Get on the stand, raise your hand, and tell the truth. Sounds simple. But don’t count on it. Attorneys can pull out all the stops to turn things their way…and turn you upside down. It might feel like trickery, but in essence, they are simply doing their jobs.
But, says Lisa Ferrara, Ph.D., founder of OrthoKinetic Technologies and OrthoKinetic Testing Technologies, it is your job to be prepared for them. Dr. Ferrara, who has served as an expert witness for the defense and plaintiff, says, “Sometimes a surgeon ends up as an expert witness because he or she was deposed as part of a lawsuit involving one of his/her patients (e.g., vehicular accident/injury). Fundamentally, it’s not about what you know…it’s about how the other side can win. It almost becomes a game—one that takes a long time because there is a lot of money on the table. It is not what you say, but how you say it.”
Don’t offer yourself up on a silver platter, advises Dr. Ferrara. “It is too facile to say, ‘Just go in and tell the truth.’ Why? Because so much is taken out of context. For example, the attorney may say, ‘Do you feel that this book is authoritative?’ about a piece of literature you may have referenced. If you say, ‘yes, ’ they will try to prove it wrong. They will then say, ‘But you said this is authoritative.’ It is better to just say, ‘This is a good piece of work for reference purposes.’”
If you are asked a ‘yes’ or ‘no’ question, don’t elaborate. Stick with either a ‘yes’ or ‘no’ if possible. If it is not a black and white answer, use phrases such as ‘highly probable’ or ‘most likely’…never use terms like ‘100%’ or ‘always.
Preparing for the Stand
Some preliminaries are in order before you get to the verbal hammering, however. Dr. Ferrara: “Whoever is compensating you should provide a contract before you begin, so that your role is clear. For example, the contract defines you as the expert witness for the defense to testify on the case with respect to the biomechanical scenario, and not on the long term economic impact of the injury. Make sure that the case is viable, that you can help the situation and would be an appropriate person to testify. You should also ensure that it’s a legitimate case, so that you can provide truthful testimony and are not put in a situation that compromises your ethics or reputation.”
She continues,
For example, there was once an attorney looking to distinguish himself. The only information he gave me was that the young adult’s implant had broken. I investigated, and learned that this was a morbidly obese smoker with severe emphysema—a poor candidate for surgery, with higher risks of non-fusion and complications. Such patients are contraindicated for this procedure, as the implant must tolerate physiological loads well above the norm and within a compromised physiological environment. I advised the attorney that this was not a viable case and removed myself.
“You should receive all of the pertinent documentation such as medical and police records, as well as crash reconstruction data, if applicable, ” explains Dr. Ferrara. “Take copious, organized notes, to include dates, time, etc.”
Some assertiveness may be necessary in order to get the full picture. “Expert witnesses have the right to copies of the depositions from any other experts and witness testimonies. This gives the expert insight into how the other side is going to ‘play it.’ Take notes on the other depositions, and ensure that you understand the conclusions reached by the other expert(s)—and if those conclusions were accurate.”
Proper Courtroom Behavior
The last thing any judge wants in his or her courtroom is a replay of an out-of-control talk show. “It is important to understand what behavior is appropriate. When on the witness stand, you should make regular eye contact with the jury. Refrain from using technical terms or going off on tangents—you will lose them. As for the judge, the rule of thumb is that he or she is the king or queen of the courtroom. Maintain your equanimity—if you don’t, the opposing attorney will sense your anxiety like a shark smells blood.”
“As long as the attorneys are fair, ” continues Dr. Ferrara, “the judge won’t interfere; your attorney is the one who should object if something is out of line. If you don’t know something, just say, ‘I can’t recall.’ Feel free to bring your notes to the stand, and make sure they never take your notes from you—they are allowed to make copies, however. As a matter of decorum, you sit when the judge sits; if you are on the stand and want to get up to approach a display, you should ask the judge’s permission to step down. The courtroom is a formal environment.”
Despite the formality, however, it seems that Dr. Ferrara has seen better behavior on the playground. “I have seen attorneys get into fist fights and scream at surgeons/engineers during the deposition in order to make them nervous. If an attorney is substantially raising his or her voice, or berating you, feel free to ask the attorney to refrain from such behavior. In a deposition, all testimony is documented by the court reporter and such statements such as, ‘I find the way you are acting to be unprofessional.’ will immediately halt all negative behavior.”
To Speak or Not to Speak?
This brings us to the matter of ethics…which brings us to Dr. James Ogilvie, a founder and Chief Medical Advisor of Axial Biotech, Inc. Dr. Ogilvie, who has served as an expert witness in more than twenty cases, says that one’s starting point should always be one’s conscience. “First of all, ” advises Dr. Ogilvie, “Don’t discriminate between the plaintiff and the defense—look at each case on its merits. What if the case was presented at a morbidity and mortality conference? Would people roll their eyes and say, ‘this is outrageous?’ Imagine taking a trusted colleague aside to discuss the case. Would that person say that this case is warranted and ethical?”
An example of a case you may not want to take on is if a surgeon, in an effort to localize the level in the spine, used a guide pin and pushed it down through the spinal cord and created damaged. That is a gross technical error. When deciding to take on a case, stop and think how you would feel if it were your family member.
Driving home his point, Dr. Ogilvie recounts a situation of treatment gone horribly wrong: “I once testified against a surgeon in another specialty who grossly misdiagnosed a disorder in a child. He then proceeded to perform the wrong operation, did so poorly, and paralyzed the child. This is not malpractice—this is bordering on criminal assault.”
A champion of clarity as well, Dr. Ogilvie notes, “Many times surgeons feel obligated to testify in a manner that will please the person who has hired them—this is not your responsibility. Your job is to speak clearly about the facts. Sometimes that doesn’t work out well for the side that hired you. I’ve read many malpractice cases and told the attorney, ‘If I testify for you in court it won’t help your case.’”
Avoiding Traps
And what of the fees? Dr. Ogilvie says, “Many doctors think, ‘I’m the smartest physician out there, and so I can charge whatever I want.’ Sometimes, they get away with it. Why? Because it’s market driven.”
Dr. Ogilvie: “I was once inadvertently sent the fee schedule of the surgeon on the opposing side—it was three times as high as mine. The low end is around $400 an hour with $2000 for a day in court, while some physicians garner $1000 an hour with perhaps $10, 000 a day for court—not including expenses.”
When asked how to prepare, Dr. Ogilvie begins at the beginning.
You have to believe in the case. If you are saying something because you are being paid to say it, then it will leave you open to the opposing attorney. Your testimony must be fact-based and not client-based.
”Prepare at length for the process, reading everything in detail. The opposing attorney has a coterie of assistants combing over every detail, including, for example, what a nurse wrote in an obscure note. You may consult articles and books, but you must be thoroughly familiar with them because the other attorney will ask you details. And you must reveal any consultants you have used. If not, they will find out and use that to their benefit.”
Know what you know and leave the rest to others, says Dr. Ogilvie. “You are an expert in your field—you’re not an expert in law. The attorneys can easily trip you up. You may hear, ‘Doctor, do you think this person is mentally ill or faking his problem?’ If you say, ‘Yes, ’ then they will reply, ‘Well, doctor, you haven’t had psychiatric training, so how can you know that?’”
And some tricks he has seen? “Don’t answer compound questions, a la, ‘Have you stopped beating your wife?’ They can also ‘catch’ you by saying, ‘Assuming that….’ This sets up a hypothetical situation that only serves to trap you. In such a situation, you should just say, ‘You asked a hypothetical question so I can only answer with a hypothetical answer.’”
Dr. Ogilvie concludes, “Throughout this process, absolute honesty is essential. Don’t comprise your ethics. Not only will it demean you, but the opposing side will find out if you are not straightforward. That, of course, only opens the door to character assassination.”
Advice from the Bar
Passing the bullhorn to an attorney, we introduce Tony Martino, Esquire, a partner in the law firm of Clark & Martino, P.A. in Tampa, Florida. “I do not do defense work, but instead focus on the plaintiffs claims. I’m happy to guide doctors through this process, however, because it makes the doctor a better witness, and helps the judicial process resolve claims by getting to the ultimate issues.”
Martino advises, “Typically, in a medical negligence case (in Florida), there must be experts with the same level of training and expertise as on the opposing side (i.e., board certification). When the cause of injury is in question, you need to examine the patient’s history. Most doctors only review their own records, something which is problematic when the other lawyer asks what you know about the patient’s past. You might get trapped along the lines of, ‘Dr. X, if I told you that this patient was in a rollover crash and back boarded to the ER two years ago would that information change your opinion?’”
Emphasizing the value of preparation, Martino says, “Doctors should request a conference with the plaintiff’s attorney ahead of time. At that point the physician should ask, ‘Is there anything else I should know?’ That way the witness will be prepared and feel more comfortable going into the courtroom.”
Delineating his practice, Martino notes, “I typically write summaries and send them to the expert witness (physician). We then review the document and he or she may add his opinion and assign cause or not.”
“For physicians the basic issue is, ‘How do you put the other events into context so you can deal with a question like, ‘Did you know she was in a car wreck three years ago?’ (Assuming you know nothing about it). Here, the doctor should respond, ‘This doesn’t mean she had a serious injury. It just means that they treated her that way because they didn’t know if she was in serious condition.’ The attorney will push you, and may ask, ‘Would it make a difference if I told you she had an MRI which revealed a herniated disc?’ Then the doctor could ask, ‘Is it at the same level? Was it treated? Did her complaints resolve after treatment?’ The point is that the doctor needs to be in tune with where the opposing attorney is going, and not make any assumptions from an open ended question.”
To do that, you must follow the golden rule of preparation. Tony Martino: “Where expert witnesses usually need assistance is with preparing for questions about the cause of the injury they treated. For that, you must know the patient’s entire history. Unfortunately, most doctors don’t want to spend time on this process, and often make lawyers wait, and start a deposition when they haven’t looked at the file. If a deposition is scheduled they should review the file in advance, preferably with the patient’s lawyer, and confirm that they have a complete history of the patient.”
What does it take to be an expert witness? Prepare well, stay honest, observe the rules of the courtroom, and lookout for traps and tricks.
