Achieving a favorable verdict at trial often involves the power of perception. And, perception can be harsh. Let us explain.
Malpractice lawsuits are usually filed three years after the physician’s last encounter with the patient. The passage of time makes it less likely the physician will, at least at the outset, have any recollection of the patient or the care provided. The opposite is probably true for the patient, for whom the encounter is likely vivid. In our practice, we frequently interview physicians who initially have no memory whatsoever of the patient or the facts at issue.
Juries, like patients, expect physicians to remember all their patient encounters. Unfortunately, lack of memory may imply lack of compassion. Knowing this, we make every effort to “jog” the doctor’s memory of the patient/encounter. This can be done by reviewing the medical records and contemporaneous notes, in detail, for anything unusual or helpful to recollection. Putting the records in context with the time of year, day of the week, and names of other health care providers involved, can be useful. Our best tool: using pictures of the patient to trigger a memory.
Bottom line: As long as it is true, it creates a much better perception to the fact-finder if the physician, at the very least, testifies to a vague or partial recollection of the crucial patient encounter. The alternative may lead a juror to believe the physician simply doesn’t care enough to remember.
If you have any questions on this or any other legal issues concerning preparing a physician for deposition or trial, we are glad to help.
January 2015 — We are proud to announce that Waranch & Brown, LLC has been named by Fortune Magazine and LexisNexis® Martindale-Hubbell® as one of the Top Law Firms in the United States for 2015. This is the third consecutive year the firm has received this recognition.