Advice for Doctors in Medical Malpractice Lawsuits

Dr. Henry M. Learner, an instructor in Obstetrics and Gynecology at Harvard, writes an article in this month’s OBG Management called “Rebuff Those Malpractice Lawyers’ Traps and Tricks.” Dr. Learner is also the president of Shoulder Dystocia Litigation Consultants, a group that works with defense lawyers, medical malpractice insurance company case managers, and hospital risk managers in shoulder dystocia-related injuries and litigation.

I hate to give up one of my own but I’m pretty sure Dr. Learner is a double agent. Because the advice he gives in this article is either obvious (“know the specifics of your case”) or downright counterproductive. One piece of advice is to pull a Sarah Palin: “you don’t necessarily have to play by the rules for answering questions….” That cracks me up. But this one is even better:

Never allow an attorney to bully you in the courtroom or at a deposition. If the attorney begins to use such behavior, call it by its name and demand that it be stopped. Your lawyer will likely have raised the objection before you do; if she does not, protest such inappropriate behavior yourself. Never allow an attorney who is questioning you to raise his voice or speak to you sarcastically or rudely.

This is the absolute best path for a doctor to snatch defeat from the jaws of victory in a medical malpractice case. Jurors tend to trust doctors. The playing field is tilted in favor of the doctor. The very best way for a doctor to blow that lead is tell the plaintiff’s malpractice lawyer on the stand that he/she won’t be spoken to sarcastically. For anyone testifying – plaintiff, defendant, fact witness or expert – the very best advice is the very opposite of this advice: if there is no objection, just answer the question.

Here is the article.

  • Ron: At trial I tend to agree with you that the doctor/expert needs to come across as not invested in the litigation or having a “dog in that hunt” as they say in the South. An expert needs to stay above the fray and come across to the jury that he is just using his expert knowledge to evaluate the facts. That being said, in a deposition situation, unless its being videotaped, I usually have no problem with my expert “defending himself” and putting the other lawyer in his place. It can definitely put the lawyer off his game. Having my expert be an advocate for his position in deposition is fine. In front of the jury,whether live or be video, not so fine.

  • He needs to leave the lawyering to the lawyers and focus on how to properly evaluate the medical aspects of a case. But remember he apparently is a “consultant” on litigation and he’s trying to sell his wares. Problem is you and I both agree, he’s wrong when it comes to testimony before a jury.

  • Erik Olson

    I don’t get what you are implying by “double agent”. Because Dr. Lerner is not doing any favors for the plaintiffs.

    His recent publication on shoulder dystocia is about as believable as a claim of virgin birth. It’s calculated to sow maximum doubt, by documenting one case of spontaneous, permanent brachial plexus injury. I can imagine the speech: Isn’t it possible, ladies and gentlemen of the jury, that this injury *just happened* on its own? This Harvard doctor says it can!

    Dr Lerner’s claim has since been disproved; more to the point, he published the article but did not disclose that the injury was being litigated. The truth is catching up to him.

    For the record, I have a permanent obstetric brachial plexus injury and have never been involved in any litigation.

  • Ron Miller

    I think my view of the relationship between medical malpractice and shoulder dystocia falls somewhere between you and Dr. Lerner.

    I’m sorry to hear of your injury. But, as an aside) I’m not sure mocking the religion of billions of people including me) is the best way to make a persuative argument.

  • Ron:

    Thanks for posting this article. You’re absolutely right about some of the lame trial advice this guy gives Drs, not to mention some of the outlandish representations in the article:

    “Always keep in mind that, for you
    to be found guilty of malpractice,
    the plaintiff attorney has to prove
    beyond a reasonable doubt that the
    actions you did, or did not, take violated
    what is known in the medicolegal
    arena as standard of care.”

    Is this guy a frequent expert in dystocia cases?

    Anyway, enjoy the blog and keep up the good work.

    Brian Wilson

Contact Information