By Dr. Ken Broda-Bahm:
The Hippocratic oath also applies to doctors caught in the litigation process. In deposition, the rule is "first, do no harm" to your case. No one wins their own case in deposition. But a medical defendant might end up losing it by falling prey to some common mistakes. Depositions are taken in order to shape an adversary's case, and to be used one day by a potential fact finder. In our experience, jurors have a natural inclination to support the doctor. There is a good psychological reason for that: It is more comfortable to believe that those we entrust with our health and our lives know what they're doing. When plaintiffs are able to overcome this strong motivation to believe in the doctor, it is often because the doctor conveyed something in deposition or trial that unwittingly served to help the plaintiff.
For example, feeling the emotional insult of a malpractice case, the physician may come across as defensive, arrogant, or uncaring. Taking too much care to avoid error, the doctor might seem reluctant to say anything and, as a result, appear unhelpful and uncommunicative. Ultimately, jurors are looking to see someone they would trust as their own doctor. If they instead see someone who is uncertain, irritated, or frazzled - a fish out of water - they come to distrust the doctor's level of competence and care. That loss of credibility helps make a plaintiff's case by allowing jurors to set aside their default trust for doctors in order to say that in this case, or against this doctor, the patient actually has a valid claim. In this post, I'll provide a brief overview of ten areas where doctor defendants can adhere to a "do no harm" strategy during depositions.