I left the hospital after finishing my last shift before trial with good wishes from everyone at the hospital. The whole ED staff had been a tremendous support. Having a close-knit team working with you makes a huge difference in your confidence. Some times it was as if they could see that I started second guessing myself. Every one of them was supportive. “C’mon, WhiteCoat,” they would say, “if you didn’t catch that, you know damn well that no one else would have done so, either.” Emotional support is so important when going through litigation.

Another interesting twist in the case was that one of the nurses I work with had actually worked with the plaintiff’s expert witness. When she heard that he was the plaintiff’s expert, she would tell me “you’re SUCH a better doctor than he was — half the times he didn’t even examine the patients. He just stood in the doorway and asked them a few questions, then left.”
Don’t suppose there’s any way I can work that into his cross examination. Oh well.

In the years leading up to trial, I learned the importance of emotional support in dealing with the litigation process. On one hand, you can’t go it alone or the emotions will fester up inside of you. On the other hand, talking about why you are being sued makes you feel like you are admitting your inadequacies. Tough to talk about. You’re a doctor. You’re supposed to be smart, nice, and always right. No room for error when dealing with people’s lives. Difficult to reconcile that we’re looked down upon if we misdiagnose a problem, but we’re still human. Definitely leads to stress. We don’t want to be human, but we are.

So during the past three years, my family has had to deal with my intermittent mood swings, episodes of me beating a punching bag in our basement so hard the first floor of the house shakes, and frustration whenever I hear about the patient’s disease in medical journals or on the internet.

A hug, a kiss, and gentle words from my wife put everything back in perspective.

She’s the best. What would I do without her?

I sat at home like a lost soul the days before trial. Do I really want to do this? Yes. I’ve gone this far, I’m not bailing out now. It’s on.

Then I get a phone call from Vinny. The trial date is postponed. There goes pair of Jockey shorts #2.
“Are you kidding me? Why?”
“The plaintiff’s attorney chose to reject the first judge. Now we get put back in line to await assignment of another judge.”
OK, can anyone slop a little more stress on my back? I can take it. Really.

Fortunately for me, that delay allows me to cover a 24 hour shift for someone who was unable to work at the rural hospital where I moonlight. Good. It will get my mind off of things.
Those hopes were short-lived. Late in the afternoon, I get an urgent call from Vinny telling me I have to be in court at 8:30 AM the next morning. My shift ends at 8 AM and it’s a two hour drive to the city without traffic. No problem. After a bunch of phone calls, I get someone to relieve me at 12:30 AM. At least I’ll be able to go home and catch some sleep.

I’m wide awake on the way home, excited to finally get this trial over with.

I get a few hours of sleep that night, but I woke up early and couldn’t go back to sleep. I kept checking the clock, afraid I would sleep through the alarm. Finally I decided to just get up and take a shower.
After I got done drying off, I looked in the mirror, and . . . wonderful. My nose decided to celebrate Christmas a little early. I have a big honking zit on the tip of my nose. It’s not the kind you can squeeze, either. It’s this big red thing that makes me look like Rudolph. Ho friggin’ ho ho.
I clench my jaw and can feel the pressure building up in my head. I’m standing in a towel, so the punching bag in the basement is out for the moment. So I do what every other respectable guy would do in the same situation — I curse at the top of my lungs. The fillings in my mouth vibrated. My wife came running into the bathroom.

“Are you hurt?”
“No I’m not hurt. Look at my damn nose!”
“What the hell is wrong with you? All the kids just heard your little outburst, you know. Heck, probably the idiot neighbors down the street that always screech their tires in the middle of the night heard it. You happy now?”
“Good. I hope I woke them up — the idiot neighbors, not the kids.”
“Oooh. The jury’s just going to love you this morning.”
“Yeah. Especially the volcano on the tip of my nose.”

My wife whipped out a makeup kit and did a Hollywood makeup job on me. In no time, I felt like a movie star and looked like … well … let’s just say that the zit on my nose was a lot less noticeable.

I pulled my dress clothes out of the closet and realized that I hadn’t worn a suit in quite a while. Kind of nice wearing pajamas to work all the time. You get spoiled. Unfortunately, unless you’re Dr. Oz, scrubs aren’t cool out in public. On second thought, just scratch the whole “Dr. Oz” exception. Scrubs aren’t cool in public period. Sorry, Dr. Oz.
My suit was a little tight around the chest, though, so I tried a different one. That one was a little snug, too. My rippling pecs were pulling at the seams. Oh, well. I’ll just have to remember not to flex too suddenly.

My wife adjusted my collar, straightened my tie and gave me a kiss on the cheek. “You’re going to do fine.” The kids came up and each one hugged a leg. They probably didn’t know why they were doing it, but I got the impression that they could sense the tension in the air. It felt good to know they were pulling for me. Boy do I owe them a vacation when this is all over.

Hi ho, hi ho, it’s off to court I go.

(read previous posts in this series here)

More than a year passed between the deposition and any talk of a trial. Many times during that year, I felt like giving up, just settle the case and get the whole ordeal behind me. Vinny told me more than once that litigation often becomes a war of attrition – whomever gives up first is the loser. That helped keep my head in the game. I was determined to show everyone that the care I provided was appropriate.

The plaintiff’s attorney repeatedly told Vinny that he “wasn’t focusing on my care.” In fact, even the plaintiff’s expert stated that everything I did was reasonable. The only issue that the expert had with my care was that HE would have contacted a surgeon earlier in the patient’s course. That’s great that he would contact a surgeon sooner knowing the patient’s ultimate diagnosis and sitting in his living room somewhere sucking down a cold one as he flipped through the chart. Things are a little different when it’s real-time, you have eight other patients, you don’t know the diagnosis, and you’re doing what you can to save someone’s life.

The plaintiff also had another paid consultant who made all kinds of outlandish claims against everyone, but he’s a general surgeon who said that the last time he practiced emergency medicine was 30 years ago. Got news for ya, there Aesculapius, emergency medicine was hardly even a specialty 30 years ago. I’ll let Vinny drop that bomb on you during trial, though. This expert had testified in more states than I’ve ever visited. I heard one attorney in Vinny’s firm refer to the expert’s statements as “testilying.”

While I was frustrated that the Grinch was keeping me in the case, I found myself looking forward to trial. I was actually excited to show everyone how I did the best job anyone could do to save this patient’s life. I know some people dread the thought of having 12 people staring at you while some attorneys and experts say great things about you one half of the time and while other attorneys and experts say horrible things about you the other half of the time. Me, I couldn’t wait.

I headed back to Vinny’s office about a week before trial to prepare for my trial testimony. Basically, Vinny wanted to go over all the things we talked about before my deposition.

“You have to memorize every damn word of that deposition,” he warned. “If you say something different from your deposition during trial, the plaintiff’s attorney will jump all over you and make you look like a fool. You’ll be painted as someone who changes his testimony and who can’t be trusted.” The legal term for that technique is “impeachment.”

Vinny had developed a “theme” for the case. He encouraged me to mention the theme over and over during my testimony so that the jury would remember it once they went back to deliberate. Our theme was going to be “THINGS TAKE TIME.” We made the diagnosis, but it took a while for all the test results to come back. Things take time. Makes sense.

We would need to go through each test I ordered, why I ordered it, and how it contributed to the diagnosis. Since the major issue was whether or not there was a delay in obtaining a consult, we had to show that after each lab was ordered, it took time to get the results back. It wasn’t until all the tests were back that the diagnosis became more evident. We needed to hammer home the point that I was constantly acquiring data and that time was needed to retrieve the lab results and to refine the diagnosis.

Vinny told me to think about what the plaintiff was going to try to prove. That way I would know how he would prove me wrong . . . or at least TRY to prove me wrong. In most “failure to diagnose” cases, the physician is allegedly not smart enough to realize that a disease manifests itself in certain symptoms. For example, abdominal pain is usually seen in someone with primary sclerosing cholangitis. When a jury hears that statement, they might begin to think “if the patient had abdominal pain, why didn’t the doctor think of primary sclerosing cholantitis?” The problem is that the question smacks of retrospective bias. No one knew that the patient had primary sclerosing cholantitis when the patient walked into the hospital. So while abdominal pain may be “consistent with” primary sclerosing cholangitis, it is also a finding consistent with at least 740 other diseases as well. An example of a question that avoids retrospective bias might be “when a patient comes in with abdominal pain, what diseases should be in the physician’s differential diagnosis?” Even that question is too broad. No patient has “just” abdominal pain. Physicians have to look at the patient as a whole, not as a single symptom.

The plaintiff’s attorney will introduce the retrospective bias fallacy by asking a question such as “weren’t the patient’s findings consistent with [the missed disease]?” To avoid giving the jury the impression that the patient’s symptoms should have led me to think of the disease immediately, I had to avoid giving “yes or no” answers. Instead, I would need to say things like “In a patient who doesn’t have symptoms X, Y and Z, the findings are not consistent with that diagnosis.” Or I could also say “Possibly, but those symptoms are more likely to represent much more common diseases such as food intolerances, biliary colic, and gastritis.”

“Oh, and one last thing,” Vinny warned. “You have to keep a poker face. No matter what lies you hear, no matter how mad you get, you cannot show emotion while sitting at that table. I don’t want to see you making faces. I don’t want to see you shaking your head. Nothing. You understand me? Jurors don’t like it.”

“Sure.”

He continued on his tirade to drive the point home. “Once we nearly had to withdraw as counsel during a trial because a doctor was making such an ass of himself. He was smacking himself in the forehead, throwing his arms up in the air, and was holding up signs saying “Quack” to the jury when the plaintiff’s expert was testifying. The judge threatened to kick him out of the courtroom.”

I started chuckling while trying to think about how I’d react to the doctor if I was a juror.

“Then he testified and after he got done testifying, he walked down off the witness stand, stopped, looked at a wart on a juror’s nose, pointed at him and said ‘You have skin cancer.’ Then he walked out of the courtroom.”

We both laughed.

“The scary thing was that we won that case.”

“I get it. I get it. World Series of Poker. No goofy signs. Smile at jurors.”

My brain had officially become full. “I’m going home. See you next week.”

I added a page to keep track of all the posts – see the link to the right.

————————–

I was back in Vinny’s waiting room the following week. We were going to walk to the deposition together.
He busted out of the waiting room door with a big smile on his face. “Ready?” He asked.
“Yeah, can’t wait. Kind of like going to get my teeth drilled.”

Once again, the wind blasted us as we walked down the street. I had no idea where I was going, but with Vinny as my tour guide, all I had to make sure to do was avoid losing him. During our walk, he made small talk about another malpractice case he was dealing with. After the physician’s deposition, the insurance company was in a “settlement posture.” Apparently the physician was difficult to understand and had a thick foreign accent. He would make a “poor witness” at trial. “Unfortunately, juries around here just are not very forgiving of foreign doctors.”
Funny, I always thought malpractice was about the appropriateness of care.
Two blocks north, one block to the west, third building to the right.
We were officially in the enemy’s lair.

In the waiting room, there were four other people. They all stood up and shook Vinny’s hand when we entered. Then they all began chatting about “lawyer” stuff. I sat in a chair and watched.
“Can you believe Judge Smith’s ruling last week?”
“Oh I’m sure that Jerry will appeal it.”
“You don’t want to get on Smith’s bad side though. I heard that he got mad at an attorney and made him cancel his honeymoon trip to Greece to show up in court for a hearing.”
“Ah, you just have to milk his ego.”
This must be what it’s like when a bunch of doctors get together at a party – only we talk about wacky patients, funky x-rays, and all the lives we save.

An older man in a designer suit with a Rolex watch rattling around on his wrist opened the waiting room door and greeted everyone. That must be “the enemy.” It was. The plaintiff’s attorney. The thing that struck me most about the plaintiff’s attorney was his smile. When he showed his teeth, it reminded me of the caricature of the Grinch. Never got that picture out of my mind.

I have to admit that I got a little miffed when all of the other attorneys went up to him and shook his hand, then began joking around with him. How could someone that was supposed to be helping me be so friendly and nonchalant with the person that’s trying to bankrupt me?

The Grinch led us back to a large conference room in his office. Everyone took their seats at the table. I couldn’t help thinking how much money was being spent for all the different attorneys by all the different parties in this case just so this guy could ask me questions.

The plaintiff’s attorney asked me all about my history of employment and my family history. What does my wife do? How many kids do I have? What are their ages? I was already annoyed and the deposition had just begun. What does my personal life have to do with the case? I looked over at Vinny and he didn’t seem to mind, so I bit my tongue and answered the questions.
Then the Grinch started asking questions about how to diagnose the disease that the patient had. What signs are typical of this disease? How does one diagnose it? What should someone do to treat it? I did fine with those questions. So far, so good.
He pulled out a copy of the patient’s chart and handed it to me. Then he picked the medical records apart word by word. He wanted me to comment on pretty much everything that was written in the chart.
“Why did the nurse do this?”
“I don’t know. Ask the nurse.”
Then we got into a discussion about the definition of the term “clinically significant.”
“Was there anything of clinical significance to you?”
“In what sense?”
“Your evaluation of the patient.”
“That would lead me to think what?”
“I don’t know. I’m asking you.”
I could tell that the plaintiff attorney was getting frustrated.
“This is not to try to trip you up or anything. Juries just have to understand your thought processes.”
I felt like rolling my eyes and saying “yeah right” at that point, but I just smiled and nodded my head.

He asked me about the patient’s medications. Did I think he was taking them? How was I supposed to know?
I had to go through every aspect of my physical examination of the patient.
I had to comment on every aspect of all of the patient’s laboratory tests.

After an hour and a half, I needed to use the bathroom and asked for a break.
I got into the bathroom and started going when the door opened up. Vinny came in and stood two urinals down from me. Guys can never stand next to each other in an empty bathroom. It just doesn’t look right.
“So far, you’re doing great,” he whispered.
“What about…”
“Ssshhhhhh!” he interrupted and frowned. “People may be listening.”
I didn’t realize that plaintiff attorneys bugged their bathrooms as one of their sneaky tricks. I opened my eyes really wide, mouthed the word “OK,” and made a big “OK” sign with my hand. He squinted his eyes and frowned at me.

When the deposition started again, the plaintiff attorney got more gnarly. Why I didn’t do this sooner and why I didn’t order that test earlier? Why did I waste time ordering this test when the patient didn’t have the disease? Why didn’t I consult the surgeon as soon as the patient arrived? Initially, it appeared as if he was trying to trick me. But the more he asked the questions, the more I could tell that he really had little idea how medicine works or how to manage a significantly ill patient in the emergency department. Later, Vinny would tell me that the attorney was just “locking me in” to my version of the events so that his hired experts could then retrospectively criticize all of my reasoning.

After another 30 minutes, the plaintiff attorney closed his notebook and said “I have nothing further.”
“Sweet. I’m outta here,” I thought to myself as I pushed my chair back from the table.
Then one of the other attorneys spoke up. I slid my chair back in.

She started asking me all kinds of questions about whether the hospital “controlled my actions.” Like I was some marionette or something. Yeah, just call me Pinocchio. I told her that there were several hospital policies that the emergency physicians were expected to follow. She appeared flustered. Apparently, she just expected me to say “no.”
“Any other ways that the hospital controlled your actions?”
“Well, the hospital sometimes doesn’t have certain medications on formulary, so they routinely switch medications that I order … if that’s the kind of thing you’re looking for.”
She became even more flustered and dropped the issue. Later Vinny would chuckle about that. She was the hospital attorney and was trying to protect the hospital. She ended up doing damage, instead. He quipped that “lawyers shouldn’t ask questions when they don’t know what the answers are.”
Eventually, she settled on showing that I was an independent contractor when I performed services at the hospital.
She also asked me whether I had any criticisms of the nursing staff or the residents. I really didn’t. The nurse and residents taking care of the patient were both top-notch and provided excellent care.

After the deposition, I got a better idea of what the plaintiff was going to allege that I did wrong. I waited too long. I didn’t focus on the right things. I didn’t call consultants as soon as the patient hit the door.

I started to question myself, wondering if maybe the plaintiff was right. My doubts sometimes affected my clinical practice. I noticed that especially with critically ill patients, I tended to worry as much about the potential liability I could incur as I did about the patient’s medical problems. For a while, I found myself practicing defensive medicine – almost as if I would be able to compensate for this lawsuit by being “extra careful” with future patients. Looking back on those times, I can’t think of one instance in which those hundreds of thousands of dollars in extra tests made any difference in the patient’s diagnosis or treatment. All they did was penalize the patients on whom I ordered them.