9.23 Examination of the Defendant

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

9.23 EXAMINATION OF THE DEFENDANT

While an expert witness technically has more latitude in testifying than the defendant and can be tremendously important to defending a case, the defendant physician plays a critical role in the defense. Therefore, a defendant should be carefully prepared for undertaking the vital task of defending the decisions and actions at issue. The defendant is under tremendous pressure during his or her testimony that the expert does not face. A physician rarely has his or her judgment questioned and is certainly not often scrutinized as he or she will be on the witness stand. It is generally easier to speak in the defense of another than in one's own defense. Further, an experienced expert may have testified at trial a number of times, while the defendant will not usually have testified often, if at all. Nonetheless, the presentation of the defendant should not be minimized. Every effort should be made to present the defendant as open, likable, and firm but not defensive about the challenged actions.

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The defendant should address the jurors directly, making eye contact as he or she speaks. The defendant should be prepared to calmly and clearly explain all of the actions challenged in the case, demonstrating the significant risks posed by any actions or inactions for which he or she is criticized. Although the defendant will rarely be offered as a standard of care expert and will not offer opinion testimony, the defendant can nonetheless explain the actions taken as well as the actions avoided. This type of testimony is invaluable in demonstrating to the jury that the proper practice of medicine is not a "cookbook" exercise but rather involves skilled judgment and a...