‘Be Prepared’ Is the Motto to Follow When Testifying in a Malpractice Lawsuit

If you’re faced with a malpractice lawsuit, you may feel that the entire litigation process—from discovery to trial—is beyond your control. But there is one very important element that you can control: your own testimony. Because the courtroom differs from the exam room or the surgical suite, and because opposing counsel’s job is to attempt to discredit you, being prepared is a must.

Physicians can start the preparation process by reviewing these basic tips before testifying:

  1. Limit Your Answers
    Whether you’re on the witness stand or in a deposition room, your only obligation is to answer the question you were asked. You may be tempted to provide additional information that you think is relevant, but you could inadvertently harm your case. Stay within the scope of the question. Your attorney—not you—has responsibility for making sure that all relevant information is introduced.
  2. Provide a Careful, Precise Answer
    When you answer precisely, you remove ambiguity from your testimony. But be sure not to box yourself in. If you are asked for a complete list of your actions, answer carefully. Unless you are absolutely sure you’ve provided every element, leave the list open. For example, if you are asked to detail the steps you took before arriving at a diagnosis, it is acceptable to say, “At this time, these are the steps I remember taking.”
  3. Stay Calm
    Keep your cool. You lose credibility when you become sarcastic, raise your voice, or get defensive. Opposing counsel may try to provoke you. Don’t take the bait. If you can feel your blood pressure rising, pause for a moment to collect yourself before answering the question.
  4. Be Straightforward
    The facts will come out in your deposition or at trial, so there is no point in trying to avoid an admission, even if you think that making it will hurt your case. When opposing counsel asks a question, don’t obfuscate. Quickly provide a clear answer. Dancing around the issue will only give it more prominence.

The Doctors Company provides Litigation Education Retreats as an exclusive benefit for members facing claims. At these one-day seminars, litigation experts offer essential advice about what makes a winning case, and physicians learn the skills necessary to aid in their own defense. Find more information at www.thedoctors.com/ler.


The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

4/13

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