The defense attorney stomped into the courtroom, radiating nervous energy and anger. She dropped a copy of my Nursing Malpractice text onto her counsel table. When I looked at her, I knew that as the plaintiff’s nursing expert, I was in for a battle. My client had asked me to testify on behalf of a man who was injured by an intramuscular injection in his buttock. He developed a foot drop. He testified he felt an immediate pain that ran down his leg. There was nothing in the medical record that substantiated these symptoms.
My direct examination went smoothly and then I braced myself for the cross-examination. In her short skirt and high heels, the defense attorney stalked over to the witness box and began her cross. She was quick in her questioning and eager to pounce. We sparred until she got to these questions, which went along these lines:
Attorney: “Did you see anything in the medical record that said the patient had pain down his leg?”
Attorney: “The plaintiff testified he told his doctor about this. Would you expect the physician to document this if this happened?”
Me: “I can’t comment on what doctors are supposed to write or their standard of care.”
Attorney: “Now come on, Nurse Iyer, you know what happens in hospitals and how medical records are put together. If the patient had told his doctor, would you expect to see the information in the medical record?”
Me: “I cannot comment on that.”
Attorney: “Why didn’t the physician put the information in the medical record?”
At this point, my client might have been objected to the continuing line of questions. I should have stuck to my guns and replied, “I do not know.” Instead, I took a big misstep and answered, “Sometimes when there is a bad outcome there is a cover up.”
Oh, bad move! The judge, who had been mild up to this point, leaned over her area and breathed fire and smoke: “Nurse Iyer, you know better than to say that. You’ve been in my courtroom before.” She paused and every eye in the courtroom was on me. I willed the floor to open up and deposit me one floor down. The defense attorney asked for a mistrial. The judge took a break, and then returned to the courtroom to tell the jury to disregard what I had said, “It is true that there are sometimes cover-ups after bad outcomes, but we do not have evidence it occurred here.” The defense attorney was even angrier by this remark and asked for a mistrial again. The judge brushed the request aside.
My cross-examination continued. The attorney took my Nursing Malpractice book off the table and opened it up to the preface. She said, “Isn’t it true you wrote this book for plaintiff attorneys?” (She spat out the words “plaintiff attorneys.”) Since I have been trained to always request to see what the attorney is referring to when quoting my words, I took the book from her hands and said, “It says, ”This book is written for plaintiff attorneys, defense attorneys, risk manager, and insurance claims adjusters.” The defense attorney asked for a mistrial again because I used the word “insurance”. The judge denied her request.
The defense attorney finished up her cross-examination with my textbook by saying, “Isn’t it true you wrote that the expert should present information to the jury to the lowest common denominator?” I believe the attorney thought the phrase would insult the jurors. I replied that the expert should explain things so the jury could understand her.
The attorney finally said the wonderful words, “That is all.”
My client was gracious when I apologized for causing so much trouble. I learned some valuable lessons.
1. When asked the same question over and over, simply stick to the same answer.
2. Do not attempt to speculate as to why people did what they did. I should have simply said, “I don’t know why the doctor did not chart the complaints.”
3. You can’t expect to anticipate how your words will be used. I have written extensively and never dreamt the preface to that book could be twisted into something negative.
4. The jurors were probably not offended by the “lowest common denominator.” An acquaintance of mine who is an attorney said, “Pat, don’t worry. The lowest common denominator on that juror did not know what the phrase meant.”
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