AAOS Bulletin - April, 2005

Doctors, lawyers go on trial at Annual Meeting

Mock trial shows need for preparation, good attitude

By Kathleen Misovic

AAOS fellow Charles Carroll IV, MD, was calm, prepared and respectful when he testified earlier this year in a medical liability trial. His performance was so professional, it was easy to overlook he wasn’t testifying in a real trial but instead participating in a mock trial conducted at the 2005 Annual Meeting as part of an instructional course on expert witness testimony.

Dr. Carroll, an associate professor of clinical orthopaedic surgery at Northwestern University in Evanston, Ill., played the role of an expert witness for the defense. Timothy Nickels, JD, a partner in a Chicago law firm, played the defense attorney, and Paul Waldner, JD, who has a legal practice in Houston, served as the attorney for the fictional plaintiff. There was neither judge nor jury present, but the room was filled with concerned orthopaedic surgeons.

(From left to right) Moderator David D. Teuscher, MD, chair of the AAOS Professional Liability Committee and Timothy Nickles, JD, listen as Paul Waldner, JD, questions Charles Carroll IV, MD, during the mock trial.

The case involved a fictional 42-year-old data entry clerk and her orthopaedic surgeon, Dr. John Jacobsen. The plaintiff’s lawsuit claimed that she was totally disabled after he performed a bilateral endoscopic carpal tunnel release on her.

Under questioning from both the defense and plaintiff attorneys, Dr. Carroll stated that Dr. Jacobsen, in his opinion, complied with accepted standards of care and was not negligent. He stated that the patient was an appropriate candidate for the surgery, and that the injuries she suffered were risks inherent to the surgery and not brought about by negligence by Dr. Jacobsen.

Preparation is key

Before the mock trial, Dr. Carroll, along with attorneys Nickels and Waldner, offered tips on serving as an effective expert witness. Nickels said the most important tip he can offer for effective testimony is to prepare ahead.

“Meet with the attorney you’re appearing for and don’t speak with anyone else about the case besides that attorney,” Nickels advised. “Watch videotapes that offer tips on testifying and practice your testimony using role playing exercises. You may even want to videotape yourself in these exercises.”

Dr. Carroll stressed that it’s important to come across as calm and not arrogant. “Don’t be flippant. Maintain a pleasant demeanor, even when you’re stressed,” he said.

Both Nickels and Dr. Carroll reminded members that if they find themselves giving expert testimony, they should be sure to dress neatly to make a good impression. No matter how badly you feel the plaintiff’s attorney may be treating you, be polite and respectful to everyone in the courtroom, they advised.

Another sound piece of advice is to know your professional limits. If you don’t feel qualified to answer a question, state so politely instead of refusing to reply.

Don’t fall into common traps

Waldner said the most frequent testifying mistakes doctors make include not being prepared and not listening to the question posed to them. “Don’t read documents, stare at the ceiling or look at your watch while the questioner’s talking to you,” he advised. “Look at the speaker and watch his or her facial expressions.”

Another common mistake to avoid is fighting the cross-examiner. “When you fight the cross-examiner, you turn the whole thing into a debate,” Waldner said. “Although some physicians may be able to out-debate lawyers, most cannot. During cross-examinations, concede what should be conceded and stand your ground firmly on those issues of which you are assured you’re right.”

Waldner assured the audience that they aren’t the only professionals at risk of being sued. “More claims are actually brought against attorneys than doctors than for malpractice,” he said, to a round of applause.

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