This is the second of a two-part article. In the last issue of CorrectCare, Paris discussed how a physician asked to be a defense expert witness should determine whether to do so. Below, he outlines what comes next.

Writing the Report
If the defense attorney rules on the phone that one’s testimony will help the defense, report writing is in order. The defense witness should start by stating training and expertise, attaching a CV. Disclosure of all previous legal actions the witness was involved in for a defendant or for a plaintiff may be required and may be questioned at length during a deposition.

A list of all documents reviewed should follow. Afterward, a brief description of the events in question is in order. Much care has to be exercised to quote only factual matters without editorializing, guessing, assuming or interpolating facts not in evidence.

An analysis of the reviewer’s understanding of access to care should follow. The reviewer should assume that the plaintiff’s attorneys will try to earn their keep by demonstrating that “care was so bad that it amounted to no care at all,” thus conforming to deliberate indifference to a serious medical need.

Sometimes an earnest defense attorney will suggest changes to early report drafts “for emphasis.” The defense doctor should gently hold ground and not be led to endorse actions by the defendant medical staff that do not conform with contemporary standards of care. After the defense attorney and witness doctor agree on the contents, the document is notarized and submitted. An uneasy wait may follow.

Case Disposition…or Deposition
The defense witness report may be all that is needed for a summary judgment (case dismissal). The doctor may savor success and pat himself on the back. More often, however, the report will be analyzed by the plaintiff’s experts, challenged, more documents generated and so on.

The plaintiff’s attorney will likely request your deposition. Should a deposition be needed, the doctor will be paid a fee, but will have to earn it with cold sweat. The scenario will likely be at the doctor’s office or a conference room, complete with attorneys for both sides, a court stenographer and so on. The easy camaraderie we enjoy in the medical environment will be replaced by austere, courtroom-like deposition trappings. The sense of drama can be intensified by the plaintiff’s attorney attitude, which typically starts by being friendly and easygoing but may get rather mean as the deposition veers towards the main issues.

Another disconcerting fact: The defense attorney will be present, but does not seem to help much. It’s not possible for the defense witness to stop the action to ask for help with a tricky question. One must answer to the best of one’s knowledge and tell the truth. In the courtroom, a defense attorney may object to a question and have it stricken. During depositions, however, the defense may say: “Objection. You may answer if you know the answer.” Instead of describing the process, I will quote some fairly common nuggets. These are loaded questions plaintiff’s attorneys seem to like, and the answers that have worked best for me.

“Doctor, is it not true that you are recognized as an expert in the correctional field and have written papers about it, yet you are trying to defend a case where the defendant’s actions are below your standards of care?”
Response: “I have formed an opinion on the plaintiff’s access to care in this case, and there was access to care.”

“Doctor, you studied the policies and procedures at the institution in question. Are they not inferior in every respect to the policies and procedures in effect at the institution where you work?”
Response: “I have no proof that the policies and procedures in effect at the institution in question at the time of the alleged incidents caused the plaintiff’s loss.”

“Doctor, you are board certified in your specialty and have been recognized by correctional societies. How can you defend a physician who is not board certified and does not belong to any society?”
Response: “Board certification and society membership are not required by law to practice medicine.”

“Doctor, your institution is accredited by the (National Commission on Correctional Health Care, JCAHO, etc.). How can you condone medical practice by the defendant at a nonaccredited institution?”
Response: “Accreditation is desirable but not required by law. Lack of accreditation is not necessarily an indication of bad medical practice.”

“Doctor, do you not agree that the following omissions occurred in the (health record, MAR, orders, etc.) and that the documentation for this case is lacking?”
Response: “I did not find that these omissions caused the defendant’s loss.”

“Doctor, with your training and experience, is this the way you would have treated this patient?”
Response: “Not necessarily. However, what is in question here is not which choice of medical care plan other doctors could have made, but the determination that a reasonable care plan was formulated and implemented.”

After a few of these repartees, it is likely that even the most zealous plaintiff’s attorney will focus on the facts of the case. The witness for the defense will then have a chance to explore the real issues of access to care and reasonableness of the care plan and implementation. If questions regarding specialty care arise, it is proper to declare that one has no particular expertise in the field. After the plaintiff’s attorney is finished, the defense attorney may have more questions; these are generally friendly and geared to straighten out certain issues. There may be a redirect with the plaintiff’s attorney going at the doctor again. At any time the expert doctor is free to request a recess to go to the restroom or to rest.

After the deposition, the physician should be given the choice to waive proofreading and correcting the transcript, or to review it. I always review it. There are always a few typos and misinterpretations that may change the meaning of some sentences substantially. The doctor should be paid for time reviewing and correcting the transcript.

Going to Court
If the case is still in dispute, one may have to go to court. It should be noted that courts and medical societies have agreed that testifying in court is a form of medical practice subject to disciplinary action should deviations from medical knowledge and doctrine be found.

A court appearance may superficially resemble a deposition, and both are given under oath, but there are major differences. The schedule is much more rigid and may be quite inconvenient. An expert witness testimony may be carefully scheduled so as not to interfere with the witness’s private and professional life, yet last-minute court events may require the doctor to remain in the area on standby for what feels like an eternity. Postponements, cancellations and venue changes are all too common.

The courtroom can inspire awe and nervousness in anyone. There may be public, a full jury, family and friends of the plaintiff and defendants, legal entourage from both sides. A trial courtroom is not a place for the faint of heart.

During testimony, the doctor needs to follow the general script given during deposition or the plaintiff attorney may make much hay of the differences, trying to discredit the physician. Questions that did not surface during deposition may surprise the doctor. I have been asked how much money I make, how much I was being paid for being a witness, and so on. These may be cheap shots but could impress the jury unfavorably unless they are answered very professionally.

If all goes well, the doctor will finish and be excused. A certain disappointment can be felt. Trials seem to exercise a fascination of their own. However, the witness does not have a chance to see the beginning or the end. Often the witness will not know of the verdict for quite some time, and only after asking the attorneys specifically.

Satisfaction of a Job Well Done
A conscientious correctional physician can make substantial contributions to the cause of good inmate health care. In defensible cases, the doctor can rectify wrong perceptions and give a colleague much needed relief. In less defensible cases, the defense attorney can be persuaded early on about shortcomings, advised to settle and perhaps offered the chance to use the witness’s correctional expertise to organize or monitor improvements needed at the place in question.