Listen, Answer the Question, and Shut Up

Hiller Zobel, LLB, a retired judge and co-author of an updated book on doctors and the law, discusses how physicians can best help themselves when medical malpractice is alleged.

Doctors who do well in the operating room or emergency department don’t necessarily do well on the witness stand.  

So retired Massachusetts Superior Court Associate Justice Hiller Zobel and Stephen N. Rouse, MD, childhood friends, decided to write a book to demystify the process for both defendants and expert witnesses.

Doctors &  the Law, first published in 1993, has been updated for the digital age, with an e-book version and advice on dealing with issues raised by cell phones and the Internet.  

The update, subtitled, “A guide for physicians entering uncharted waters,” was published earlier this year by CRICO, a group of companies owned by Harvard medical institutions to serve their medical communities.

Judge Zobel spoke with HealthLeaders about the updated book recently. The transcript below has been lightly edited. 

HLM: Why did you decide to write this book?

Judge Zobel: I had seen enough doctors on the stand, not just in malpractice cases, but generally, to know that they could use a little help in being a witness.

HLM: What is the most important message of the book?

Judge Zobel: The general message to a doctor who's sued is: Of course, you think the world is ending, but it really isn’t and things are better than you think.

This book will help you to deal with what is a traumatic experience. The chief message to a doctor who is testifying or is an expert witness is this: Listen to the question, understand the question, answer the question and shut up.

HLM: Why do they need to shut up?

Judge Zobel: Doctors, particularly doctors who are sued, feel that it is essential for them to explain everything. In doing that, they expose themselves to further cross-examination and serious pitfalls.  As an expert, they expose themselves to being cut up [by the opposing lawyer] and, in essence, discredited.

HLM: Why do you think it is so traumatic for doctors when they get sued?

Judge Zobel: One of the reasons doctors get into medicine in the first place is to help people.  People come to them for assistance, and the doctor does his or her very best to help the person, cure them, or at least deal with their medical problems.

All of the sudden, one of the people the doctor has been trying to help turns on him. That’s a very deep blow to anybody, but particularly to a doctor because the doctor’s whole frame of reference in dealing with peopled is 'I'm here to help you and getting you better is the most important objective for me.' 

There is also an element in the doctor’s reactions of 'I didn’t do anything wrong. Why are they saying I did something wrong?' Or 'maybe I screwed up somehow,' or 'maybe I shouldn't have prescribed that particular medication. Or 'maybe I should have asked for a particular test I didn’t ask for.'

In other words, the feeling that maybe the physician dropped the ball somehow. Of course, occasionally there is the feeling of 'I sure blew it, I know I blew it.'

HLM: Doctors sometimes cast themselves as victims of frivolous lawsuits. Do you agree?

Judge Zobel: I think that perception is flawed. The fact of the matter is that nine cases out of ten that go to trial result in a verdict for the defendant. People like doctors more than they like lawyers. Most of the time, the case is for the doctor to lose rather than for the plaintiff to win.

I charged a jury in a malpractice case that malpractice is really another word for a particular kind of negligence. And negligence is carelessness, that is, failing to do something a reasonably competent physician would have done, or doing something a reasonably competent physician would not have done.

The jury came back with a plaintiff’s verdict, and I got a letter from the doctor saying 'I resented what you charged to the jury. I am not a careless doctor. I’ve been in practice for 30 years and no one has ever accused me of being careless.

I wrote him a note, and I pointed out to him: The question is not what you’ve been doing for 30 years. The question is what you were doing on that particular day or did at that moment.' 

HLM: What new ground does the book cover?

Judge Zobel: The statutes differ across the country, but the general idea is that when the doctors say to the patient, or more likely to the patient’s survivors: 'I’m very sorry,' what the doctor says under those circumstances can’t be held against him or her.

I think that’s very important because the first thing the patient wants to know or what the survivors want to know when something obviously went wrong is what went wrong and how did it happen?

The doctors do not have to give a detailed description of why it happened. It suffices to say: We don’t exactly know and were going to find out, and of course we are going to tell you.

HLM: One of the big changes since the last book is the rise of the Internet. What does that mean for physicians?

Judge Zobel: It means that the doctor’s professional life is pretty much open. If the doctor has written articles, other people will find them.

HLM: What would you say to doctors who want to play a role in their defense?

Judge Zobel: I would say in the first place, 'You are not going to be doing any of the talking. Therefore, you are going to have somebody working with you who knows what he is doing.'

It is very similar to being a patient and going into the operating room. There is the surgeon.  There is the anesthesiologist. They know exactly what they are doing.

The fact that you don’t know, in a general way, what is happening [in a legal case] is beside the point. As the old vaudeville line goes, 'You’re not the head man in that show.'