The Physician as Witness

• Author: Daniel Small
• Profession: Is a partner in the Boston and Miami of ces of Holland & Knight LLP
• Pages: 189-196

Physicians are in many respects highly intelligent, well-educated, caring, and

articulate. However, doctors often fail to succeed as witnesses. Why? More

often than not, we as lawyers fail them in the critical process of preparation.

Preparing the physician witness poses signicant challenges. As in medicine,

the difculties vary from one “patient” to another. Nevertheless, we need

to work much harder to diagnose the disease, understand the symptoms,

and apply successful treatments.

The process of being a witness is very difcult and unusual for anyone.

It is especially difcult for well-educated professionals and particularly for

doctors. Doctors, like many other professionals, have the curse of the intelli-

gent witness. They are too accustomed to using their words and talking their

way out of situations, and as a result they make the worst types of witnesses.

The rst and most important thing to say about preparing the physi-

cian witness is, once again, “just do it!” There are a million excuses for not

spending adequate time in preparation: your schedule, the doctor’s sched-

ule, your discomfort, the doctor’s discomfort. None of them matter. Only

counsel can fully understand the risks to an unprepared witness and what

real preparation requires, so it is counsel’s obligation to push hard to make

it happen. You are not properly representing your client if you allow a wit-

ness to appear without thorough preparation. Finding the time to work

together can be the rst tough but essential challenge.

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Chapter 32

The Physician as Witness

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