Symposium on Medicolegal Problems in Ophthalmology
., ., .,
SOME MEDICOLEGAL TIPS DAN J. TENNENHOUSE, MD, JD, FCLM MILL VALLEY, CALIFORNIA The purposes for each type of medical record are critical legal determinants for its content. Deposition is the most important single step in the litigation process. The uses for a deposition greatly exceed the mere discovery of fact. The weight given the testimony of witnesses by a jury is affected by many subtle factors, including professional demeanor, attitude, manner of dress, ability to communicate and recollect, and prior inconsistent statements.
INTRODUCTION
THE outcome of litigation is determined to a large extent by the evidence. The evidence has two primary sources: the testimony of witnesses and the medical records. Understanding the legal effects of testifying and record keeping permits the physician to actively reduce the frequency of lawsuits and the likelihood of an adverse outcome. Some tips for the physician who must testify and maintain medical records are offered below. TESTIFYING
Testimony of the physician is obtained in deposition and in trial. Deposition is a long, exhaustive cross examination that takes place in the presence of attorneys representing all parties to the lawsuit. Submitted for publication October 24, 1978. From the University of California, San Francisco, School of Medicine; University of California Hastings College of the Law; and University of San Francisco School of Law. Reprint requests to 427 Countyview Drive. Mill Valley. CA 94941 (Dr Tennenhouse).
It permits the attorneys to prepare for trial by discovering the witness' probable trial testimony. Deposition questions are usually worded with great care and may betray impressive understanding by the attorney of medical issues in the case.
Testimony at trial is limited by statements made in deposition, which can be read to the jury if they disagree. Many cases are actually won or lost in the physician's deposition because it can virtually determine the content of the trial. Cross-examining attorneys also attempt to establish a basis for attacking the credibility of a witness by eliciting inconsistent statements. An answer that disagrees with medical records or the testimony of other witnesses can hurt credibility. If the same question is asked twice during a deposition and the answers appear to differ, credibility can be jeopardized. Witnesses should try to be consistent, even in choice of words. Generally, a successful witness is one who discloses little information during deposition. Minimizing the risk of in.consistency, hiding the content of trial testimony, and preventing the opposing attorney from planning counterstrategy or preparing for effective cross examination in trial requires avoiding clear statements of fact or opinion whenever possible. Witnesses who believe that deposition is an opportunity to tell their side of the story
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VOLUME 86 JULY 1979
SYMPOSIUM ON MEDICOLEGAL PROBLEMS
are playing into their adversary's hands. In deposition the cross examiner learns not only the factual content of the testimony but also the strong and weak points of the witness and the probable effect on a jury. Are there lines of questioning· which elicit anger, sarcasm, or confusion from the witness? Trial strategy for cross examination is based on the behavior of the witness in deposition. In trial, gIVIng testimony often amounts to a contest between witnesses, wherein the most favorable impression on the jury will determine what facts are believed. Every aspect of appearance, demeanor, and manner of expression can be important. The jury will also consider the witness' ability to communicate clearly, appearance of honesty or dishonesty, existence of bias, inconsistent statements, attitude toward litigation or toward the giving of testimony, and apparent ability to perceive or remember. Prior to deposition or trial, one should review all medical records, discuss the case with no one other than the attorney, and ask if the study of the relevant medical literature should be limited. In some states, books or journal articles may be used in evidence to attack the testimony of witnesses who referred to them. Prior to trial, review the deposition but avoid memorizing answers. It is important to use the same general choice of words without sounding rehearsed. Dress for the trial in a conservative and professional fashion. Wear no jewelry. Answer questions in court by addressing the jury directly and in
1265
lay terms. Answer only the question asked and be concise. The less you say, the fewer avenues of cross examination are possible. If the cross examiner challenges your answer or attempts to argue with you, remain firm in your answer. As the witness, you alone create the evidence. The cross examiner can affect the evidence only indirectly, by manipulating you into giving misleading answers or appearing to be an unreliable source of information.
Experienced cross examiners do not ordinarily badger witnesses because the jury will then side with the witness. However, one who has already lost rapport with the jury through sarcastic, angry, or flippant comments can be harrassed with little risk. If you appear emotionally uninvolved, careful and clinical throughout cross examination, the jury will be favorably impressed and the cross examiner may be forced to avoid offensive techniques. Unclear or potentially misleading questions should be reworded before you answer. Questions seeking "yes" or "no" answers that might be misleading unless explained should be answered "with qualification." Judges often permit witnesses to fully explain their answers if a ware of the need for qualification. Avoid humor on the witness stand. Trial is a serious proceeding, and the jury will give less credibility to the testimony of any witness who appears to have an improper attitude. Presume that on every jury there is at least one juror who has no sense of humor.
1266
DAN J. TENNENHOUSE
The appearance of evading questions or giving extreme resistance to the cross examiner after providing ample answers on direct examination suggests you have something to hide. A sincere effort to answer the cross examiner's questions, whether or not useful information is provided, can make you look more honest and objective. MEDICAL RECORD KEEPING
The medical record, being . the only evidence not affected by loss of memory, knowledge of litigation, and advice of legal counsel, is often the most important source of information available to a jury. The record fixes much of the testimony of witnesses and therefore can determine the outcome of litigation. Since you create the record, good record keeping can provide you with an incomparable advantage.
OPHTH AAO
Documentation of consent and informed consent is part of a preoperative check list and is, therefore, necessary for patient care. Similarly, evidence of patient negligence should be recorded to assist future treatment planning, which may be influenced by patient noncompliance. The value of the above documentation in defense of a lawsuit may be profound if the jury trusts the records. Threats by a patient to sue belong in the record only if they have clear diagnostic or therapeutic significance. Otherwise, they suggest defensive record keeping by the physician. Only that which is actually perceived should be stated as fact in the records. Opinion, guess, and hearsay should be clearly labeled as such. Illegible records endanger the patient and give you the appearance of recklessness. Keeping complete records is neither possible nor necessary. A medical record is ordinarily kept in such a way that certain types of nones sen tial information are routinely omitted. However, consistency in what is omitted or included will be presumed. Therefore, if an observation is written on one visit and omitted on the next, the jury will assume that no observation was made on the second visit.
If the jurors believe the record was kept for the purpose of defending the doctor in the event of litigation, they will suspect favorable documentation to be self-serving and without factual basis. The only admitted purpose for a medical record should be to benefit the patient. Commentary explaining a poor outcome and denying fault is not useful for the future care of the patient and casts doubt on the credibility of the entire record. It may also disclose information, Late changes and additions to without benefit of legal counsel, records should be initialled and that will make defense of a lawsuit dated to prevent any inference of more difficult. Opinions on the na- intent to mislead the court. Late ture of the medical problem and its changes in a record should generally prognosis do relate to the patient's be a voided because they are diffifuture care and can sometimes pre- cult to explain in terms of patient vent a nuisance lawsuit by educat- benefit and they suggest defensive ing the attorney. Resist the tempta- record keeping. tion to include comments that apVarious parts of the medical pear to be defensive.
VOLUME 86 JULY 1979
SYMPOSIUM ON MEDICOLEGAL PROBLEMS
record should routinely be compared to insure internal consistency. Do medication records and laboratory or x-ray reports accurately reflect the doctor's orders? Do progress notes agree with consultation reports, nurses' notes, and other progress notes? Internal inconsistency can give the plaintiff attorney an easy avenue of attack and create disagreement in testimony among defense witnesses.
1267
A common source of liability is alleged failure to instruct the patient on return visits and symptoms that warrant follow-up care. A concise synopsis of the instructions given the patient should be recorded not only to reduce this potential for lawsuit but also to remind the physician to fully instruct the patient and to provide an accurate record with which to establish patient noncompliance.
., ., .,
SOME MEDICOLEGAL TIPS DAN J. TENNENHOUSE, MD, JD, FCLM MILL VALLEY, CALIFORNIA The purposes for each type of medical record are critical legal determinants for its content. Deposition is the most important single step in the litigation process. The uses for a deposition greatly exceed the mere discovery of fact. The weight given the testimony of witnesses by a jury is affected by many subtle factors, including professional demeanor, attitude, manner of dress, ability to communicate and recollect, and prior inconsistent statements.
INTRODUCTION
THE outcome of litigation is determined to a large extent by the evidence. The evidence has two primary sources: the testimony of witnesses and the medical records. Understanding the legal effects of testifying and record keeping permits the physician to actively reduce the frequency of lawsuits and the likelihood of an adverse outcome. Some tips for the physician who must testify and maintain medical records are offered below. TESTIFYING
Testimony of the physician is obtained in deposition and in trial. Deposition is a long, exhaustive cross examination that takes place in the presence of attorneys representing all parties to the lawsuit. Submitted for publication October 24, 1978. From the University of California, San Francisco, School of Medicine; University of California Hastings College of the Law; and University of San Francisco School of Law. Reprint requests to 427 Countyview Drive. Mill Valley. CA 94941 (Dr Tennenhouse).
It permits the attorneys to prepare for trial by discovering the witness' probable trial testimony. Deposition questions are usually worded with great care and may betray impressive understanding by the attorney of medical issues in the case.
Testimony at trial is limited by statements made in deposition, which can be read to the jury if they disagree. Many cases are actually won or lost in the physician's deposition because it can virtually determine the content of the trial. Cross-examining attorneys also attempt to establish a basis for attacking the credibility of a witness by eliciting inconsistent statements. An answer that disagrees with medical records or the testimony of other witnesses can hurt credibility. If the same question is asked twice during a deposition and the answers appear to differ, credibility can be jeopardized. Witnesses should try to be consistent, even in choice of words. Generally, a successful witness is one who discloses little information during deposition. Minimizing the risk of in.consistency, hiding the content of trial testimony, and preventing the opposing attorney from planning counterstrategy or preparing for effective cross examination in trial requires avoiding clear statements of fact or opinion whenever possible. Witnesses who believe that deposition is an opportunity to tell their side of the story
1264
VOLUME 86 JULY 1979
SYMPOSIUM ON MEDICOLEGAL PROBLEMS
are playing into their adversary's hands. In deposition the cross examiner learns not only the factual content of the testimony but also the strong and weak points of the witness and the probable effect on a jury. Are there lines of questioning· which elicit anger, sarcasm, or confusion from the witness? Trial strategy for cross examination is based on the behavior of the witness in deposition. In trial, gIVIng testimony often amounts to a contest between witnesses, wherein the most favorable impression on the jury will determine what facts are believed. Every aspect of appearance, demeanor, and manner of expression can be important. The jury will also consider the witness' ability to communicate clearly, appearance of honesty or dishonesty, existence of bias, inconsistent statements, attitude toward litigation or toward the giving of testimony, and apparent ability to perceive or remember. Prior to deposition or trial, one should review all medical records, discuss the case with no one other than the attorney, and ask if the study of the relevant medical literature should be limited. In some states, books or journal articles may be used in evidence to attack the testimony of witnesses who referred to them. Prior to trial, review the deposition but avoid memorizing answers. It is important to use the same general choice of words without sounding rehearsed. Dress for the trial in a conservative and professional fashion. Wear no jewelry. Answer questions in court by addressing the jury directly and in
1265
lay terms. Answer only the question asked and be concise. The less you say, the fewer avenues of cross examination are possible. If the cross examiner challenges your answer or attempts to argue with you, remain firm in your answer. As the witness, you alone create the evidence. The cross examiner can affect the evidence only indirectly, by manipulating you into giving misleading answers or appearing to be an unreliable source of information.
Experienced cross examiners do not ordinarily badger witnesses because the jury will then side with the witness. However, one who has already lost rapport with the jury through sarcastic, angry, or flippant comments can be harrassed with little risk. If you appear emotionally uninvolved, careful and clinical throughout cross examination, the jury will be favorably impressed and the cross examiner may be forced to avoid offensive techniques. Unclear or potentially misleading questions should be reworded before you answer. Questions seeking "yes" or "no" answers that might be misleading unless explained should be answered "with qualification." Judges often permit witnesses to fully explain their answers if a ware of the need for qualification. Avoid humor on the witness stand. Trial is a serious proceeding, and the jury will give less credibility to the testimony of any witness who appears to have an improper attitude. Presume that on every jury there is at least one juror who has no sense of humor.
1266
DAN J. TENNENHOUSE
The appearance of evading questions or giving extreme resistance to the cross examiner after providing ample answers on direct examination suggests you have something to hide. A sincere effort to answer the cross examiner's questions, whether or not useful information is provided, can make you look more honest and objective. MEDICAL RECORD KEEPING
The medical record, being . the only evidence not affected by loss of memory, knowledge of litigation, and advice of legal counsel, is often the most important source of information available to a jury. The record fixes much of the testimony of witnesses and therefore can determine the outcome of litigation. Since you create the record, good record keeping can provide you with an incomparable advantage.
OPHTH AAO
Documentation of consent and informed consent is part of a preoperative check list and is, therefore, necessary for patient care. Similarly, evidence of patient negligence should be recorded to assist future treatment planning, which may be influenced by patient noncompliance. The value of the above documentation in defense of a lawsuit may be profound if the jury trusts the records. Threats by a patient to sue belong in the record only if they have clear diagnostic or therapeutic significance. Otherwise, they suggest defensive record keeping by the physician. Only that which is actually perceived should be stated as fact in the records. Opinion, guess, and hearsay should be clearly labeled as such. Illegible records endanger the patient and give you the appearance of recklessness. Keeping complete records is neither possible nor necessary. A medical record is ordinarily kept in such a way that certain types of nones sen tial information are routinely omitted. However, consistency in what is omitted or included will be presumed. Therefore, if an observation is written on one visit and omitted on the next, the jury will assume that no observation was made on the second visit.
If the jurors believe the record was kept for the purpose of defending the doctor in the event of litigation, they will suspect favorable documentation to be self-serving and without factual basis. The only admitted purpose for a medical record should be to benefit the patient. Commentary explaining a poor outcome and denying fault is not useful for the future care of the patient and casts doubt on the credibility of the entire record. It may also disclose information, Late changes and additions to without benefit of legal counsel, records should be initialled and that will make defense of a lawsuit dated to prevent any inference of more difficult. Opinions on the na- intent to mislead the court. Late ture of the medical problem and its changes in a record should generally prognosis do relate to the patient's be a voided because they are diffifuture care and can sometimes pre- cult to explain in terms of patient vent a nuisance lawsuit by educat- benefit and they suggest defensive ing the attorney. Resist the tempta- record keeping. tion to include comments that apVarious parts of the medical pear to be defensive.
VOLUME 86 JULY 1979
SYMPOSIUM ON MEDICOLEGAL PROBLEMS
record should routinely be compared to insure internal consistency. Do medication records and laboratory or x-ray reports accurately reflect the doctor's orders? Do progress notes agree with consultation reports, nurses' notes, and other progress notes? Internal inconsistency can give the plaintiff attorney an easy avenue of attack and create disagreement in testimony among defense witnesses.
1267
A common source of liability is alleged failure to instruct the patient on return visits and symptoms that warrant follow-up care. A concise synopsis of the instructions given the patient should be recorded not only to reduce this potential for lawsuit but also to remind the physician to fully instruct the patient and to provide an accurate record with which to establish patient noncompliance.
