In a trial's battle of the experts, how a medical expert presents testimony can be crucial in building credibility and connecting with a jury. And in the latest episode of Medical Testimony Master Class, Burton Bentley, II, M.D. highlights how a prominent medical expert’s explanation of his approach with patients was a powerful presentation technique in testimony that helped clear a California doctor in a $120 million medical negligence and battery trial.
David Pullman suffered facial paralysis after surgery to remove a non-cancerous tumor. Pullman claimed one of the surgeons in the procedure, defendant Dr. Marc Schwartz, failed to adequately inform him of the risks and benefits of the surgery and did not stop the surgery when his facial nerve was being affected.
At trial earlier this year, Dr. Bob Carter, a neurosurgeon at Massachusetts General Hospital and professor at Harvard Medical School testified concerning Dr. Schwartz’s advice to Pullman before the surgery, as well as his work during the surgery itself.
On the issue of informed consent, defense attorney Louis DeHaas, of La Follette, Johnson, DeHaas, Fesler & Ames, asks Dr. Carter what he would tell a patient if that patient asked for a range of chances for surgical complications.
Beyond merely answering the question, Dr. Carter turns to the jury and very naturally plays the role as a hypothetical treating physician in that case, answering as if he was speaking to the patient himself.
“I would have said, ‘Mr. Pullman, we’re likely to have a situation where, after surgery you would have a reasonable percentage chance of temporary problem that’s going to last potentially a few weeks, maybe a few months,” Dr. Carter said. “The risk of a permanent and severe problem? Low, single-digit percentage.”
Dr. Bentley said that is one powerful example of how a medical expert can connect with a jury.
“A very nice stylistic point that he did quite naturally is just dropping into that physician’s role. Because what is his role as an expert witness? It’s to [testify] to what a reasonable surgeon would or would not have done to… the plaintiff,” Bentley says.
“He essentially steps literally into that role. And I think it really crystallizes it.”
Dr. Bentley adds that Carter’s reputation as a preeminent expert in the field helped make that approach particularly persuasive. “I think when that’s done with knowing who he is, that’s not just some paid expert showing up, that’s the expert on point for this surgery, I found that very, very compelling as well.”
Dr. Bentley says that’s just one possible technique in a broader approach trial lawyers must work with their experts on in ensuring they testify as credibly and persuasively as possible.
“We’re always looking for the tangibles and intangibles, things we can bring forth from our experts,” Dr. Bentley says, adding that even simple things can be powerful in building credibility. “[Encourage] eye contact with the jury, speak to them like you could be their physician, avoid jargon and terminology that’s going to be over their head.”
Jurors ultimately cleared Dr. Schwartz in a trial in which the plaintiff's attorneys sought roughly $120 million.
Dr. Bentley’s thoughts on an expert stepping into a role as treating physician during a hypothetical are just a small part of the full episode analyzing Dr. Carter's testimony. In it, Dr. Bentley discusses approaches to cases involving informed consent, details how to frame testimony on statistics, and more.
Watch the full episode:
In each episode of Medical Testimony Master Class, Dr. Bentley uses real trial video to analyze the medical testimony that played key roles in cases ranging from car crashes to large-scale product liability lawsuits. Each episode will give you a front-row seat to Dr. Bentley’s analysis of the country’s best attorneys and how they, and their experts, tell the medical stories central to their cases.
Burton Bentley, II, M.D., is the founder and CEO of Elite Medical Experts, a preeminent firm that aligns university physicians and surgeons as experts for trial teams across the country, Dr. Bentley is a leading authority on the presentation of medical testimony. He’ll demonstrate powerful ways to have your expert resonate with the jury by properly setting the stage, demystifying medical constructs, teaching while telling the story, and using demonstratives to drive home key points.
Email Arlin Crisco at acrisco@cvn.com.
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