March 2004

Attitude counts

by Timothy Feuling

When you're called into court on a malpractice charge, your most valuable asset is your credibility, which is why the most important rule of risk management is to NEVER alter your records in any way.

You might think your credentials, experience, expertise or education provides the second most valuable asset. In fact, all these things are less important than your personality ‑‑ how you come across to the jury. If the jury likes and trusts you, it's more apt to find in your favor.

Getting a jury to react favorably to you can be like walking a tightrope without a net. You must strike just the right balance between professionalism and compassion, confidence and arrogance. You have to be able to educate its members without talking down to them, and counter the plaintiff's arguments without sounding hostile.

This isn't always easy to do. Your normal reaction may be anger and frustration when confronted by an "expert witness" who tells the jury you're guilty because you didn't correctly diagnose the patient's disease condition, implies that vertebral subluxations don't exist, or suggests you should have referred the patient to a medical doctor after three visits.

Often, this witness is someone who judged the case solely on the basis of your records without ever having seen your patient. It may even be a "professional" witness who hasn't practiced chiropractic or medicine in years! Or, it may be a D.C., known for his or her complete adherence to the "Mercy Guidelines," who shows an overt animosity to subluxation‑based chiropractic.

In any of these cases, it's common to want to react emotionally, expressing your disappointment or outrage. If your opponent is a medical doctor, you might want to go off on a tangent reminding the individual (and the jury) how dangerous medicine can be. If it's a D.C. testifying against you, the temptation might be to denounce him or her as a "medical wannabe" or some other colorful epithet.

Yet, this is the worst thing you can do. If you are perceived as combative or arrogant, you will lose the good will of the jury, and probably the case. "If you want to sink your malpractice defense, try a display of arrogance," a Medical Economics article warned. "Short of changing your records or lying in court, a haughty attitude may be the most effective way to turn a jury against you."

Author Lawrence Martin, M.D., reinforces that advice in his book, "The House Officer's Survival Guide." He notes, "The biggest mistake doctors make in depositions occurs when they try to show how much smarter they are than the lawyer asking questions. Without verbalizing it, physicians sometimes display an arrogant, angry attitude: 'How can you, a mere lawyer, dare to ask me questions about medical judgment?' This attitude only hurts the doctor's case, particularly if it shows up in the courtroom. Juries and judges don't like that attitude in anyone, especially in doctors."

If you're disputing a medical doctor's testimony, you have an added challenge since you have to deal with people's automatic tendency to give more credence to the testimony of a medical doctor. Although the public's attitude is changing, many people still think of medical doctors as the authorities in health care. This is not the time to try to change that attitude completely. Berating all of medicine will only alienate the jurors.

Instead, you need to remain calm and composed at all times, answering questions in a civil and polite tone. Most of all, you need to show that you approached the case with compassion and a true dedication to helping the patient. This attitude can even help win over jurors who aren't convinced about the merits of your case in general.

As New York City plaintiff's attorney Stephen H. Mackauf, noted, in the Medical Economics article: "Juries will forgive doctors for malpractice, no matter what the law says, if the doctor really seems to be caring, attentive, and decent. If the jurors think, 'Well, he really did screw up. But he's such a good guy, and he's really being straightforward with us, and he tries so hard every day, then they usually find for the doctor."

SOURCES:

"The House Officer's Survival Guide: Rules, Laws, Lists and Other Medical Musings," by Lawrence Martin, M.D.

"How doctors sabotage their own defenses," by Susan Harrington Preston. Medical Economics, July 26, 1999.

(Timothy J. Feuling is president of Chiropractic Benefit Services (CBS) and a member of the Board of Directors of the World Chiropractic Alliance. He assists doctors in maximizing their practices through the proper choice of insurance and related services. Doctors may contact him with questions, comments, and requests for insurance quotes at 2950 N. Dobson Rd. Ste. 1, Chandler, AZ 85224, by phone at 800‑883‑0412 or by e‑mail: feuling@cbsmalpractice.com).