Getting Called to Trial as a Fact Witness
Imagine how you would react when one morning, you open a letter addressed to you and it is a lawyer calling you to trial as a fact witness. The letter requires that you provide evidence about a patient that you treated two years ago. As you keep reading, it requests that you “kindly reserve these dates in your calendar…” and they span over two weeks.
My reaction, when this scenario happened to me, was shock as the following thoughts went through my mind:
“Who was that patient again?”
“I don’t work at that clinic anymore!”
“Did I do something wrong?”
“Is the physiotherapist that I co-treated the patient with called to trial too?”
I want to take this opportunity to share what I learned through getting called to trial as a fact witness not once, but twice. A fact witness may also be referred to as an “expert witness” or “medical witness.” Physiotherapists may be called upon to testify in different capacities, from being a fact witness to a defendant witness in a malpractice suit. The below will focus on my experience of being a fact witness.
The first time I was called as a fact witness was in 2015. Soon after I had received my notice in the mail, I received an email from the lawyer’s assistant with my physiotherapy record from two years prior. I did recall the patient and reviewed the notes in detail. I also coordinated a phone conversation with the patient’s lawyer.
I decided to also reach out to my College’s Practice Advisor. I was reassured that, many times, trials will get resolved within days before the court date. I asked questions and it was helpful; I left the phone call feeling reassured.
When I spoke with the lawyer, I first explained that I had met the patient over three years after their accident, and that I had had a limited number of follow-ups with them. The lawyer was surprised to learn this. I also raised the question of whether the other treating physiotherapists were also getting called to trial, and the lawyer was not aware that there were other practitioners within the physiotherapy record. One week later, I received an email explaining that I would not be called to trial.
Knowledge is power, and you can speak to your physiotherapy knowledge from a place of confidence.
Over a year later, I got a call from another lawyer’s assistant about being a fact witness for a different patient. Much like round one, it had been two years since I had last seen that patient. When I was mailed the summons, the following was stated on the form:
IF YOU FAIL TO ATTEND OR TO REMAIN IN ATTENDANCE AS REQUIRED BY THIS SUMMONS, A WARRANT MAY BE ISSUED FOR YOUR ARREST.
My blood pressure went up when I read that “note”! I was again emailed my physiotherapy record, which I reviewed. I twice met with the lawyer leading up to the trial, which was anticipated to span over three weeks. The day that I was called to trial, I was quite nervous, but was later sent home, as one of the other witnesses’ examinations had taken longer than expected.
When I returned to court, the opposing counsel came up to me in the waiting room, and said “I’m the bad guy,” with a joking smile. While my first instinct was to laugh out of comic relief, it made me feel a bit uncomfortable.
When I was called to the stand, I was sworn-in and promised to tell the truth. I was provided with the same binder of patient notes that each member of the jury was provided with. The direct examination was more straight-forward than I had expected. Throughout my examination, I was instructed to turn to, for example, “exhibit 30, tab 4,” which contained my records and was then instructed to explain my assessment and treatment with the client. The cross examination by the opposing counsel was short, and similarly involved questions about my record. For a couple of the questions, I said “I don’t remember” – because that was the truth, and was not pressed further.
This experience made me grateful that I had been diligent with my record keeping. A helpful article entitled “Why are your clinical records being requested by legal counsel?” is housed on the CPA website. Log in and go to Practice Resources > Resources> Risk Management Resources to access this article. It helps physiotherapists understand how records are used in legal proceedings and how to improve record keeping for their interpretation in a legal matter. Key record keeping recommendations include being as detailed as possible, ensuring legibility, and defining all abbreviations.
Remember that, ultimately, you are a health care professional with a wealth of knowledge. Even though it is a stressful situation, all you have to do is be honest and answer the questions to the best of your ability. Knowledge is power, and you can speak to your physiotherapy knowledge from a place of confidence.
Over to you: While respecting patient confidentiality, what experiences have you had with the court system? What tips can you share if you’re ever called to court as a fact witness? Start the conversation below and let’s talk: