In the typical medical malpractice case, the defendant doctor does not testify until the defense's case begins. He often sits at counsel's table, in full view of the jury, taking notes as the plaintiffs attorney puts on the plaintiff's case. The doctor's alleged wrongdoing is discussed by witness after witness, but not by the doctor himself. That is, until the defense puts on its case.

This is the typical path that a medical malpractice trial takes. But it is not the only one.

In Pennsylvania (and many other jurisdictions), plaintiffs can call a defendant doctor as on cross-examination as part of their case—even as their first witness. Doing so provides plaintiffs with an opportunity to control the narrative of their case and persuade the jury from the get-go in a novel way: through the doctor's own words from the witness stand.

This early advantage can be invaluable in medical malpractice cases. Thanks to societal norms, plaintiffs in such cases have an uphill climb when a trial starts. Before jurors hear an opening statement, they already know that a "good" person is accused of doing something "wrong." They know that a doctor—someone who in their minds is well-educated, has had extensive training, and has dedicated his life to caring for the sick—has been sued. Thus, the plaintiffs attorney needs to be persuasive out of the gate in order to chip away at jurors' preconceived notions about doctors in their communities.

A Quick Cross-Examination Refresher

There is no doubt under Pennsylvania law that a plaintiff can call a defendant doctor as on cross-examination during the plaintiff's case-in-chief.

Pennsylvania Rule of Evidence 611(a) allows a party witness in a civil case to be cross-examined by an adverse party on any matter relevant to any issue in the case, including credibility. Under Rule 611(c), lead questions are permitted on cross-examination and when a party calls an adverse party. In Gaul v. Conrail, 556 A.2d 892, 893 n.1 (Pa. Super. Ct. 1989), the court noted that "a witness may be called as on cross-examination when his interest is adverse to the party calling upon him or her to testify."

When a party calls a witness as on cross, "the testimony thus obtained is conclusively taken to be true if it is not rebutted by other evidence," as in Piwoz v. Iannacone, 178 A.2d 707, 710 (Pa. 1962). The Piwoz court added that the testimony elicited through this cross-examination "may always be contradicted by other testimony and if this is accomplished all of the testimony and the truth thereof is for the jury's consideration." Finally, when a party witness is cross-examined, the witness becomes a "fully competent witness for the other party as to all relevant matters whether or not these matters were touched upon in his cross-examination."

Cross-Examining a Defendant Doctor

There are three primary reasons why a plaintiffs attorney would want to call a defendant doctor as on cross-examination during the plaintiff's case-in-chief.

First, calling a defendant doctor as on cross-examination gives a plaintiffs attorney an early opportunity to fulfill the promises he made during the opening statement. This bodes well for the attorney, both substantively and from a credibility perspective.

As any jury consultant (or long-practicing trial attorney) will tell you, opening statements are crucial. They are where most juror biases are formed and overcome. They are when jurors' attention levels are at their highest. And, they are the point when many jurors (I've seen estimates upward of 80%) will make up their minds about who they think should win. By telling jurors what evidence they will hear, and then calling the defendant doctor as the first or second witness in their case and eliciting (hopefully) that exact testimony, the plaintiffs attorney can reinforce the favorable impressions he or she made with jurors during the opening statement.

A second reason to call a doctor as on cross-examination is because doing so eliminates the typical gap in time between an opening statement and a defendant doctor's testimony—a gap that tends to favor the defendant.

In my experience, jurors in medical malpractice cases who aren't persuaded during an opening statement tend to be deferential to defendant doctors. Those jurors will typically wait until they've heard from a doctor before seriously weighing whether the doctor is liable for the wrongdoing alleged by the plaintiff. This deference can be problematic for a plaintiff. If jurors are willing to withhold judgment on a doctor until he testifies, any testimony or evidence that comes before the doctor's testimony could be viewed by the jury in the light most favorable to the defendant doctor.

Finally, calling a doctor as on cross-examination during the plaintiff's case can be an effective way to keep the focus of the doctor's testimony to that which is beneficial to the plaintiff's case. When defendant doctors typically testify as part of the defense case, they've had the benefit of observing the trial. During that time, they've likely become more comfortable with the process and the jury. They've also had more time to prepare for their testimony—including pointing out any flaws in the plaintiff's case.

Most, if not all, of those advantages are stripped away when a doctor is forced to testify early in a plaintiff's case. Of course, any of the doctor's testimony that is problematic to the defense case could be contradicted down the road in the trial. But thanks to the cognitive bias of anchoring (where we as humans rely disproportionately on an initial piece of information when making a decision), this problematic testimony could still have some impact—even if it is contradicted—if it is elicited early enough in the case.

Increasing the Odds of Success

A plaintiffs attorney can improve the chances of a successful cross-examination of a defendant doctor by structuring the cross so that it both covers supporting evidence and connects back to his opening statement.

When a plaintiffs attorney cross-examines a defendant doctor as part of his case, the attorney must have the facts of record, as well as the supporting medical literature, to back up the attorney's theory. This information must serve as the attorney's road map for the cross-examination. That's because no matter what the doctor might say in his defense (or how charming he might be), the facts and the medical literature will speak louder. Favorable deposition testimony (again, with supporting medical literature where possible) is especially potent as it can box the doctor into an unfavorable position given his previous testimony.

A successful cross-examination must also keep the promises made by the plaintiffs attorney in his opening statement. It does so by bringing the jury right back to the themes discussed in the opening through the introduction of the best evidence the plaintiff has, such as medical records and admissions in depositions. Even where the doctor pushes back during the cross-examination, he or she is merely playing defense. The plaintiff, however, is in position to score points.

Keeping with the idea of a full court press right out of the gate, it is also a good practice for a plaintiffs attorney to call the plaintiff's standard of care expert immediately after crossing the defendant doctor. Doing so provides an opportunity for the attorney to hammer home the key theories he is relying on and to respond to any potentially damaging testimony from the doctor.

Most plaintiffs attorneys would agree that the key to winning a medical malpractice trial is to win the battle with the defendant doctor. If that's the prevailing wisdom, why wait until the trial is almost over before engaging in this battle?

In the right case with the right set of facts, calling the defendant doctor as on cross-examination early in the plaintiff's case-in-chief allows the plaintiffs attorney to exercise control over the doctor's testimony and thus the story the parties tell the jury. While the doctor will have an opportunity to score some points later at trial when he or she is directly examined by defense counsel, the time in between the cross and direct examinations may allow for the plaintiff's case to solidify in the minds of jurors.

Calling a defendant doctor as on cross-examination in the manner I've described above provides a unique opportunity for a plaintiffs attorney to tell a client's medical malpractice story three times in a row: during opening statements, through the defendant doctor as the first or an early witness, and through a standard of care witness immediately following the doctor's testimony.

In the right case, this repetition can build a persuasive case that is insurmountable—no matter how effective defense counsel and their experts might normally be in the courtroom.

Daniel Jeck is a shareholder of Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck.