9.17 Plaintiff’s Case

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

9.17 PLAINTIFF'S CASE

9.1701 Defendant Called as an Adverse Witness: Examination by Defense. Plaintiff's counsel may call the defendant as an adverse witness in the plaintiff's case-in-chief. This may be the only or best way to establish the medical treatment in question. Significant admissions may be obtained. Strategically, calling the defendant as the first witness of the case is likely to find the physician at his or her most vulnerable, awkward, and anxious. Not having seen how others testify, the defendant is more likely to make a poor witness. Proper trial preparation will help the defendant health care provider to be ready for such an examination.

When plaintiff calls the defendant as an adverse witness, should defense counsel take the opportunity to conduct a detailed examination of the defendant during the plaintiff's case-in-chief? One approach is to conduct at least an abbreviated examination to address and clean up certain issues so that they are not left unresolved until the defendant's case-in-chief. Under examination by the defendant's own counsel, the defendant will be able to tell his or her side of the story as desired by counsel, assuming the defendant has been properly prepared. Any worrisome points scored by plaintiff's counsel can be deflected or diluted by explanation of the circumstances and the questioned actions of an earlier time. If the defendant has been...