9.18 Cross-examination of the Plaintiff’s Fact Witnesses

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

9.18 CROSS-EXAMINATION OF THE PLAINTIFF'S FACT WITNESSES

9.1801 The Plaintiff. In most medical malpractice cases, the patient has suffered a grievous injury or died. Thus, the plaintiff will be perceived by the jury as a victim, whether of the defendant, of circumstances, or even of himself or herself. Because of this status as a victim, defense counsel should tread cautiously. "Beating up" the plaintiff or harsh questioning will likely do more to alienate counsel from the jury than to "expose" the plaintiff as unworthy of a verdict. These considerations also apply to the statutory beneficiaries in a wrongful death case.

Nevertheless, there will be cases in which the plaintiff must be pointedly cross-examined. In some cases, the defense of the case is the plaintiff's failure to follow physician recommendations or otherwise act reasonably in looking out for his or her own medical condition. However, even when contributory negligence and mitigation of damages are valid defenses, the best approach (absent a plaintiff who is obviously a liar) is firmness and persistence. Histrionics and "righteous indignation" are appropriate in only the rarest cases. ¹¹¹

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Examination of the plaintiff should begin with the plaintiff's own knowledge of his or her medical condition, including the foundation that the plaintiff's awareness of the condition and its implications resulted in the plaintiff pursuing professional medical care in the first place. Having obtained medical care and a diagnosis, the plaintiff was required to act reasonably to avoid risky behavior and to notify the physician of any changes or unrelenting problems. The plaintiff may also have been given various options for treatment, and he or she may have made certain decisions about...