THE TRUTH TOLD WELL AND MEDICAL CARE PLUS MEDICAL CARING: MEDICAL MALPRACTICE WITNESS PREPARATION
I recently presented to a national medical insurance organization as part of a panel concerned with the explosion in medical malpractice jury verdicts in recent years. The panel, “Buckle Up for a Bumpy Ride…Navigat[ing] Social Inflation Turbulence,” focused on identifying some of the key influences behind the rise of these larger medical malpractice jury verdicts and providing insight on practical prescriptions to the problem.
The consensus on the panel was: (1) that the social inflation in a medical malpractice verdict is not only trending, but rose sharply in 2019; (2) that the role of jury demography – and specifically the rise in the prominence of millennials on juries is contributing to the rise in award; (3) that the negative cultural attitude toward big business/big health care as an uncaring mechanism motivates jurors to empathize with individual accounts of poor medical care; and (4) how jurors perceive the conduct (the liability) bleeds into jurors’ motivation to award damages.
Given this, what are the practical solutions to ameliorate the risk of huge jury damage awards? The solution to this lies at the start and the heart of the issue – the deposition of the medical professional.
We have seen an increasing focus on the realistic preparation of medical professionals for their depositions – both face-to-face and through video conferencing. More insurance companies and health care institutions are devoting important resources to their medical professionals so that they feel more in control — more confident – and more prepared – more competent – to face the challenges of a deposition.
We thought we would share some of our key principles and approaches to such preparation. First and foremost, this preparation is focused on the principal of “telling the truth well.” Telling the truth well intends to do two primary things. First, the truth should reduce the chance of misunderstanding. Second, the truth should reduce the chance of mischaracterization or misuse.
With the increasing role of “reptile strategy” and leading questions in depositions, medical professionals need to be armed to tell their truth and not get led into agreeing to oversimplifications, adopting ambiguous or strategic language, or absolutes. The conventional wisdom of deposition preparation teaches that a witness should listen to the question and answer only that question and nothing more. The danger of such an approach is that the transcript (and video) will read (and show) a pattern of plaintiff attorney’s characterizations followed by a pattern of “yes” and “no.” At such point, a witness is no longer testifying, the plaintiff attorney is. The conventional wisdom isn’t taking into account the critical importance of language and meaning, language and perception, and language and evaluation. The conventional approach isn’t taking into account the importance of rhetorical and linguistic form, and sentence construction is the shaping of evaluations, perceptions, and meaning.
Let me give a simple example: Question: “Doctor, isn’t it true that you did not consider a DVT in this case?” Answer: “Yes, that is correct.”
So, does this mean the possibility of a DVT never crossing the doctor’s mind? That is certainly how it can be misunderstood, and it is certainly possible that that is the way it could be characterized in a brief or in an opening statement of a jury trial or arbitration hearing.
Enter the importance of the preparation session. I asked the doctor if she meant that she never considered the possibility of a DVT. Her response was, “No, it is always on my mind, but the clinical presentation did not point to a DVT, so I did not feel that was going on.” Ah, so the issue was all context in the doctor’s mind and the internal conversation she was having. She answered the question reasonably, imposing a temporal context (read: after my evaluation, I did not consider a DVT likely”). The interpretation of opposing counsel could well frame this – through misunderstanding and/or through their duty as a zealous advocate for their client – as an answer tied to a different temporal content – the beginning of a clinical evaluation. If it was not considered at the start, to extend the argument, it was negligent. The right questions were not asked, the right assessments were not made.
Telling the truth well, in the example above, is as follows: “That is always on my mind but based on my clinical evaluation I considered it highly unlikely, so yes, in that regard, you are correct.” This answer reduces the potential for misunderstanding and the possibility of mischaracterization.
Now, “going beyond” the strict confines of a leading question is a rhetorical art requiring an understanding of how much is too much and not inadvertently sending a message of defensiveness or aggressive correction. It is about efficiently adding appropriate content to the answer when not to do so would otherwise allow misunderstanding or mischaracterization. It is a perspective, in part, of a psychological approach to a deposition. This is a method we help witnesses understand so that they can tell the truth well. This is a cornerstone of addressing the rise of medical malpractice damage awards.
Another key principle to consider is the importance of the attitude and character of the medical professional. All too often the focus is on logos – the logic, facts, and reasoning inherent in the case; and on pathos – the worry of sympathy and the emotional appeal of an injured patient. But ethos is the key. The character of the medical provider is a central issue in minimizing the rise of damage awards as well.
A medical professional’s ethos, their character, needs to be a central point of evaluation of his or her abilities as a witness. Medical professionals are put in an unfair situation – there are witnesses testifying about their medical care at a given point in time in an attorney’s conference room, often years after the underlying event. Good preparation addresses this concern. Medical professionals need to testify as medical professionals first, witnesses in a conference room, second.
Their credibility, their ethos, needs to be one of caring medical professionals. It is not just medical care, but medical caring that is so critical to jurors. As the example I shared above shows, language and sentence structure are critical forms of meaning-making and collective understanding – sharing the perspective of a speaker with the perspective of an audience – judge, arbitrator, or juror. But that is only one element of effective human communication.
So, although I will not go deep into evolutionary biology (which I am sure you will appreciate), allow me to oversimplify. Language and writing are important developments in the human condition; but for the length of human evolution, we have been beings that have been making sense of the world with our eyes and ears. Our brains, or perceptions, even as we evaluate what people say, are more influenced by our perceptions of how people look and how they sound when they say it. This is another key step in telling the truth well – emphasizing their heart and the medical caring they put into play in their medical care.
Finally, it is critical of the attorneys defending medical professionals to use the deposition preparation time as opportunities to listen, learn, and engage in a bit of the Socratic method, as the example above illustrates. “Doctor, are you saying that you never considered a DVT?” The truth told well comes easy in the answer, with a little context that creates a lot of clarity.