CorrectCare

Tripping Doctors in the Witness Stand: A Sampling of Tough Questions

by Joseph E. Paris, PhD, MD, CCHP-A

In the past few years, I have been asked to serve as an expert witness for either the defense or the plaintiff in a number of correctional medical cases being litigated in federal or state courts. Before agreeing to serve, I always perform a review of the facts of the case to ascertain that I would be helping a meritorious side. The review includes reading depositions of doctors and other health care staff.

From these reviews and my own exposure to being deposed or questioned in court, I have selected a few questions opposing attorneys like to ask. These seem to invariably unsettle otherwise well-composed doctors and nurses, and have made me sweat as well. Here they are, with a word or two on possible ways to handle them. Good luck.

Doctor, do you have an independent recollection of the events that happened to that inmate/patient?

The doctor is under oath and needs to tell the truth, of course. The problem is, the events in question likely happened several years previously. Independent recollections would normally be quite vague. In addition, doctors prepare themselves for depositions or trials by reviewing the pertinent documentation. With anxiety surrounding the anticipation of a stressful time on the stand, much of the recollection is likely to derive from the review, which would not be “an independent recollection of the facts.”

If the doctor does respond “yes” to the question, the opposing attorney may want first to question the doctor without the benefit of the records, then with the records, finally comparing the two sets of answers for inconsistencies. Not a good thing for the hapless doctor.

I usually answer “no.” Not only is this closer to the truth, but it also will lead to an easier time during the questioning that follows. When the opposing attorney asks questions, the doctor may respond by reading the record. Sometimes, after the doctor has read part of the records, the attorney will ask, “Does this jog your memory of the events, doctor?” My standard answer: “I still do not have an independent recollection of the facts, counselor. It has been a long time and I have seen numerous patients since.”

On occasion, the doctor may say that he/she has no independent recollection of the events, but that, although not specifically charted, he/she always performs a certain examination as part of the routine encounter.

Doctor, what books, treatises, or other sources of medical information do you consider authoritative in your field?

This seemingly innocuous question may lead to a veritable minefield. While many of us own well-worn copies of Gray’s Anatomy, the Harrison Textbook of Medicine, Rakel’s Family Practice and others, the admission that any of these is “authoritative” may lead the opposing attorney to select specific paragraphs describing methods of diagnosis or treatment somewhat different from what the doctor did. These can be used later to give the doctor a hard time.

I have developed an answer that, while long and complex, usually puts the issue to rest: “Counselor, the medical world has evolved. While it is true that many decades ago there was consensus on certain medical textbooks as being authoritative, the ever-increasing pace of medical progress has changed matters. Today, by the time a textbook is published, a number of its medical concepts and recommendations may have changed slightly or even substantially, thus rendering the just-printed book obsolete.

“A large number of medical practice guidelines are published periodically by specialty societies. Guidelines, however, are only guidelines and not an absolute. In fact, rather frequently the guidelines of two or more similar societies on the same topic differ from one another. When I face a specific clinical situation I usually run an Internet search, compare the latest studies available, consider my own clinical training and experience, and come to a conclusion appropriate for my patient’s circumstances.”

Doctor, what is your definition of deliberate indifference?

As we correctional doctors know, litigation against us frequently invokes the concept of deliberate indifference (to serious medical needs of an inmate-patient). It would be detrimental for a correctional physician to say that he/she has no idea of what deliberate indifference is. However, we need to remember that deliberate indifference is a legal, not a medical, concept.

Here is an answer I have used with success: “Counselor, as I understand it, deliberate indifference is a legal, not a medical, concept. Since I am not trained in law, forgive me if I cannot produce a learned discussion of the legal basis of the concept of deliberate indifference as used by various courts. I can only quote noted correctional attorney William Rold, who teaches that three basic inmate rights have emerged: a right to access to care, a right to care that is ordered and a right to a professional opinion.”

— About the authors: Joseph Paris, PhD, MD, CCHP-A, is an independent correctional health care consultant based in Georgia.

[This article first appeared in the Winter 2008 issue of CorrectCare.]