In my last post, we explored the challenges of managing fear and anger in the midst of a medical malpractice trial. We talked about the nature of those emotions and strategies for addressing them. And we thought about WHY a physician-defendant must do so. Today, I want us to shine a light on the more pleasant topic of the positive emotions. Believe it or not, you may experience moments of clarity, calm, certainty, joy and relief in the courtroom, too. And that's a good thing! However, your way of expressing those emotions is no less important to your success as a defendant as your management of the negative ones. Let's take a look.
How Can This Be?
In another post, we reviewed the 8 Stages of a Medical Malpractice Trial. It never surprises anyone to hear that the process of trial is a grueling emotional roller coaster for most defendants. What I think most of us forget, however, is that all roller coasters entail highs for every low.
At my own trial, there were moments when doctors hired by the plaintiff's attorneys to testify as expert witnesses said things which absolutely appalled me! That was a low.
Their arguments -- intended to persuade the jurors that my co-defendants and I had provided poor care -- fell outside the realm of medical science as I had been taught to understand it. Imagine the surprise and irritation I felt when the expert said things which quite literally made no sense to me!
I found myself thinking, “Did this person go to the same kind of medical school I did?” Here he was, a practicing sub-specialist, making claims before a judge and jury that I should have foreseen an event that, as far as I knew, was never known to occur! I was truly and deeply astonished.
Gratitude and amazement ensued when my defense lawyer promptly followed up with just three rapid questions. These the aforementioned expert answered truthfully.
He admitted that in fact, he had never actually seen firsthand the sort of event which he alleged had occurred with my patient; he had never actually heard a colleague describe the sort of event which he alleged had occurred with my patient; and he had never read a case report detailing the sort of event which he alleged had occurred. I found myself in disbelief.
The Emotional Plot Thickens
The mix of emotions only became more complex as the process of trial moved from the plaintiffs' presentation of their case into that of the defense.
Although I was the lead defendant, I had co-defendants. What with there being three of us, our combined testimony consumed at least two days. It was exhausting.
Despite the high-stakes nature of the case, all three of us testified well. I felt proud of our collective knowledge, our concern for our patients, and our capacity to express ourselves under pressure, explaining complex medicine in laypeople's terms. Above all, when none of us lost our composure or eloquence in the face of the plaintiff's attorneys' attempts to ambush us or make us look like bad physicians, I was thrilled!
However, because we were in front of the judge and jury, all of those feeling states – shock, surprise, irritation, gratitude, amazement, pride and astonishment good and bad – had to remain under wraps.
No dropped jaws.
No obviously raised eyebrows.
No cheers and certainly no high-fives!
Why not? Certainly the courtroom, judge and jury demand a certain degree of decorum. More importantly, though, I needed for the jurors to see me for who I really am – a genuinely caring physician.
Why Manage Emotions at Trial?
There was – and is – no room at trial to risk that shock, pride or astonishment will be misinterpreted by the judge and jurors as arrogance or worse, a lack of compassion for the plaintiffs. At every moment, I had to strive to fully appear to be the person most physicians are – intelligent, yes, but even more important, compassionate, diligent, thoughtful, and humble.
As the days and weeks progressed, a new emotion emerged when experts testified for the defense. These physicians – several very smart, well-respected individuals -- testified clearly, cogently, and in ways that added up for me. It was refreshing to see the uncertainties of medicine spelled out for the jury and pathophysiology explained in ways that made sense to me, too. In fact, I would say that hearing the defense experts’ testimony was an unexpected benefit of having to go to trial.
Granted, not every defendant has this experience, but for me, their testimony generated a sense of calm I had long lacked around my patient's death. They acknowledged that the outcome was unforeseen. They affirmed that my colleagues and I had done what reasonable doctors would do. Their perspective on the logic I had followed and the medical care I provided meant more to me than any verdict could.
After they testified, I released my white-knuckle grip on the process of the lawsuit. Experts I respected had supported the care I had rendered. I had done my best at trial. The outcome was no longer in my hands.
Before the jury ever went out to deliberate, I found myself at peace. Not jubilant, not yet whole again, just at peace.
Let me tell you, peace is a very valuable place to be before a jury goes out to deliberate. The truth is that defendants do not control those deliberations. By the time deliberations commence, our work is done. Any conversations will occur beyond our hearing and outside our sphere of influence.
For that reason and others, I feel strongly about encouraging defendants to redefine what it means to win in a medical malpractice lawsuit.
Do not let the jury define whether you've won! Instead, define it for yourself.
You do you. Let them do them.
In my book, it's simple, at least in principle if not always in practice. Do whatever you possibly can to come through a malpractice lawsuit with your health and integrity intact. If you accomplish that much, I'd say you've absolutely won!