is warranted.

Make sure the question is intelligible before you begin to answer it. If you don’t understand it, say so and ask that it be rephrased.

If the question is medically inaccurate, point out the inaccuracy. For example, if the lawyer posits that preeclampsia is contagious, correct that statement and ask for the question to be rephrased. In cases involving birth trauma, the phrases “fetal stress” and “fetal distress” are often intermingled.

In the heat of a deposition, you will feel pressured. Don’t let that pressure cause you to blurt out an inaccurate or inappropriate answer to a poorly phrased question.

Listening to each question and taking a breath before responding will also keep you from becoming involved in a rapid-fire question-and-answer flurry with the opposing attorney. Such flurries rarely end favorably for the physician.

Listen to the question. Take it one question and one answer at a time.

5 Stop, look, listen

If your attorney makes an objection, stop talking. Don’t answer the question until your attorney gives you the go-ahead.

Sometimes a question is so inappropriate, you can rightfully refuse to answer. For example, an aggressive attorney might ask, “Doctor, am I correct that in medical school they taught you not to leave sponges in the patient’s belly?” Or, perhaps, “Doctor, did you think it might be a good idea to identify the ureter before you went slicing away at my poor client?” Such questions are, at times, merely designed to anger and impair the doctor’s focus.

In most instances, any objection from your lawyer will concern the technical phrasing of the question, and you will be instructed to answer.

Look at your attorney. Listen to the objection. The nature of the objection may give you valuable insight as to whether the phrasing of the question poses risks that are not readily apparent.

6 Answer only the question that is asked

This is another simple rule that is often broken. Many times, a physician will answer the question that is posed and then offer additional information that lies beyond the scope of the question. This approach creates three potential problems:

• It may lead the plaintiff attorney to ask about information that he or she hadn’t previously considered.
• It creates apparent inconsistency because the answer doesn’t match the question.
• It makes the deposition longer.

I once represented an anesthesiologist who was asked whether he evaluated the patient’s airway before intubation. He responded: “Yes, she was a red flag.”

From that point, the deposition became a downward spiral. Nobody had asked about “red flags”—or any other color of flag, for that matter—but that simple phrase changed the face of the litigation.

You can’t be penalized for not answering a question that was not asked. For example, if an attorney questions you for 4 hours but never touches on the patient’s history of a prior macrosomic delivery, you generally can’t be criticized at trial for failing to reveal the information in your deposition.

7 Don’t volunteer information

This is similar to strategy#6. As a general rule, you should refrain from volunteering information beyond the scope of the question.

The deposition is an adversarial process. Any information you volunteer has the potential to lead the opposing attorney into areas he or she hadn’t previously considered. When you volunteer information beyond the scope of the question, it may signal to opposing counsel that you are subliminally uncomfortable about some area of the case, and scores of additional questions may follow.

Opposing counsel is generally only able to obtain information from you via written questions (“interrogatories”) or directly during a deposition. If you engage in any informal pleasantries or discussions with opposing counsel in the deposition room, you could inadvertently provide information about yourself and your beliefs that the attorney would otherwise not be entitled to obtain. Therefore, anything beyond a simple handshake and “good afternoon” may be ill-advised.

This general rule of thumb isn’t hard and fast, however. Discuss this strategy with your attorney in advance of the deposition. In some instances, there may be information that should be volunteered during the process.

8 Know the medical chart

You will be questioned about your actions. If the answer is contained in the medical chart, it may be wise to refer to it to confirm the answer before you respond. If your handwriting or that of other parties is difficult to decipher, you must interpret the hieroglyphics before your deposition. It looks terrible when a physician stumbles and bumbles through his or her own handwriting or that of a trusted colleague. It’s even worse when the physician has to admit that he or she simply cannot decipher some or all of a critically important treatment note or order.

Similarly, if you are presented with a document, read it before you answer questions about it. Make sure that you receive all the pages and that the document is actually what the attorney represents it to be.

9 Resist the urge to educate

Physicians are highly intelligent people who, in addition to practicing medicine, educate their patients. A deposition room is not the place to be an educator, however. The opposing attorney may be unprepared, and by educating him or her, you may unwittingly assist them, ultimately leading to questions that produce unfavorable responses.

The opposing counsel in a medical malpractice action has very likely already consulted with an expert witness—quite possibly, with several. Those experts will have assisted the attorney in drafting questions to be put to you. Those questions will be intelligently designed to exploit potential weaknesses and conflicts in the defense.

Treat with great caution any statement by a lawyer to the effect of, “I’m just a lawyer. I don’t understand all this medical jargon.”

When a lawyer feigns ignorance, beware.

10 Take a break

A deposition can make you feel as though you are in a pressure cooker. If you need to take a break, ask your attorney to request one.

Also discuss with your attorney, ahead of time, how long the deposition is likely to take and whether scheduled or impromptu breaks are more appropriate.

Many attorneys can move from a congenial interrogation to heated questioning at the flip of a switch. You must be ready to answer questions under all conditions and stress levels. If you become emotional or combative, it may signal a weakness in your position or simply encourage opposing counsel to engage in similar tactics at the trial.

If you feel that you are losing your composure, it’s time to take a break.

You can make it through!

Although every situation and case are different, these 10 strategies should help you understand the deposition process and endure it. These strategies are guideposts that should be reviewed with your attorney. With careful preparation, you can both survive the process and bolster the defense of your case.

Has a deposition gone wrong?

Send us details of your worst deposition experience—and what you learned from it that can help your peers—and we will feature a selection in an upcoming issue of OBG Management. Simply email a short description to [email protected]. Include your name and city and state.

We want to hear from you! Tell us what you think.

The unthinkable has happened: You’ve been sued.

You’ve spent the past several months explaining your care and treatment of the patient to your defense attorney. Now the plaintiff attorney wants to take your deposition.

Although a deposition is a routine part of a case (the defendant physician in a medical malpractice lawsuit is nearly always called on to give one), you’re anticipating the undertaking with understandable trepidation—maybe even fear.

There are significant differences between testifying in a deposition and testifying in a courtroom at trial. In this article, I offer 10 strategies for giving deposition testimony that strengthens your defense—or, at least, does not weaken it. In the next (March) issue of OBG Management, I will review tactics for giving testimony at trial.

Out of the courtroom, still in the fire

A deposition is generally conducted in the conference room of the firm of one of the lawyers (defense or plaintiff attorney). It is an opportunity for the plaintiff lawyer to pose questions to the defendant physician. It is also an opportunity for the lawyer to challenge the physician’s answers, test his or her resolve, and collect sound bites that are unfavorable to the doctor’s defense. These sound bites can be read to the jury at trial.

On average, a physician deposition takes 3 or 4 hours to complete, although a duration of 6 to 8 hours is not uncommon. A deposition may begin in a relatively congenial atmosphere but devolve, at some point, to a highly contentious exchange.

Rather than leave the outcome of the deposition to chance, it is better to take a few considered preparatory steps and proceed judiciously during the deposition. Here are 10 strategies to help you come out on top.

1 Tell the truth

As a defendant, your credibility is the foundation upon which all of your past actions and forthcoming testimony—at deposition and at trial—will be judged. If you manage to protect and preserve that credibility, it will be a fortress of strength. If your credibility is compromised or breached, however, you will open yourself to attacks based on your decisions as a medical practitioner, and also upon your basic character as a human being.

Tell the truth, even when the truth may appear to cast you in an unfavorable light. On many occasions, I have seen a seemingly unfavorable issue become defensible as the evidence and case develop. The discovery of additional facts during the litigation may help strengthen the defense. Therefore, tell the truth, even if it appears to be unfavorable.

Many years ago, a mentor told me: “Honesty isn’t the best policy—it’s the only policy.”

As former Senator Alan Simpson once said: “If you have integrity, nothing else matters. If you don’t have integrity, nothing else matters.”

2 Prepare thoroughly with your defense attorney

Defending a lawsuit is a team effort. It requires cooperation between the physician, who brings medical knowledge and expertise to the table, and the defense attorney, who brings legal expertise. The more time you spend educating your attorney about the medicine, the better the result will be. And the more time the attorney spends raking you over the coals in preparation for the deposition, the better the outcome. If you view the education of your attorney and the overall defense of your case as a chore or inconvenience, you do yourself a great disservice.

Tell your defense attorney about any weaknesses that you perceive or suspect regarding the medical care rendered. It is better to develop a strategy to address a weakness rather than be surprised by or unprepared to answer a question on the issue during your deposition.

Provide your defense attorney with peer-reviewed literature and other reliable information about the medical care. Such information will help educate your attorney, may aid in defining the “standard of care,” and may be a source of potential differing views on the care rendered. Reliable literature will also alert you and your defense attorney to the potential alternative treatment theories that the plaintiff attorney is likely to raise during your deposition.

Make sure you clearly understand the meaning of “the standard of care” within the jurisdiction where your case is pending. Most jurisdictions permit a physician to be asked, point blank, “Doctor, did you meet the standard of care?” Responding that you don’t know what the definition of “standard of care” is or that you’re uncertain whether you met the standard of care would certainly be damaging to your defense.

Thorough preparation normally requires two or three meetings, each lasting 2 to 4 hours. Every potential question needs to be anticipated and evaluated. Keep in mind that every word of your testimony will be recorded by the court reporter, so concise and careful speech is a must. The ideal preparation is for your attorney to focus on your thought process and challenge your initial answers in role-playing sessions to expose any potential problems.

After the deposition, the best compliment you can pay your lawyer is to tell him or her that 1) there wasn’t a single question that surprised you and 2) the preparation was more grueling than the deposition.

As in other settings, half the battle is what you say, and the other half is how you say it. Both content and delivery are key.

3 Maintain your composure

A deposition is not the time to “get something off your chest.” Nor is it a license to tell the other guy “a thing or two.” A lawsuit can be emotionally devastating and exhausting—but if you need encouragement or feel an urge to vent frustrations, do it with your lawyer in private. The deposition room is not a place where weakness is rewarded.

There is no judge or jury at a deposition. Even if you give stellar and inspiring testimony, nobody is going to pronounce you the winner in the lawsuit. However, you can do serious damage to your case by making statements against your interest or becoming emotionally unwound.

The plaintiff attorney will probe your thinking, medical judgments, competence, and treatment decisions and performance. A good lawyer will spot any sign of inconsistency or weakness and dig deeper and deeper until you are caught between the horns of two seemingly inconsistent positions.

Composure is especially critical when a deposition is recorded on videotape. The Internet contains videos of a number of emotional deposition eruptions that, when replayed to a jury, undoubtedly produced catastrophic results.

Your dress and demeanor must remain professional whether or not the deposition is videotaped. A suit or sport coat and tie for men and similar professional attire for women are a must. Wearing a lab coat over a suit is generally only credible if the deposition is taking place in your clinical office or in a hospital.

4 Listen to the question

Each question is critical; listen closely. This may seem like a simple rule, but it is one that is frequently broken.

Listen to the question, and then take a breath before you answer. This pause will give your brain time to analyze the question and prepare a reasonable answer. It will also give your lawyer time to make a verbal objection, if one is warranted.

Make sure the question is intelligible before you begin to answer it. If you don’t understand it, say so and ask that it be rephrased.

If the question is medically inaccurate, point out the inaccuracy. For example, if the lawyer posits that preeclampsia is contagious, correct that statement and ask for the question to be rephrased. In cases involving birth trauma, the phrases “fetal stress” and “fetal distress” are often intermingled.

In the heat of a deposition, you will feel pressured. Don’t let that pressure cause you to blurt out an inaccurate or inappropriate answer to a poorly phrased question.

Listening to each question and taking a breath before responding will also keep you from becoming involved in a rapid-fire question-and-answer flurry with the opposing attorney. Such flurries rarely end favorably for the physician.

Listen to the question. Take it one question and one answer at a time.

5 Stop, look, listen

If your attorney makes an objection, stop talking. Don’t answer the question until your attorney gives you the go-ahead.

Sometimes a question is so inappropriate, you can rightfully refuse to answer. For example, an aggressive attorney might ask, “Doctor, am I correct that in medical school they taught you not to leave sponges in the patient’s belly?” Or, perhaps, “Doctor, did you think it might be a good idea to identify the ureter before you went slicing away at my poor client?” Such questions are, at times, merely designed to anger and impair the doctor’s focus.

In most instances, any objection from your lawyer will concern the technical phrasing of the question, and you will be instructed to answer.

Look at your attorney. Listen to the objection. The nature of the objection may give you valuable insight as to whether the phrasing of the question poses risks that are not readily apparent.

6 Answer only the question that is asked

This is another simple rule that is often broken. Many times, a physician will answer the question that is posed and then offer additional information that lies beyond the scope of the question. This approach creates three potential problems:

• It may lead the plaintiff attorney to ask about information that he or she hadn’t previously considered.
• It creates apparent inconsistency because the answer doesn’t match the question.
• It makes the deposition longer.

I once represented an anesthesiologist who was asked whether he evaluated the patient’s airway before intubation. He responded: “Yes, she was a red flag.”

From that point, the deposition became a downward spiral. Nobody had asked about “red flags”—or any other color of flag, for that matter—but that simple phrase changed the face of the litigation.

You can’t be penalized for not answering a question that was not asked. For example, if an attorney questions you for 4 hours but never touches on the patient’s history of a prior macrosomic delivery, you generally can’t be criticized at trial for failing to reveal the information in your deposition.

7 Don’t volunteer information

This is similar to strategy#6. As a general rule, you should refrain from volunteering information beyond the scope of the question.

The deposition is an adversarial process. Any information you volunteer has the potential to lead the opposing attorney into areas he or she hadn’t previously considered. When you volunteer information beyond the scope of the question, it may signal to opposing counsel that you are subliminally uncomfortable about some area of the case, and scores of additional questions may follow.

Opposing counsel is generally only able to obtain information from you via written questions (“interrogatories”) or directly during a deposition. If you engage in any informal pleasantries or discussions with opposing counsel in the deposition room, you could inadvertently provide information about yourself and your beliefs that the attorney would otherwise not be entitled to obtain. Therefore, anything beyond a simple handshake and “good afternoon” may be ill-advised.

This general rule of thumb isn’t hard and fast, however. Discuss this strategy with your attorney in advance of the deposition. In some instances, there may be information that should be volunteered during the process.

8 Know the medical chart

You will be questioned about your actions. If the answer is contained in the medical chart, it may be wise to refer to it to confirm the answer before you respond. If your handwriting or that of other parties is difficult to decipher, you must interpret the hieroglyphics before your deposition. It looks terrible when a physician stumbles and bumbles through his or her own handwriting or that of a trusted colleague. It’s even worse when the physician has to admit that he or she simply cannot decipher some or all of a critically important treatment note or order.

Similarly, if you are presented with a document, read it before you answer questions about it. Make sure that you receive all the pages and that the document is actually what the attorney represents it to be.

9 Resist the urge to educate

Physicians are highly intelligent people who, in addition to practicing medicine, educate their patients. A deposition room is not the place to be an educator, however. The opposing attorney may be unprepared, and by educating him or her, you may unwittingly assist them, ultimately leading to questions that produce unfavorable responses.

The opposing counsel in a medical malpractice action has very likely already consulted with an expert witness—quite possibly, with several. Those experts will have assisted the attorney in drafting questions to be put to you. Those questions will be intelligently designed to exploit potential weaknesses and conflicts in the defense.

Treat with great caution any statement by a lawyer to the effect of, “I’m just a lawyer. I don’t understand all this medical jargon.”

When a lawyer feigns ignorance, beware.

10 Take a break

A deposition can make you feel as though you are in a pressure cooker. If you need to take a break, ask your attorney to request one.

Also discuss with your attorney, ahead of time, how long the deposition is likely to take and whether scheduled or impromptu breaks are more appropriate.

Many attorneys can move from a congenial interrogation to heated questioning at the flip of a switch. You must be ready to answer questions under all conditions and stress levels. If you become emotional or combative, it may signal a weakness in your position or simply encourage opposing counsel to engage in similar tactics at the trial.

If you feel that you are losing your composure, it’s time to take a break.

You can make it through!

Although every situation and case are different, these 10 strategies should help you understand the deposition process and endure it. These strategies are guideposts that should be reviewed with your attorney. With careful preparation, you can both survive the process and bolster the defense of your case.

Has a deposition gone wrong?

Send us details of your worst deposition experience—and what you learned from it that can help your peers—and we will feature a selection in an upcoming issue of OBG Management. Simply email a short description to [email protected]. Include your name and city and state.

We want to hear from you! Tell us what you think.

The author reports no financial relationships relevant to this article.

The heightened risk of being sued for a poor outcome—even when you and the obstetric team have delivered excellent care—is a sad reality of ObGyn practice, especially when shoulder dystocia is involved. Not so long ago, some physicians viewed a lawsuit as one of the costs of doing business and considered settlement of claims to avoid disruption to their practice. Today, with insurance rates skyrocketing, settlement is not as palatable, unless a clear breach of the standard of care has occurred. And although only a small percentage of cases ever reach trial, and fewer still go to a jury verdict, don’t be lulled into a false sense of security. A single case can take 5 or more years to make its way through the system.

What can you do to avoid the appearance of negligence and prevent litigation? And what tangential actions on the part of the physician or staff can cast defensible cases into the abyss of negligence? This article addresses these questions, focusing on 10 keys to avert or win a lawsuit involving shoulder dystocia.

Before you begin. Here is one preliminary piece of advice: Be vigilant. Air crash investigators frequently note that a crash occurs when a number of small errors link together. To prevent a poor outcome, it is critical to be alert to even minor inconsistencies in the care you and the obstetric team provide so you can rectify the situation before the small errors link into a disastrous chain.

1. Don’t downplay the “D” word

There are three important rules in medicine: Document, document, document. Yes, you’ve heard many people stress the importance of good notation, and I can back them up: A well-documented chart is a defendant’s best friend. Time and again, I’ve heard defense counsel lamenting—and plaintiff’s counsel exhorting—“if it isn’t documented, it didn’t happen.”

Careful documentation begins early. If a child is expected to be large for gestational age (LGA) or macrosomic, clear documentation of that fact and a plan in the prenatal record to address it during labor and delivery is critical. It also is important to communicate the potential for a large infant to the labor and delivery staff. Consider using a stamp or other indicator to mark the prenatal chart for this potentiality.

Make it legible

Clear handwriting or typed notes add substantial benefit to the defense of a dystocia case. They also help prevent the uncomfortable silence that can overwhelm a courtroom as 12 jurors stare at a witness who is unable to decipher her own notes or those of a colleague. The inability to interpret a note is almost as damaging to a case as the complete lack of a note. If a detail is important enough to warrant documentation, it’s important enough to document legibly.

Sooner is always better

Any shoulder dystocia case that involves injury to the child—whether temporary or permanent—holds significant potential to blossom into litigation. It is important to document the diagnosis of dystocia, steps taken to resolve it, and the outcome—and to do so during the delivery or as soon thereafter as possible.

The importance of this recommendation cannot be overstated. A quick 8 pm summary of a delivery that took place at 1:30 pm is bound to be vague and, in some respects, inherently inaccurate. In contrast, a 1:45 pm note that consumes an entire page, noting the time of diagnosis, sequence of efforts to resolve the dystocia, use of vacuum or forceps, number of pop-offs, and who was present in the room is unquestionably superior.

Once mother and infant are stable and under the care of qualified personnel, take sufficient time—even as long as 1 hour—to draft your delivery note. Sit down. Calm down. Strive for clarity. The sequence and timing of events will be important.

The parents’ ability to recall the delivery will be blurred by emotion. If the case goes to trial, your well-documented note, combined with your accurate testimony, will have a significant advantage over what might be the understandably muddled recollections of the parents.

Call for a scrivener

If it seems as though it will be difficult to recall all the details of a delivery, consider calling a nurse or staff member into the room for the sole purpose of documentation once shoulder dystocia is diagnosed. Remember, once dystocia occurs, the risk of a poor outcome and years of litigation increases substantially. Having an extra staff member take notes is a small price to pay for documentation that may later establish your defense. The thinnest paper can sometimes extinguish the hottest litigation flame.

Prepare for a considerable lapse of time

Most states allow a claim to be filed on behalf of a child as late as 2 years after the child reaches the age of majority, which is 18 years in most states. Therefore, a child in many states can file suit as late as his or her 20th birthday. It is not uncommon for the events of an obstetrics case to be 10 or 15 years in the past by the time a claim is filed. Over such a long period, memories fade, radiographs and other imaging studies may get lost in storage, and so on. No matter how busy, tired, or hurried you may be from the events of the day, the most important 30 minutes you can spend are those in which you take time to sit, think, carefully draft, and proofread a delivery summary and check it for consistency against other documents generated during delivery. If necessary, call your partner in to cover you for an hour or two while you get the documentation right. If it helps your practice avoid a lawsuit, it is time well spent.

2. Educate your attorney

This point may seem rudimentary, but I have encountered a number of physicians who allowed their anger over being sued to taint their initial contacts with defense counsel.

A physician who sets aside 3 to 4 hours to meet with counsel, educate the attorney about medical issues, and review the medical literature is a cherished ally and is much more likely to be defended successfully. Physicians who treat the lawsuit as though it is an imposition on their personal or professional life and distance themselves from defense counsel do themselves a great disservice.

3. Be fluent in shoulder dystocia

If you are sued, and your case proceeds to trial—or even to depositions—a number of concepts particular to shoulder dystocia are very likely to arise, and you will be expected to address them coherently and to educate the jury and judge about their proper meaning.

Shoulder dystocia is unpredictable

Be conversant with the literature and statistics that show dystocia to be an unpredictable event.¹

Fetal weight estimates are imprecise

Know the numbers. It is important to be conversant about projected birth weights and lines of demarcation for macrosomic and LGA fetuses. Plaintiff’s counsel and experts may try to obscure the lines between these definitions and terms. Keep your facts and definitions straight.

Also emphasize that ultrasonographic weight estimates are just that—estimates. There is no way to determine precise fetal weight in utero. Some studies suggest that ultrasonography (US) and physician weight estimation via palpation have similar accuracy rates. Do not allow the plaintiff’s attorney or expert to create the impression that US estimates are infallibly accurate.

Restitution of the head is a natural rotation

Understand the concept of “restitution of the head.” Do not allow plaintiff’s counsel to suggest that you turned the child’s head to one side or the other with your hands. Restitution is a natural rotation, and your hands merely guide and support the child’s head in this process. Gentle guiding of the head is appropriate.

The term “downward” is similarly misused. If ever there was a loaded term, it is “downward traction,” a favorite of plaintiff’s attorneys. Downward, as in “out of the birth canal,” versus downward, as in “90-degree angle to the birth canal and toward the floor,” are descriptions frequently misused in testimony and evidence. Be clear that any use of the term downward does not imply that the child’s neck was bent 45 to 90 degrees, with the top of the head inclined toward the floor. If a vague question regarding downward traction arises during the course of a legal case, ask for clarification of the term.

Degree of traction is another poorly understood concept. I am not aware of any reliable study that conclusively proves that major Erb’s palsy occurs when a greater degree of traction is applied and minor Erb’s palsy with a smaller degree of traction. Some counsel will use the fact that most brachial plexus injuries resolve over time to suggest that permanent Erb’s palsy is caused by overwhelming traction. Be prepared to dispute this argument!

Explain stations of the head

It is important that a jury understand that only a few inches separate –3 and +3 stations. Try to prevent plaintiff’s counsel from making the distance between these points seem like a long journey. Tissues stretch, caput occurs, and the station of the head may therefore become difficult to identify with pinpoint accuracy. A nurse’s estimate of –2 and a physician’s estimate of –1 for the same patient may, in fact, be consistent.

Use terminology precisely

If the infant develops a hematoma as a result of vacuum extraction or a similar device, be clear and concise about exactly what the injury is. Don’t let a subdural hematoma be described as a “brain bleed”!

Beware the magic gloves!

Studies in which physicians work on a model using pressure-sensitive gloves tend to suggest that excessive pressure is used. However, when the gloves are used in actual deliveries, pressure tends to be appropriate. Any mention of pressure-sensitive glove studies by plaintiff’s counsel should raise a red flag.

Growth charts are unreliable

Many shoulder dystocia–related trials use growth charts as exhibits. If you are confronted with one of these charts, be certain that you know what type of chart it is and the age and location of the children on whom it was based. Prenatal and postnatal growth charts are not the same. A child who is LGA on a postnatal chart might not be on a prenatal chart.

An expert witness once pointed out to me the existence of some charts from high-altitude cities; on these charts, the 95th percentile is slightly lower because children born at high altitude may be slightly smaller. Use of a high-altitude chart for a marginally LGA child in New York will make that child appear even larger than it is.

Triple-check each chart exhibit to make sure it is accurate and based on reliable data.

4. Don’t lose the case at deposition

You can’t win your case at deposition, but you certainly can lose it. Misplaced words and artless answers can damage your defense irreparably. Work with your attorney to fully explore any medical issues or terms on which the defense hinges. A simple misstatement of fact or misuse of a medically significant term can lock the defense into a difficult position.

Because the deposition is a major aspect of litigation, you should study for it and meet with your counsel well in advance of the date. A preparation session more than a week before your deposition will give you time to mull the issues and resolve any conflicts in your mind. A second session may be necessary to revisit difficult issues.

Know likely points of contention

Medical terminology and the sequence of events are two of the most likely areas of confusion. For example, although most physicians can readily distinguish between suprapubic and fundal pressure, many staff members confuse the two, as do many patients and lay witnesses to the birth. Fundal pressure may increase impaction of the shoulder; suprapubic pressure, correctly applied, is appropriate during the McRoberts maneuver (FIGURE).¹

Some attorneys prefer to have the physician present when witnesses and parents are giving a deposition. This certainly conveys the message that the physician is committed to defense of the case.

If you choose to be present during a deposition, understand that lay witnesses may give inaccurate testimony. If this occurs while you are present, don’t get emotionally involved; do remain a passive observer. Remember, a deposition is not a trial. Although inaccurate testimony can be frustrating to the physician, it will ultimately trap the witness at trial and may be his (or her) undoing.

FIGURE Suprapubic vs fundal pressure

“Fundal pressure may increase impaction of the shoulder; suprapubic pressure (shown here), correctly applied, is appropriate during the McRoberts maneuver”

5. Retain the best expert you can find

Because the credentials and strength of expert opinions are critical to your defense, endeavor to retain the most highly qualified expert possible. Seek out an expert on the standard of care as soon as possible after filing of the lawsuit. Your counsel should be in consultation with this expert early in the case—certainly before your deposition. You don’t want to risk giving testimony that is inconsistent with your expert’s opinion or impossible for your expert to defend.

A highly qualified expert may be someone who has written about dystocia or participated in major studies. He or she also should be active in the delivery of babies and use any instrumentation or devices involved in your case. I recently cross-examined a plaintiff’s expert in a vacuum extraction case who hadn’t used the device since he finished his residency in 1974! This left several jurors with expressions of incredulity on their faces.

If you are practicing in a rural area, the availability of personnel or equipment may be an issue in your case. In such circumstances, an expert from a rural institution may be preferable to an expert from a major metropolitan area.

Scrutinize the expert’s credentials and communication style

Most defense counsel who practice in a specialized area of medicine will have access to the curriculum vitae of several potential experts. Review these documents with your attorney and investigate other cases in which the experts have testified.

If neither you nor your counsel has ever met or seen the expert, it may be helpful to explore whether the expert has ever given videotaped testimony. This will help you evaluate his or her physical appearance, demeanor, and general likeability, all of which influence the jury’s response to the testimony.

Remember, the plaintiff’s case is usually presented first. A jury may first be exposed to the facts of your case through the testimony of the plaintiff’s experts and witnesses, including emotional and at times weeping family members. Your expert will therefore need to refocus and reeducate the jury and dispel the opinions rendered by the plaintiff’s experts. To be successful, your expert must be able to create rapport with the jurors to keep them interested in his or her testimony and opinions. In this regard, your expert’s communication skills are paramount.

6. Be steadfast—the courtroom is a fishbowl!

At trial, you will be stared at, evaluated, and judged even while you are sitting in a chair at the defense table well before your testimony. This may seem unreasonable, capricious, and outrageous…and it is! However, until you take the witness stand, the jury has no other source of information about you.

Jurors are naturally curious. They begin to wonder about the case and, being human, may leap to conclusions. To protect yourself against unfair inferences, be mindful of your behavior, and assume that anything you say or do within two blocks of the courthouse will be seen by a juror. Here are some basic courtroom “don’ts,” culled from personal experience:

• Unless you are handicapped, do not park in a handicapped spot, even for a minute to unload a box of documents. A juror may see you and find your action inconsiderate.
• Don’t wear clothing or jewelry that is significantly more expensive than that worn by the plaintiffs or jurors.
• Be serious but not aloof.
• Remember to teach—not lecture—the jury.
• Take advantage of conference rooms.

Important discussions with counsel and experts should take place in private where there is no chance that a juror will accidentally observe or overhear the conversation.

7. Make exhibits informative, not disturbing

The purpose of a trial exhibit is to illustrate or demonstrate a point to the jurors. Any evidence that is presented must be accurate and based on facts already established in the case. The physician should assist defense counsel in the selection and preparation of exhibits. Here are a few tips:

• Make it easy to use. An exhibit—particularly a medical instrument—must be easy to use. Misusing, breaking, or fumbling with it on the stand is not only embarrassing, it casts doubt on the credibility of the witness. Have you ever seen a doctor accidentally fire a surgical staple into his own palm from an “empty” stapler while demonstrating the device in court? (I have.)
• Make it accurate. There are several types of vacuum extractors. If you choose to bring an exhibit—particularly a medical instrument—into the courtroom, it should be exactly the same type that was used in the delivery. Any variance should be insignificant. In a recent case, a plaintiff’s expert intended to use an outdated vacuum device that was rather large and ungainly and appeared to be far more ominous than the device that was actually used in the delivery. The court precluded its exhibition.
• Make sure it is unambiguous. There is great potential danger in using a defense exhibit that can be misinterpreted or reinterpreted to actually support the plaintiff’s position. Fetal growth charts, charts summarizing medical literature, and similar exhibits all have a potential for reinterpretation.
• Don’t send the wrong message. Photographs, medical instruments, and other exhibits can be gruesome or shocking to a jury. For example, if demonstration of a vacuum extractor is not critical to the defense of a case, the device may be inappropriate for courtroom demonstration. The reason? It may cause jurors to feel uncomfortable or place considerable focus on a minor issue. Any negative aspect of a potential exhibit should be evaluated in determining whether the exhibit will be used in front of the jury.

8. Get to the scene!

If at all possible, make a trip to the exact labor room where the events in question occurred, and take your counsel with you. Like Lieutenant Columbo wandering about, you never know what you might see. Suppose the family claims it was in the waiting room and heard the doctor shouting. How far away is the waiting room? How large is the labor room? Was the bed high enough that a 4-foot 7-inch nurse acted reasonably by standing on a stool to apply suprapubic pressure—despite how odd it seemed to the family?

The physical environment influences perceptions and recollections of witnesses. It’s impossible to know what you’ll find until you visit the location.

9. Never alter your records—never

A physician has a duty to keep accurate records. Never change your records to improve your position. I have seen several cases in which it was alleged that a physician went back and added a small notation to the record. That is a big mistake because many potential plaintiffs obtain their records before the child’s discharge.

If an error in a medical record merits a late correction, contact the risk-management staff and review the issue with them. A separate addendum note addressing and correcting the errant information may be preferred.

Whenever there are two versions of the labor record—especially when they are exhibited side by side in the courtroom—the die is cast, credibility is irreparably shattered, and the case may very well be lost.

10. You can pull a rabbit out of a hat!

The first lawyer I worked for asked me one day, “How do you get a rabbit out of a hat?” The answer? “First you put the rabbit into the hat.”

Preparation is essential to your testimony. Review the questions and responses to be covered during your testimony at length with your counsel. Be familiar with the issues and themes to be covered, and learn to phrase each answer truthfully, appropriately, and confidently.

The witness chair is charged with some invisible magic. Sitting there in front of a judge, jury, and packed courtroom can cause even the most confident and polished witness to become shaken and confused. Never underestimate your need to prepare.

The author reports no financial relationships relevant to this article.

The heightened risk of being sued for a poor outcome—even when you and the obstetric team have delivered excellent care—is a sad reality of ObGyn practice, especially when shoulder dystocia is involved. Not so long ago, some physicians viewed a lawsuit as one of the costs of doing business and considered settlement of claims to avoid disruption to their practice. Today, with insurance rates skyrocketing, settlement is not as palatable, unless a clear breach of the standard of care has occurred. And although only a small percentage of cases ever reach trial, and fewer still go to a jury verdict, don’t be lulled into a false sense of security. A single case can take 5 or more years to make its way through the system.

What can you do to avoid the appearance of negligence and prevent litigation? And what tangential actions on the part of the physician or staff can cast defensible cases into the abyss of negligence? This article addresses these questions, focusing on 10 keys to avert or win a lawsuit involving shoulder dystocia.

Before you begin. Here is one preliminary piece of advice: Be vigilant. Air crash investigators frequently note that a crash occurs when a number of small errors link together. To prevent a poor outcome, it is critical to be alert to even minor inconsistencies in the care you and the obstetric team provide so you can rectify the situation before the small errors link into a disastrous chain.

1. Don’t downplay the “D” word

There are three important rules in medicine: Document, document, document. Yes, you’ve heard many people stress the importance of good notation, and I can back them up: A well-documented chart is a defendant’s best friend. Time and again, I’ve heard defense counsel lamenting—and plaintiff’s counsel exhorting—“if it isn’t documented, it didn’t happen.”

Careful documentation begins early. If a child is expected to be large for gestational age (LGA) or macrosomic, clear documentation of that fact and a plan in the prenatal record to address it during labor and delivery is critical. It also is important to communicate the potential for a large infant to the labor and delivery staff. Consider using a stamp or other indicator to mark the prenatal chart for this potentiality.

Make it legible

Clear handwriting or typed notes add substantial benefit to the defense of a dystocia case. They also help prevent the uncomfortable silence that can overwhelm a courtroom as 12 jurors stare at a witness who is unable to decipher her own notes or those of a colleague. The inability to interpret a note is almost as damaging to a case as the complete lack of a note. If a detail is important enough to warrant documentation, it’s important enough to document legibly.

Sooner is always better

Any shoulder dystocia case that involves injury to the child—whether temporary or permanent—holds significant potential to blossom into litigation. It is important to document the diagnosis of dystocia, steps taken to resolve it, and the outcome—and to do so during the delivery or as soon thereafter as possible.

The importance of this recommendation cannot be overstated. A quick 8 pm summary of a delivery that took place at 1:30 pm is bound to be vague and, in some respects, inherently inaccurate. In contrast, a 1:45 pm note that consumes an entire page, noting the time of diagnosis, sequence of efforts to resolve the dystocia, use of vacuum or forceps, number of pop-offs, and who was present in the room is unquestionably superior.

Once mother and infant are stable and under the care of qualified personnel, take sufficient time—even as long as 1 hour—to draft your delivery note. Sit down. Calm down. Strive for clarity. The sequence and timing of events will be important.

The parents’ ability to recall the delivery will be blurred by emotion. If the case goes to trial, your well-documented note, combined with your accurate testimony, will have a significant advantage over what might be the understandably muddled recollections of the parents.

Call for a scrivener

If it seems as though it will be difficult to recall all the details of a delivery, consider calling a nurse or staff member into the room for the sole purpose of documentation once shoulder dystocia is diagnosed. Remember, once dystocia occurs, the risk of a poor outcome and years of litigation increases substantially. Having an extra staff member take notes is a small price to pay for documentation that may later establish your defense. The thinnest paper can sometimes extinguish the hottest litigation flame.

Prepare for a considerable lapse of time

Most states allow a claim to be filed on behalf of a child as late as 2 years after the child reaches the age of majority, which is 18 years in most states. Therefore, a child in many states can file suit as late as his or her 20th birthday. It is not uncommon for the events of an obstetrics case to be 10 or 15 years in the past by the time a claim is filed. Over such a long period, memories fade, radiographs and other imaging studies may get lost in storage, and so on. No matter how busy, tired, or hurried you may be from the events of the day, the most important 30 minutes you can spend are those in which you take time to sit, think, carefully draft, and proofread a delivery summary and check it for consistency against other documents generated during delivery. If necessary, call your partner in to cover you for an hour or two while you get the documentation right. If it helps your practice avoid a lawsuit, it is time well spent.

2. Educate your attorney

This point may seem rudimentary, but I have encountered a number of physicians who allowed their anger over being sued to taint their initial contacts with defense counsel.

A physician who sets aside 3 to 4 hours to meet with counsel, educate the attorney about medical issues, and review the medical literature is a cherished ally and is much more likely to be defended successfully. Physicians who treat the lawsuit as though it is an imposition on their personal or professional life and distance themselves from defense counsel do themselves a great disservice.

3. Be fluent in shoulder dystocia

If you are sued, and your case proceeds to trial—or even to depositions—a number of concepts particular to shoulder dystocia are very likely to arise, and you will be expected to address them coherently and to educate the jury and judge about their proper meaning.

Shoulder dystocia is unpredictable

Be conversant with the literature and statistics that show dystocia to be an unpredictable event.¹

Fetal weight estimates are imprecise

Know the numbers. It is important to be conversant about projected birth weights and lines of demarcation for macrosomic and LGA fetuses. Plaintiff’s counsel and experts may try to obscure the lines between these definitions and terms. Keep your facts and definitions straight.

Also emphasize that ultrasonographic weight estimates are just that—estimates. There is no way to determine precise fetal weight in utero. Some studies suggest that ultrasonography (US) and physician weight estimation via palpation have similar accuracy rates. Do not allow the plaintiff’s attorney or expert to create the impression that US estimates are infallibly accurate.

Restitution of the head is a natural rotation

Understand the concept of “restitution of the head.” Do not allow plaintiff’s counsel to suggest that you turned the child’s head to one side or the other with your hands. Restitution is a natural rotation, and your hands merely guide and support the child’s head in this process. Gentle guiding of the head is appropriate.

The term “downward” is similarly misused. If ever there was a loaded term, it is “downward traction,” a favorite of plaintiff’s attorneys. Downward, as in “out of the birth canal,” versus downward, as in “90-degree angle to the birth canal and toward the floor,” are descriptions frequently misused in testimony and evidence. Be clear that any use of the term downward does not imply that the child’s neck was bent 45 to 90 degrees, with the top of the head inclined toward the floor. If a vague question regarding downward traction arises during the course of a legal case, ask for clarification of the term.

Degree of traction is another poorly understood concept. I am not aware of any reliable study that conclusively proves that major Erb’s palsy occurs when a greater degree of traction is applied and minor Erb’s palsy with a smaller degree of traction. Some counsel will use the fact that most brachial plexus injuries resolve over time to suggest that permanent Erb’s palsy is caused by overwhelming traction. Be prepared to dispute this argument!

Explain stations of the head

It is important that a jury understand that only a few inches separate –3 and +3 stations. Try to prevent plaintiff’s counsel from making the distance between these points seem like a long journey. Tissues stretch, caput occurs, and the station of the head may therefore become difficult to identify with pinpoint accuracy. A nurse’s estimate of –2 and a physician’s estimate of –1 for the same patient may, in fact, be consistent.

Use terminology precisely

If the infant develops a hematoma as a result of vacuum extraction or a similar device, be clear and concise about exactly what the injury is. Don’t let a subdural hematoma be described as a “brain bleed”!

Beware the magic gloves!

Studies in which physicians work on a model using pressure-sensitive gloves tend to suggest that excessive pressure is used. However, when the gloves are used in actual deliveries, pressure tends to be appropriate. Any mention of pressure-sensitive glove studies by plaintiff’s counsel should raise a red flag.

Growth charts are unreliable

Many shoulder dystocia–related trials use growth charts as exhibits. If you are confronted with one of these charts, be certain that you know what type of chart it is and the age and location of the children on whom it was based. Prenatal and postnatal growth charts are not the same. A child who is LGA on a postnatal chart might not be on a prenatal chart.

An expert witness once pointed out to me the existence of some charts from high-altitude cities; on these charts, the 95th percentile is slightly lower because children born at high altitude may be slightly smaller. Use of a high-altitude chart for a marginally LGA child in New York will make that child appear even larger than it is.

Triple-check each chart exhibit to make sure it is accurate and based on reliable data.

4. Don’t lose the case at deposition

You can’t win your case at deposition, but you certainly can lose it. Misplaced words and artless answers can damage your defense irreparably. Work with your attorney to fully explore any medical issues or terms on which the defense hinges. A simple misstatement of fact or misuse of a medically significant term can lock the defense into a difficult position.

Because the deposition is a major aspect of litigation, you should study for it and meet with your counsel well in advance of the date. A preparation session more than a week before your deposition will give you time to mull the issues and resolve any conflicts in your mind. A second session may be necessary to revisit difficult issues.

Know likely points of contention

Medical terminology and the sequence of events are two of the most likely areas of confusion. For example, although most physicians can readily distinguish between suprapubic and fundal pressure, many staff members confuse the two, as do many patients and lay witnesses to the birth. Fundal pressure may increase impaction of the shoulder; suprapubic pressure, correctly applied, is appropriate during the McRoberts maneuver (FIGURE).¹

Some attorneys prefer to have the physician present when witnesses and parents are giving a deposition. This certainly conveys the message that the physician is committed to defense of the case.

If you choose to be present during a deposition, understand that lay witnesses may give inaccurate testimony. If this occurs while you are present, don’t get emotionally involved; do remain a passive observer. Remember, a deposition is not a trial. Although inaccurate testimony can be frustrating to the physician, it will ultimately trap the witness at trial and may be his (or her) undoing.

FIGURE Suprapubic vs fundal pressure

“Fundal pressure may increase impaction of the shoulder; suprapubic pressure (shown here), correctly applied, is appropriate during the McRoberts maneuver”

5. Retain the best expert you can find

Because the credentials and strength of expert opinions are critical to your defense, endeavor to retain the most highly qualified expert possible. Seek out an expert on the standard of care as soon as possible after filing of the lawsuit. Your counsel should be in consultation with this expert early in the case—certainly before your deposition. You don’t want to risk giving testimony that is inconsistent with your expert’s opinion or impossible for your expert to defend.

A highly qualified expert may be someone who has written about dystocia or participated in major studies. He or she also should be active in the delivery of babies and use any instrumentation or devices involved in your case. I recently cross-examined a plaintiff’s expert in a vacuum extraction case who hadn’t used the device since he finished his residency in 1974! This left several jurors with expressions of incredulity on their faces.

If you are practicing in a rural area, the availability of personnel or equipment may be an issue in your case. In such circumstances, an expert from a rural institution may be preferable to an expert from a major metropolitan area.

Scrutinize the expert’s credentials and communication style

Most defense counsel who practice in a specialized area of medicine will have access to the curriculum vitae of several potential experts. Review these documents with your attorney and investigate other cases in which the experts have testified.

If neither you nor your counsel has ever met or seen the expert, it may be helpful to explore whether the expert has ever given videotaped testimony. This will help you evaluate his or her physical appearance, demeanor, and general likeability, all of which influence the jury’s response to the testimony.

Remember, the plaintiff’s case is usually presented first. A jury may first be exposed to the facts of your case through the testimony of the plaintiff’s experts and witnesses, including emotional and at times weeping family members. Your expert will therefore need to refocus and reeducate the jury and dispel the opinions rendered by the plaintiff’s experts. To be successful, your expert must be able to create rapport with the jurors to keep them interested in his or her testimony and opinions. In this regard, your expert’s communication skills are paramount.

6. Be steadfast—the courtroom is a fishbowl!

At trial, you will be stared at, evaluated, and judged even while you are sitting in a chair at the defense table well before your testimony. This may seem unreasonable, capricious, and outrageous…and it is! However, until you take the witness stand, the jury has no other source of information about you.

Jurors are naturally curious. They begin to wonder about the case and, being human, may leap to conclusions. To protect yourself against unfair inferences, be mindful of your behavior, and assume that anything you say or do within two blocks of the courthouse will be seen by a juror. Here are some basic courtroom “don’ts,” culled from personal experience:

• Unless you are handicapped, do not park in a handicapped spot, even for a minute to unload a box of documents. A juror may see you and find your action inconsiderate.
• Don’t wear clothing or jewelry that is significantly more expensive than that worn by the plaintiffs or jurors.
• Be serious but not aloof.
• Remember to teach—not lecture—the jury.
• Take advantage of conference rooms.

Important discussions with counsel and experts should take place in private where there is no chance that a juror will accidentally observe or overhear the conversation.

7. Make exhibits informative, not disturbing

The purpose of a trial exhibit is to illustrate or demonstrate a point to the jurors. Any evidence that is presented must be accurate and based on facts already established in the case. The physician should assist defense counsel in the selection and preparation of exhibits. Here are a few tips:

• Make it easy to use. An exhibit—particularly a medical instrument—must be easy to use. Misusing, breaking, or fumbling with it on the stand is not only embarrassing, it casts doubt on the credibility of the witness. Have you ever seen a doctor accidentally fire a surgical staple into his own palm from an “empty” stapler while demonstrating the device in court? (I have.)
• Make it accurate. There are several types of vacuum extractors. If you choose to bring an exhibit—particularly a medical instrument—into the courtroom, it should be exactly the same type that was used in the delivery. Any variance should be insignificant. In a recent case, a plaintiff’s expert intended to use an outdated vacuum device that was rather large and ungainly and appeared to be far more ominous than the device that was actually used in the delivery. The court precluded its exhibition.
• Make sure it is unambiguous. There is great potential danger in using a defense exhibit that can be misinterpreted or reinterpreted to actually support the plaintiff’s position. Fetal growth charts, charts summarizing medical literature, and similar exhibits all have a potential for reinterpretation.
• Don’t send the wrong message. Photographs, medical instruments, and other exhibits can be gruesome or shocking to a jury. For example, if demonstration of a vacuum extractor is not critical to the defense of a case, the device may be inappropriate for courtroom demonstration. The reason? It may cause jurors to feel uncomfortable or place considerable focus on a minor issue. Any negative aspect of a potential exhibit should be evaluated in determining whether the exhibit will be used in front of the jury.

8. Get to the scene!

If at all possible, make a trip to the exact labor room where the events in question occurred, and take your counsel with you. Like Lieutenant Columbo wandering about, you never know what you might see. Suppose the family claims it was in the waiting room and heard the doctor shouting. How far away is the waiting room? How large is the labor room? Was the bed high enough that a 4-foot 7-inch nurse acted reasonably by standing on a stool to apply suprapubic pressure—despite how odd it seemed to the family?

The physical environment influences perceptions and recollections of witnesses. It’s impossible to know what you’ll find until you visit the location.

9. Never alter your records—never

A physician has a duty to keep accurate records. Never change your records to improve your position. I have seen several cases in which it was alleged that a physician went back and added a small notation to the record. That is a big mistake because many potential plaintiffs obtain their records before the child’s discharge.

If an error in a medical record merits a late correction, contact the risk-management staff and review the issue with them. A separate addendum note addressing and correcting the errant information may be preferred.

Whenever there are two versions of the labor record—especially when they are exhibited side by side in the courtroom—the die is cast, credibility is irreparably shattered, and the case may very well be lost.

10. You can pull a rabbit out of a hat!

The first lawyer I worked for asked me one day, “How do you get a rabbit out of a hat?” The answer? “First you put the rabbit into the hat.”

Preparation is essential to your testimony. Review the questions and responses to be covered during your testimony at length with your counsel. Be familiar with the issues and themes to be covered, and learn to phrase each answer truthfully, appropriately, and confidently.

The witness chair is charged with some invisible magic. Sitting there in front of a judge, jury, and packed courtroom can cause even the most confident and polished witness to become shaken and confused. Never underestimate your need to prepare.

The author reports no financial relationships relevant to this article.

The heightened risk of being sued for a poor outcome—even when you and the obstetric team have delivered excellent care—is a sad reality of ObGyn practice, especially when shoulder dystocia is involved. Not so long ago, some physicians viewed a lawsuit as one of the costs of doing business and considered settlement of claims to avoid disruption to their practice. Today, with insurance rates skyrocketing, settlement is not as palatable, unless a clear breach of the standard of care has occurred. And although only a small percentage of cases ever reach trial, and fewer still go to a jury verdict, don’t be lulled into a false sense of security. A single case can take 5 or more years to make its way through the system.

What can you do to avoid the appearance of negligence and prevent litigation? And what tangential actions on the part of the physician or staff can cast defensible cases into the abyss of negligence? This article addresses these questions, focusing on 10 keys to avert or win a lawsuit involving shoulder dystocia.

Before you begin. Here is one preliminary piece of advice: Be vigilant. Air crash investigators frequently note that a crash occurs when a number of small errors link together. To prevent a poor outcome, it is critical to be alert to even minor inconsistencies in the care you and the obstetric team provide so you can rectify the situation before the small errors link into a disastrous chain.

1. Don’t downplay the “D” word

There are three important rules in medicine: Document, document, document. Yes, you’ve heard many people stress the importance of good notation, and I can back them up: A well-documented chart is a defendant’s best friend. Time and again, I’ve heard defense counsel lamenting—and plaintiff’s counsel exhorting—“if it isn’t documented, it didn’t happen.”

Careful documentation begins early. If a child is expected to be large for gestational age (LGA) or macrosomic, clear documentation of that fact and a plan in the prenatal record to address it during labor and delivery is critical. It also is important to communicate the potential for a large infant to the labor and delivery staff. Consider using a stamp or other indicator to mark the prenatal chart for this potentiality.

Make it legible

Clear handwriting or typed notes add substantial benefit to the defense of a dystocia case. They also help prevent the uncomfortable silence that can overwhelm a courtroom as 12 jurors stare at a witness who is unable to decipher her own notes or those of a colleague. The inability to interpret a note is almost as damaging to a case as the complete lack of a note. If a detail is important enough to warrant documentation, it’s important enough to document legibly.

Sooner is always better

Any shoulder dystocia case that involves injury to the child—whether temporary or permanent—holds significant potential to blossom into litigation. It is important to document the diagnosis of dystocia, steps taken to resolve it, and the outcome—and to do so during the delivery or as soon thereafter as possible.

The importance of this recommendation cannot be overstated. A quick 8 pm summary of a delivery that took place at 1:30 pm is bound to be vague and, in some respects, inherently inaccurate. In contrast, a 1:45 pm note that consumes an entire page, noting the time of diagnosis, sequence of efforts to resolve the dystocia, use of vacuum or forceps, number of pop-offs, and who was present in the room is unquestionably superior.

Once mother and infant are stable and under the care of qualified personnel, take sufficient time—even as long as 1 hour—to draft your delivery note. Sit down. Calm down. Strive for clarity. The sequence and timing of events will be important.

The parents’ ability to recall the delivery will be blurred by emotion. If the case goes to trial, your well-documented note, combined with your accurate testimony, will have a significant advantage over what might be the understandably muddled recollections of the parents.

Call for a scrivener

If it seems as though it will be difficult to recall all the details of a delivery, consider calling a nurse or staff member into the room for the sole purpose of documentation once shoulder dystocia is diagnosed. Remember, once dystocia occurs, the risk of a poor outcome and years of litigation increases substantially. Having an extra staff member take notes is a small price to pay for documentation that may later establish your defense. The thinnest paper can sometimes extinguish the hottest litigation flame.

Prepare for a considerable lapse of time

Most states allow a claim to be filed on behalf of a child as late as 2 years after the child reaches the age of majority, which is 18 years in most states. Therefore, a child in many states can file suit as late as his or her 20th birthday. It is not uncommon for the events of an obstetrics case to be 10 or 15 years in the past by the time a claim is filed. Over such a long period, memories fade, radiographs and other imaging studies may get lost in storage, and so on. No matter how busy, tired, or hurried you may be from the events of the day, the most important 30 minutes you can spend are those in which you take time to sit, think, carefully draft, and proofread a delivery summary and check it for consistency against other documents generated during delivery. If necessary, call your partner in to cover you for an hour or two while you get the documentation right. If it helps your practice avoid a lawsuit, it is time well spent.

2. Educate your attorney

This point may seem rudimentary, but I have encountered a number of physicians who allowed their anger over being sued to taint their initial contacts with defense counsel.

A physician who sets aside 3 to 4 hours to meet with counsel, educate the attorney about medical issues, and review the medical literature is a cherished ally and is much more likely to be defended successfully. Physicians who treat the lawsuit as though it is an imposition on their personal or professional life and distance themselves from defense counsel do themselves a great disservice.

3. Be fluent in shoulder dystocia

If you are sued, and your case proceeds to trial—or even to depositions—a number of concepts particular to shoulder dystocia are very likely to arise, and you will be expected to address them coherently and to educate the jury and judge about their proper meaning.

Shoulder dystocia is unpredictable

Be conversant with the literature and statistics that show dystocia to be an unpredictable event.¹

Fetal weight estimates are imprecise

Know the numbers. It is important to be conversant about projected birth weights and lines of demarcation for macrosomic and LGA fetuses. Plaintiff’s counsel and experts may try to obscure the lines between these definitions and terms. Keep your facts and definitions straight.

Also emphasize that ultrasonographic weight estimates are just that—estimates. There is no way to determine precise fetal weight in utero. Some studies suggest that ultrasonography (US) and physician weight estimation via palpation have similar accuracy rates. Do not allow the plaintiff’s attorney or expert to create the impression that US estimates are infallibly accurate.

Restitution of the head is a natural rotation

Understand the concept of “restitution of the head.” Do not allow plaintiff’s counsel to suggest that you turned the child’s head to one side or the other with your hands. Restitution is a natural rotation, and your hands merely guide and support the child’s head in this process. Gentle guiding of the head is appropriate.

The term “downward” is similarly misused. If ever there was a loaded term, it is “downward traction,” a favorite of plaintiff’s attorneys. Downward, as in “out of the birth canal,” versus downward, as in “90-degree angle to the birth canal and toward the floor,” are descriptions frequently misused in testimony and evidence. Be clear that any use of the term downward does not imply that the child’s neck was bent 45 to 90 degrees, with the top of the head inclined toward the floor. If a vague question regarding downward traction arises during the course of a legal case, ask for clarification of the term.

Degree of traction is another poorly understood concept. I am not aware of any reliable study that conclusively proves that major Erb’s palsy occurs when a greater degree of traction is applied and minor Erb’s palsy with a smaller degree of traction. Some counsel will use the fact that most brachial plexus injuries resolve over time to suggest that permanent Erb’s palsy is caused by overwhelming traction. Be prepared to dispute this argument!

Explain stations of the head

It is important that a jury understand that only a few inches separate –3 and +3 stations. Try to prevent plaintiff’s counsel from making the distance between these points seem like a long journey. Tissues stretch, caput occurs, and the station of the head may therefore become difficult to identify with pinpoint accuracy. A nurse’s estimate of –2 and a physician’s estimate of –1 for the same patient may, in fact, be consistent.

Use terminology precisely

If the infant develops a hematoma as a result of vacuum extraction or a similar device, be clear and concise about exactly what the injury is. Don’t let a subdural hematoma be described as a “brain bleed”!

Beware the magic gloves!

Studies in which physicians work on a model using pressure-sensitive gloves tend to suggest that excessive pressure is used. However, when the gloves are used in actual deliveries, pressure tends to be appropriate. Any mention of pressure-sensitive glove studies by plaintiff’s counsel should raise a red flag.

Growth charts are unreliable

Many shoulder dystocia–related trials use growth charts as exhibits. If you are confronted with one of these charts, be certain that you know what type of chart it is and the age and location of the children on whom it was based. Prenatal and postnatal growth charts are not the same. A child who is LGA on a postnatal chart might not be on a prenatal chart.

An expert witness once pointed out to me the existence of some charts from high-altitude cities; on these charts, the 95th percentile is slightly lower because children born at high altitude may be slightly smaller. Use of a high-altitude chart for a marginally LGA child in New York will make that child appear even larger than it is.

Triple-check each chart exhibit to make sure it is accurate and based on reliable data.

4. Don’t lose the case at deposition

You can’t win your case at deposition, but you certainly can lose it. Misplaced words and artless answers can damage your defense irreparably. Work with your attorney to fully explore any medical issues or terms on which the defense hinges. A simple misstatement of fact or misuse of a medically significant term can lock the defense into a difficult position.

Because the deposition is a major aspect of litigation, you should study for it and meet with your counsel well in advance of the date. A preparation session more than a week before your deposition will give you time to mull the issues and resolve any conflicts in your mind. A second session may be necessary to revisit difficult issues.

Know likely points of contention

Medical terminology and the sequence of events are two of the most likely areas of confusion. For example, although most physicians can readily distinguish between suprapubic and fundal pressure, many staff members confuse the two, as do many patients and lay witnesses to the birth. Fundal pressure may increase impaction of the shoulder; suprapubic pressure, correctly applied, is appropriate during the McRoberts maneuver (FIGURE).¹

Some attorneys prefer to have the physician present when witnesses and parents are giving a deposition. This certainly conveys the message that the physician is committed to defense of the case.

If you choose to be present during a deposition, understand that lay witnesses may give inaccurate testimony. If this occurs while you are present, don’t get emotionally involved; do remain a passive observer. Remember, a deposition is not a trial. Although inaccurate testimony can be frustrating to the physician, it will ultimately trap the witness at trial and may be his (or her) undoing.

FIGURE Suprapubic vs fundal pressure

“Fundal pressure may increase impaction of the shoulder; suprapubic pressure (shown here), correctly applied, is appropriate during the McRoberts maneuver”

5. Retain the best expert you can find

Because the credentials and strength of expert opinions are critical to your defense, endeavor to retain the most highly qualified expert possible. Seek out an expert on the standard of care as soon as possible after filing of the lawsuit. Your counsel should be in consultation with this expert early in the case—certainly before your deposition. You don’t want to risk giving testimony that is inconsistent with your expert’s opinion or impossible for your expert to defend.

A highly qualified expert may be someone who has written about dystocia or participated in major studies. He or she also should be active in the delivery of babies and use any instrumentation or devices involved in your case. I recently cross-examined a plaintiff’s expert in a vacuum extraction case who hadn’t used the device since he finished his residency in 1974! This left several jurors with expressions of incredulity on their faces.

If you are practicing in a rural area, the availability of personnel or equipment may be an issue in your case. In such circumstances, an expert from a rural institution may be preferable to an expert from a major metropolitan area.

Scrutinize the expert’s credentials and communication style

Most defense counsel who practice in a specialized area of medicine will have access to the curriculum vitae of several potential experts. Review these documents with your attorney and investigate other cases in which the experts have testified.

If neither you nor your counsel has ever met or seen the expert, it may be helpful to explore whether the expert has ever given videotaped testimony. This will help you evaluate his or her physical appearance, demeanor, and general likeability, all of which influence the jury’s response to the testimony.

Remember, the plaintiff’s case is usually presented first. A jury may first be exposed to the facts of your case through the testimony of the plaintiff’s experts and witnesses, including emotional and at times weeping family members. Your expert will therefore need to refocus and reeducate the jury and dispel the opinions rendered by the plaintiff’s experts. To be successful, your expert must be able to create rapport with the jurors to keep them interested in his or her testimony and opinions. In this regard, your expert’s communication skills are paramount.

6. Be steadfast—the courtroom is a fishbowl!

At trial, you will be stared at, evaluated, and judged even while you are sitting in a chair at the defense table well before your testimony. This may seem unreasonable, capricious, and outrageous…and it is! However, until you take the witness stand, the jury has no other source of information about you.

Jurors are naturally curious. They begin to wonder about the case and, being human, may leap to conclusions. To protect yourself against unfair inferences, be mindful of your behavior, and assume that anything you say or do within two blocks of the courthouse will be seen by a juror. Here are some basic courtroom “don’ts,” culled from personal experience:

• Unless you are handicapped, do not park in a handicapped spot, even for a minute to unload a box of documents. A juror may see you and find your action inconsiderate.
• Don’t wear clothing or jewelry that is significantly more expensive than that worn by the plaintiffs or jurors.
• Be serious but not aloof.
• Remember to teach—not lecture—the jury.
• Take advantage of conference rooms.

Important discussions with counsel and experts should take place in private where there is no chance that a juror will accidentally observe or overhear the conversation.

7. Make exhibits informative, not disturbing

The purpose of a trial exhibit is to illustrate or demonstrate a point to the jurors. Any evidence that is presented must be accurate and based on facts already established in the case. The physician should assist defense counsel in the selection and preparation of exhibits. Here are a few tips:

• Make it easy to use. An exhibit—particularly a medical instrument—must be easy to use. Misusing, breaking, or fumbling with it on the stand is not only embarrassing, it casts doubt on the credibility of the witness. Have you ever seen a doctor accidentally fire a surgical staple into his own palm from an “empty” stapler while demonstrating the device in court? (I have.)
• Make it accurate. There are several types of vacuum extractors. If you choose to bring an exhibit—particularly a medical instrument—into the courtroom, it should be exactly the same type that was used in the delivery. Any variance should be insignificant. In a recent case, a plaintiff’s expert intended to use an outdated vacuum device that was rather large and ungainly and appeared to be far more ominous than the device that was actually used in the delivery. The court precluded its exhibition.
• Make sure it is unambiguous. There is great potential danger in using a defense exhibit that can be misinterpreted or reinterpreted to actually support the plaintiff’s position. Fetal growth charts, charts summarizing medical literature, and similar exhibits all have a potential for reinterpretation.
• Don’t send the wrong message. Photographs, medical instruments, and other exhibits can be gruesome or shocking to a jury. For example, if demonstration of a vacuum extractor is not critical to the defense of a case, the device may be inappropriate for courtroom demonstration. The reason? It may cause jurors to feel uncomfortable or place considerable focus on a minor issue. Any negative aspect of a potential exhibit should be evaluated in determining whether the exhibit will be used in front of the jury.

8. Get to the scene!

If at all possible, make a trip to the exact labor room where the events in question occurred, and take your counsel with you. Like Lieutenant Columbo wandering about, you never know what you might see. Suppose the family claims it was in the waiting room and heard the doctor shouting. How far away is the waiting room? How large is the labor room? Was the bed high enough that a 4-foot 7-inch nurse acted reasonably by standing on a stool to apply suprapubic pressure—despite how odd it seemed to the family?

The physical environment influences perceptions and recollections of witnesses. It’s impossible to know what you’ll find until you visit the location.

9. Never alter your records—never

A physician has a duty to keep accurate records. Never change your records to improve your position. I have seen several cases in which it was alleged that a physician went back and added a small notation to the record. That is a big mistake because many potential plaintiffs obtain their records before the child’s discharge.

If an error in a medical record merits a late correction, contact the risk-management staff and review the issue with them. A separate addendum note addressing and correcting the errant information may be preferred.

Whenever there are two versions of the labor record—especially when they are exhibited side by side in the courtroom—the die is cast, credibility is irreparably shattered, and the case may very well be lost.

10. You can pull a rabbit out of a hat!

The first lawyer I worked for asked me one day, “How do you get a rabbit out of a hat?” The answer? “First you put the rabbit into the hat.”

Preparation is essential to your testimony. Review the questions and responses to be covered during your testimony at length with your counsel. Be familiar with the issues and themes to be covered, and learn to phrase each answer truthfully, appropriately, and confidently.

The witness chair is charged with some invisible magic. Sitting there in front of a judge, jury, and packed courtroom can cause even the most confident and polished witness to become shaken and confused. Never underestimate your need to prepare.