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No more Dr. Nice Guy: the outcome of a medical negligence lawsuit often depends on the doctor's likability. Get jurors to see beyond it to the merits of the case.

Article Excerpt
I handled my first significant medical negligence case when I was a young lawyer--much longer ago than I would care to admit. My clients were a young couple from rural Wisconsin whose first child was delivered by a family practitioner in a local hospital. The labor was prolonged, and the doctor used forceps to deliver the baby. The baby was born severely depressed and ultimately was diagnosed with significant neurologic impairment attributed to intrapartum asphyxia.

There was no electronic fetal monitor at the hospital, and the labor record was sparse, with isolated fetal heart documentation by auscultation (listening via stethoscope on the mother's abdomen) performed by an obstetric nurse. The physician, trained in the Philippines, had limited experience in obstetrics and a modest command of English. He stayed at the patient's bedside throughout most of the labor.

I had no trouble finding qualified experts, including another local family practitioner, who were willing to testify about the physician's and nurse's negligence, as well as causation. In essence, the defendants failed to recognize shoulder dystocia and monitor the fetus adequately, resulting in a traumatic mid-pelvis forceps delivery. The defense had numerous opposing experts who disputed these opinions.

I dug into the medicine and felt I was making good points in extensive depositions of the parties and opposing experts. The case was being defended by the patriarch of the Wisconsin medical-negligence defense bar, who was prone to salty language and quaint colloquialisms. He offended my pediatric neurologist--a woman--at deposition by insisting on addressing her as "madam" rather than "doctor." His depositions were short, and his questions mostly avoided the medical issues.

During one trip to New York City for the depositions of two of his customary stable of birth-injury experts, I found myself at the bar in our hotel with the defense lawyer, who was in a particularly loquacious mood. He complimented me on my grasp of the technical medical issues and the points I was making with his experts.

I thanked him and started talking about the relative merits of auscultation versus electronic monitoring. He cut me off, saying he didn't think he'd ever get the hang of "all this technical stuff." I agreed that it was complicated, but I wondered how he could feel comfortable defending these cases without a strong grasp of the medicine. In a moment of stark candor, he told me that these cases weren't about medicine and that there are only three real defenses to any medical malpractice case:

* My client, the doctor, is a really nice guy.

* My client, the nice-guy doctor, really did his best.

* My client, the nice-guy doctor who really did his best, sure is sorry if everything didn't work out...