Courting Justice: ENT Surgeons in the Witness Box

For medical professionals, operating within the legal sphere involves a learning curve and a period of adjustment. Legal terminology is a good example. “I’ve seen so many cases where people are asked, ‘What is the definition of “standard of care”?’ and they struggle,” Dr. Terris said. “Even though we as physicians don’t think about the legal definition of the term, you need to understand it if you’re going to do this kind of work.”

The pace of legal proceedings is infamously slow, a fact that has astonished physicians who work on medical cases. “I think if you asked in a questionnaire to physicians what surprised them most about being expert witnesses, the absolute number one answer would be the length of time the process takes,” Dr. Postma said. “It can be so unbearably drawn out, it’s downright funny. Like, one weekend I’ll be looking at a box of legal material in my study, and there’s dust on it because it has been two years. So, I call the attorney on the case, and she says, ‘Oh, it’s still moving.’”

Dr. Gillespie recalls a case he worked on for which a trial date had been set, but which was ultimately dropped by the plaintiffs. “They realized they were going to lose,” he recalled. “But it had gone on for six years! I told one of the attorneys, ‘You know, they built Hoover Dam in four years.’ It can be excruciating for the defendant physician, who may feel scrutinized and impugned as this process plays out.” Indeed, lawsuits can take a high emotional toll on the medical professional defendant. “It can be lonely for them, so serving as an expert on the defense side, you feel like kind of a friend to that practitioner,” Dr. Gillespie said.

One of the steeper areas of the learning curve concerns the ability to answer attorneys’ questions accurately and concisely. “If you’re going to do this kind of work, it’s your obligation to anticipate what questions you’re going to be asked and make sure you’re ready to answer them,” Dr. Terris said. “I feel a certain amount of pressure to perform well. Good attorneys can help with that process, especially in preparing a less experienced witness.”

Listening skills become especially important. “You can’t be thinking of your answer before the question is asked,” Dr. Gillespie said. “You have to listen to the wording of the question. My most acute listening skills are probably applied during depositions and testimonies.” A common mistake witnesses make is talking too much during the deposition. “Just listen to the question and then answer it. If it’s a yes/no question, your answer should be either yes or no,” Dr. Terris cautioned. “It shouldn’t expound beyond that, except in rare circumstances.” Expounding becomes necessary, says Dr. Gillespie, “when the question is asked in a way that will make a yes or no answer sound like you’re saying something against the side you’re representing. You have a right to expound upon your reasons for answering a certain way, as in ‘Yes, but in this circumstance’… etc. Take the time to make these points during the deposition because it is meant to get your opinions on the record.”