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kc_sps_2011_batterup

Batter Up

By Hon. Hiller B. Zobel

Related to: Claims, Publications

For years, baseball coaches have stressed a simple principle: “See the ball. Hit the ball.” Suitably modified, this thought can guide any doctor who may, whether as defendant or expert, be batting in the witness box during a medical malpractice trial: Understand the Question. Answer the Question (in that order).

Courtrooms often induce serious mental and, yes, physical discomfort for physicians. The setting is strange; the procedure arcane; inability to control the proceedings can be profoundly disconcerting; and the distinctly unscientific approach to medical issues is infuriating.

When the physician is not merely a witness, but the defendant, the pressure increases logarithmically, not least because malpractice trials often start with the physician defendant as the plaintiff’s first witness.

You read that right: the plaintiff’s lawyer frequently begins by putting the doctor on the stand, proceeding then—as almost every state allows—to cross-examine (grill) the unhappy physician. A pre-trial deposition under oath will not ease the pain. A deposition is to courtroom testifying as acne cream is to skin grafting.

Whenever a doctor testifies, whether on direct examination or cross, it is absolutely essential that the physician listen to and understand the question. The necessity magnifies on “cross.” After all, part of a cross-examining lawyer’s (legitimate) objective is to make the witness look bad: confused, ignorant, or evasive. Here are two examples from the lawyer’s catalogue of tricks:

  • Double question: “Doctor. Your diagnosis was uncertain, and you had only just met the patient, correct?” (Do you answer both queries with a single “yes”…or a single “no”?)
  • Unclear question/statement: “Doctor. You did not diagnose a fracture, right?” (What does “yes” mean? or “no”?)

By carefully listening to the wording of the question, you will know (honestly) if you don’t understand it—or if it cannot be answered fairly. In either event, say so: simply, calmly, and—above all—unemotionally. Never give the attorney any orders; that is the judge’s job. Just say: “I’m sorry, I can’t answer the question as you’ve phrased it” or “That’s two questions.” If, however, the question is clear, never feign confusion.

If you comprehend the inquiry, answer it; use the simplest appropriate wording, but answer. For example, to the question: “How many sutures were required?” simply state the number, not the number plus details of patient prep, instrument selection, or anything else.

On the other hand, if the question is “What was the patient’s condition?” then merely responding “Good” is probably inadequate. Here, it is appropriate—perhaps even mandatory—to append details: “He was conscious, bleeding from a cut on his left arm, visibly in pain.” Remember, however, that although the question asks for specific information, it does not invite a display of everything you know about trauma. Nor does it ask for an opinion, or even a brief rundown of the attendant circumstances. As Charles Dickens (a seasoned courtroom observer) asserted in The Pickwick Papers: over-loquacity in a witness is as dangerous as undue taciturnity.

No witness will hit 1.000. Good ones, however, follow both the Batter’s Mantra and the Dickens Corollary: Understand the Question. Answer Only the Question.

SPS guest author, Hiller B. Zobel, is a retired associate justice of the Massachusetts Superior Court and author (with Stephen N. Rous, M.D.) of Doctors and the Law, and Doctors and the Law Second Edition.


October 4, 2017
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