Article Date: 9/1/2009

In Case of Litigation PART II
special report

In Case of Litigation PART II

In the second of this two-part series, the authors discuss the malpractice trial itself, including closing statements and the verdict.

MARC D. MYERS, O.D., ANDREW GURWOOD, O.D., F.A.A.O. Philadelphia, Pa.

In the first part of this two-part series (OM August issue), the authors recounted their experiences with pretrial proceedings. Here, they discuss what occurred during the ensuing malpractice trial and its outcome.

All rise

The trial began with the judge reviewing the accusations made by the plaintiff and hearing motions (an oral or written request to have the court or the judge issue a ruling or make an order regarding legal questions posed by the prosecuting or defending attorney). There were motions that clarified which witnesses would be called during the trial and the order in which they would present their testimony. There was also a motion to have my co-defendant's case dismissed. When the judge ruled against the motion for case dismissal, and it was clear there would be a trial, the next step was jury selection.

It took six hours to select the eight jurors seated in this case; in many instances it takes longer. This process is very important, as both sides are engaged in a search for jurors who appear open-minded and willing to hear the facts of the case. My attorney informed me that his goal was to find educated, working people who would have an accentuated ability to process the complex medical information involved in the case.

Once the jury was selected, the trial began with opening statements; the plaintiff's attorney presented his case first. Opening statements provide the jury with an outline of the accusations in the case and the general theories regarding the acts of commission or omission associated with the defendant's alleged guilt or innocence. This is an opportunity to convey a first impression of the case to the jury. Opening statements can be brief or lengthy, to the point or full of drama. It comes down to the style and strategy of the attorney.

Next, the plaintiff's attorney presented their side of the case. In this phase of the trial, expert witnesses are called to the stand, and their credentials are reviewed. This ensures that witnesses who have been selected as experts qualify as such. If a nonexpert was allowed to take the stand and make nonsensical or false remarks, it could irrevocably taint the proceedings. Plaintiff and defense attorneys both have the opportunity to bolster or discredit the credentials of the experts and make motions to have the “experts” expelled. Once the experts are deemed appropriate to comment on the case, questioning begins, first by the plaintiff, then by the defense (cross examination). An expert who is representing the plaintiff has the job of casting doubt on the clinical decisions made by the defendant. As a defendant, this was quite unnerving. To sit quietly and listen while someone literally precedes line by line through your chart, scrutinizing what was documented and how information was assimilated and interpreted in the diagnosis … well, it's difficult to have to watch quietly.

Following the plaintiff's experts' testimony, witnesses, such as family, friends and even coworkers may testify on behalf of the plaintiff as to how the loss has altered the plaintiff's life. The plaintiff's case often concludes with the plaintiff taking the stand and personally recounting their interpretation of the events and the medical management and the residual impact the loss has had on their life. Following this, the prosecution declares itself finished (the prosecution rests).

Then it's the defense's turn. Our case also began with the calling of expert witnesses. The defendant's experts assume the job of refuting the prosecution's experts while explaining why the defendant's actions were appropriate.

Our expert witnesses were all world-renown individuals, solidly backed by supporting literature (some of which they wrote) and firmly supportive of our position. The plaintiff's experts were made to appear weak in their credentials with respect to the case at hand (especially in the area of retinal treatment). The defense attorney was able to identify specific areas where credentials and experience made the prosecutions testimony unable to properly support their position.

Being an experienced and respected practitioner, having training that is acknowledged by colleagues to be exemplary and having a record of relevant publications in the peer-reviewed literature, provide the foundation for a most effective expert. It is imperative to remember that experts must perform well at the time of the deposition and during trial. They must have knowledge, credibility, savvy and charisma in order to be convincing in the courtroom. Obtaining an expert who has these qualities and has the ability to convey their message in a clear and “common” fashion is essential.

Conventional wisdom is to avoid using experts who may be personal friends or colleagues. A friendly relationship may bring the credibility of the expert's testimony into question. My attorney did ask whether there were experts that were preferred, but ultimately the task of making the decisions was left to him.

The defense experts, without mentioning them by name, included a LASIK surgeon, who performed some of the first procedures in North America and remains one of the busiest surgeons on the East Coast, a practicing retinologist, who has more than 20 years of experience, and a second practicing retinologist, who has edited the largest-selling textbook in the history of eye care.

Experts for the plaintiff included an optometrist, who made the challenged claim that 20 years earlier he completed a residency in the area of retina (this fact was mentioned in his deposition, but the credential was omitted from the curriculum vitae [CV] which he submitted for trial), as well as a general ophthalmologist/educator who stopped practicing as a retinologist more than 10 years ago. Without overtly disrespecting the credentials of the plaintiff's experts, the defense attorney delivered the message that although the experts' CV appeared impressive, their accomplishments, training and knowledge were not “the proper tools” for accurately preparing comment on this case.

Following the presentation of expert testimony, the defendant may take the stand in his or her own defense. Being called to the stand was intimidating, but it was clear that it would permit additional explanations of the events, providing insights as to why decisions were made throughout the medical management. In this case, since the defendant was a residency-trained optometrist with numerous publications and presentations on record, he was able to serve, in the eyes of the jury, as an additional, credible expert. The defense attorney made sure the jury saw it that way. This was the denouement of the trial. Typically, after this, the defense rests.

During closing statements, the attorneys provide a synopsis or summary of the facts of the case, as well as summarize and solidify their respective claims. This is the only phase of the trial in which the defense presents their material first. The plaintiff is permitted the last word.

In this case, the defense attorney's performance during closing arguments was nothing short of spectacular. The message he delivered focused on the testimony of the expert witnesses. By comparison and contrast of their credentials and modes of practice, it was demonstrated to the jury how the defense's experts were far more qualified to provide comment on the case compared with the plaintiff's. In a down-to-earth way, he explained to the jury how his father had taught him to use tools to fix things and how each tool had a specific purpose. He compared the proceedings of the trial to making repairs with a tool: When the wrong tools are selected, the job cannot be completed properly, resulting in a poor outcome. He explained that the experts for the plaintiff might have expertise, but their expertise amounted to being “the wrong tools” for this case.

After the closing statements were completed, the court rested, and the jury received a set of instructions from the judge. In this phase, the judge outlines the charges against the defendant and stipulates the procedures that the jury is to follow while coming to a decision. That decision must be based and supported by the law. Once this was completed, all parties were excused from the courtroom and informed there would be communication when a verdict was reached to facilitate returning for the decision.

After the court is dismissed, the jury retires to deliberations (the process of analyzing the information for the purpose of rendering a verdict). In open and shut cases, the average time to a verdict is 60 minutes or less. Also, in cases in which the defendant is acquitted, no time is needed to settle on a penalty.

The defense attorney was the first to hear that a verdict had come down. He called nearly an hour-and-a-half after dismissal, immediately after he received the notification. That time, while I was seeing patients, seemed like a week-and-a-half.

My co-defendant and I were found not guilty on all accounts.

It's difficult to convey the feeling one has when they learn they are being sued for what a patient believed to be negligent care. The fear of professional consequences and monetary loss is indescribable. These feelings hit you like a wall when you receive the subpoena, and they stay with you … you obsess over them … just imagine having to cope with that level of anxiety for four years.

After the relief set in, I spoke to a few close colleagues about the general proceedings. These circumstances have made us aware of this potential black hole, and, as such, we have decided to make a conscious effort to become outspoken voices on the subject of practicing defensive medicine.


The foundation of good clinical practice dictates approaching every patient encounter as if you know that case is going to be peer-reviewed. This includes not only your analysis of the data but also the data gathering itself, as well as the recording of pertinent information, such as the problem list and the plan and follow-up assessment for each issue.

Proper, defensible care entails the following elements:

Reassessment. Whenever a medication or treatment plan is initiated, there must be a scheduled reassessment. Remember, monitoring and doing nothing is doing something. If you can demonstrate that you reinitialized the therapeutic plan based on a reassessment, you will get into less hot water if your diagnosis turns out to be wrong than if you were right but encounter a complication with no evidence of scheduled reassessment.

Documentation. The golden rule of maintaining patient records is: “If you didn't document it, it wasn't done.” Write down everything. Make your writing legible. Phone conversations, drawings, notes, all need to be in the patient record. If you write a letter of correspondence, put a copy in the file. If you prescribe medication, record what you wrote, or make a copy and put it in the chart. Remember: Photodocumentation is worth a thousand words.

Don't alter records. If you wind up in a dispute, state your case. If you alter your records to support your case, you are committing fraud.

Referral. Refer early, and refer often. Don't “hot dog” it. When the case is not proceeding the way you would predict or it's more complicated than you first thought, refer the patient to an appropriate expert. When referrals are necessary, document the content of phone calls between yourself and the consulting practitioner. Make the appointment for the patient when a referral is required, and follow-up with the patient to ensure he went. Insist on a written report from the doctor who completed the consultation. Finally, make sure a follow-up visit is scheduled in your office to reassess the plan following the consult.

Communications. The value of an attentive doctor-patient relationship cannot be overstated. It is well documented that patients do not sue doctors they like and with whom they have good personal rapport. It may sound overly simplistic, but taking the time to listen to patients when they have questions or concerns and allowing them to actively participate in the decision-making process is an essential component of achieving success in every case.

If you make a mistake, acknowledge it, and say you're sorry. As long as the error wasn't intentional, with malice, patients generally realize that everything has some relative risk. Being willing to make someone “whole” in your office — by listening, discussing or responding within reason — stops most confrontations. Patients get angry when they feel that consequences or complications were not adequately explained. They become resentful when they feel communication was severed, when they sense a lack of caring, or when they feel abandoned or trapped without recourse. These situations lead to legal action.

Legalities. Be aware of the terms of your professional liability insurance. Make sure you understand what is covered and to what degree. Make sure your policy is kept current and that monetary limits are periodically revisited. Do not cut corners on malpractice insurance.

Understand the laws of your state as they apply to your scope of practice. Ignorance of the law is never a valid defense. Stay within your legal boundaries.

Don't push the envelope or blur the line. Know your region's standards of care. Avoid exotic solutions, such as off-label medications or fringe procedures, or ones with which you have minimal experience. If you need help, look it up in a book, use a refereed online resource, or contact a colleague. Remember that, as the physician of record, you are responsible for the consequences, and the resulting damages, if you undertake to treat a condition or, alternatively, fail to initiate treatment when needed. OM

Dr. Myers is in private practice in southern New Jersey. He also serves as a clinical consultant for the Pennsylvania College of Optometry at Salus University and The Eye Institute of Pennsylvania.

Dr. Gurwood is in private practice and a professor at Pennsylvania College of Optometry at Salus University. E-mail him at

Optometric Management, Issue: September 2009