Today was the big day.

Last night after court ended, we hung out in Vinny’s office for a couple of hours going over my testimony. They wanted to make sure that I knew my chart and my deposition cold. I did. I gave them some pointers on what questions to ask me.

Louise needs to lay off the caffeine. She can’t handle stress very well. At one point she stopped in mid-sentence, grabbed me by the shirt sleeve and said “You are fifty percent of our case. You can’t get mad at the other attorney. The jurors have to like you. This is our case to lose.” My first instinct was to say “No, this is your case to lose, so back off.” But I bit my tongue. Maybe it was my lack of sleep, but she was really getting on my nerves.

So this morning I get to court and everybody is asking me if “I’m ready.” I was ready a month ago. I can’t wait to get up on the stand and tell my story. Everyone wants to know if I’m worried about the Grinch. Nope. Not a bit.

As I looked over to the plaintiff’s table, the Grinch appeared even more nervous than usual. He was sitting at his table ruffling through his notes, running his hands through his hair, and feverishly writing things down on a legal pad.

I made a point to loudly pull up the chair to the desk right next to his table and sit there whistling while reading a newspaper. Each time I turned the page, I ruffled it loudly just to irritate him. I could tell it was getting to him. Bet his underarms had a couple of huge sweat stains right about then.

On the inside I was a little nervous. I think everyone has a fear of the unknown – not knowing what questions are going to be asked and worrying that you may say something that gets taken the wrong way and ruins your case. It made me feel better seeing how nervous the Grinch had become. He knew that I was his make or break witness. If I did well, his case was pretty much blown. If I did poorly, he might have a shot. Knowing, or at least thinking, that I ruffled his feathers as I ruffled the newspaper gave me a sense of zen inner peace before my day began. I once attended a lecture on medicine and the law and a quote I heard about witness testimony kept ringing through my mind: “Be like the label on a jar of mayonnaise – keep cool, do not freeze.”

Everyone had gathered and the judge brought the court to order. The Grinch stood up and called me to the stand.

Here goes.

I was considered an adverse witness. That meant that the Grinch could ask me very leading “yes/no” questions. As my testimony progressed, I was becoming frustrated because the Grinch only brought out portions of the history favorable to his case. He wouldn’t allow me to say anything about other points that would explain his incorrect inferences.

One of the issues in his case is whether the patient’s abdomen was bleeding. It shouldn’t have been an issue because it wasn’t bleeding. Never. But the paramedic’s note said that there was blood, so the Grinch made it an issue. He never once asked me to describe the patient’s abdomen. He was also waving the paramedic’s note in front of the jurors, but he never once showed that note to me. That really made me mad. In fact, I tried to reference to note in my answer to one of his questions and he cut me off short. I asked him if I could finish my answer and the judge stopped me and said “No, it was a yes or no question.” Son of a bitch.

One point of contention is that he asked me several questions in a row whether or not the “standard of care required” that I do certain things, such as calling the surgeon immediately, getting an operating room ready, etc. I told him that the standard of care did not require that I do any of those things. Several minutes later, he prefaced a question by saying that I admitted a surgeon should have been called earlier. I denied it and then he demanded that the record be read back. I stopped him and clarified my answer.
“Let me be clear. The standard of care absolutely did not require me to contact a surgeon as soon as the patient arrived at the hospital. Period. You heard it from several experts and now you’re hearing it from me.”
He didn’t like that very much.
On the inside I was high-fiving myself. On the outside, I had a Hellmann’s label stuck to my forehead.
The Grinch ended his questioning a lot more quickly than he apparently planned.

Then Louise got up and started asking me questions. A sudden jolt of fear hit me. What the hell was going on? Why was Vinny sitting this one out? Mayonnaise, WhiteCoat. Mayonnaise.

Louise asked me very briefly about my training and then dove headfirst into the issues in the case. I was ticked that she didn’t give me the chance to talk about all of my publications and my teaching duties. I thought that those duties might make the jurors respect me a little bit more. Thinking about being mad while trying to answer her questions wasn’t doing me any good, so I let it go.

We went through the case and I explained things to the jury. It seemed as if the jurors were quite interested in what I had to say, which is a good thing. Then I made one of those slip-ups I was worried about. I said that there was a “delay” in obtaining the results of some tests. I didn’t mean it in a bad sense, but I saw the hospital attorney’s head snap around to glare at me, and I immediately understood what he was upset about. So I attempted to clear up the discrepancy by stating that it was probably perceived as a delay even though things were being accomplished in a timely manner. I gave an example of how everyone is used to seeing a patient on the TV show “ER” get wheeled in by ambulance, have a doctor look at them and bark some orders, then go to commercial. By the time the commercial is finished, all the labs are back and the patient is admitted. “Things just don’t happen that quickly in real life,” I said. Several jurors laughed at that one.

It made me feel better that the jurors were listening as I explained my side of the case. When I was talking to them, every one of them was looking at me and many of them were nodding their heads as I explained things. Definitely a good feeling.

After Louise and the hospital attorney finished their questions, we took a lunch break. I walked over to Louise and asked her if she planned on letting me tell the jury about my teaching duties and my publications. She didn’t even look at me. She had her head in her notes underlining things and just waved her hand at me in a “talk to the hand” position. I can’t tell if she’s nervous or she’s trying to piss me off. She’s succeeding at both.

I ate lunch alone and I wasn’t in a very good mood. Vinny was supposed to be doing this trial. Why is Louise doing my examination and screwing things up? She’s being a spaz. I have to stop trying to be a lawyer. No questions. I have to trust them. Then I got a good omen. I was reading through the paper and I almost never read the horoscopes. So today I happened to read my horoscope to gain any prophetic bits of information. Here’s what my horoscope said:

LEO (July 23-Aug. 22): Others take you seriously and see you in a new light, with deeper love and more re­spect. You’re able to speak with au­thority, yet are not afraid to ask for as­sistance when necessary. Your sense of duty and responsibility prevails.

Holy crap. I might just call Miss Cleo to ask her what the end of the week looks like. Then I’d be afraid she’d give me bad news. I clipped that little horoscope and put it in my wallet.

After lunch, the Grinch got back up to ask me further questions. He appeared angry. He immediately started making snide remarks toward me. One of the first questions out of his mouth was whether I told the co-defendant physician that I screwed up the care of the patient. Vinny and Louise immediately objected. The judge stood up and said “Outside NOW.” When they came back, the Grinch no longer had that look of anger in his eye. I later learned that in the judge’s chambers, the Grinch was upset because he thought I was acting too scared and was playing to the emotions of the jury. Not sure how someone acts “too” scared, and not sure how asking me a BS question like that would change things, but whatever. He was desperate and I was winning.

“You thought that you could just ignore the patient when he was out of the emergency department getting tests done, didn’t you? He wasn’t your responsibility then, was he?”
That got me mad and I raised my voice at him. “Listen, sir, I would go out of my way to help any patient anywhere they needed help. It doesn’t make a bit of difference where the patient is located.”

A little later in the questioning, the Grinch started making a big deal out of the fact that my note did not contain “diagnoses” but that it only contained “symptoms” such as abdominal pain. I told him that “abdominal pain” was an appropriate diagnosis because I wasn’t sure what was causing the symptoms. He tried to infer that I was required to write down diagnoses, not symptoms.
“That’s not the way that medicine is practiced,” I calmly told him.
“No, that’s not the way YOU practice medicine.”
“Nooo, that’s not the way any physician practices medicine.”
Then he jeered “You just didn’t write the diagnoses down because you knew that you missed the diagnosis and you were trying to hide it, weren’t you?”
The judge yelled at him … again.
I rolled my eyes, shook my head, and looked at the jurors. One of the jurors actually sighed out loud. Several rolled their eyes and smiled back at me.

It was pretty empowering seeing that the jury seemed to be on my side. I felt confident. Everyone in the room could tell that the Grinch was flailing. He initially told the judge that he planned to ask me questions for at least two hours. I think he asked me questions for less than 45 minutes.

One of the things that I did note when I was testifying was that for the first time the plaintiff was actually looking somewhere else besides the wall across the room from her. She was watching me — intently. She still had her stone face, but a couple of times I saw her wipe away tears. My story differed from hers and I knew that each of us believed the other was not telling the truth. Deep inside I still felt sorry for what had happened to her. I could tell that she blamed me for everything. She never looked away when I watched her. I just got that same blank stare.

After I finished my testimony, our emergency medicine expert was called. Vinny was having him explain several of the terms that I just had finished explaining and many of the jurors started rolling their eyes again. Nobody was writing things on their notepads. A couple of them flipped through their notepads while our expert was talking – probably comparing what I said to what he said. Hopefully that is a good sign. Vinny seemed to catch on to the vibes from the jury fairly quickly and he significantly shortened the expert’s testimony. The direct examination only lasted about thirty minutes.

During the cross, the first thing the Grinch did was pull out the ambulance run sheet and start in on the bleeding from the patient’s stomach again. Of course, the Grinch didn’t mention anything to me about it when I was on the stand. When he was waving the ambulance report around, it made me mad. I felt like standing up and saying “if it’s such a big deal, why didn’t you ask ME about it an hour ago?” That’s the way the game is played. Not going to let it get to me. He’s the one losing.

Just shows me how each side only presents things favorable to its position and avoids contrary explanations.

Vinny was right. It’s all a show.

Wanted to relax for the weekend, but didn’t really have the opportunity.

After trial got out on Friday, I took the train home, got in a 30 minute nap, then went to work a 12 hour shift on Friday night. I got home at 11:30 the following morning and took a nap until about three in the afternoon. Did some work that was piling up and spent a little time with the family. Went to sleep about 10:00 PM and was back up at 6:30 AM to do a 24 hour shift in the rural ED where I moonlight. After my shift, there was a meeting with hospital administration. That got over with about 10:30 in the morning. I got home at a little before noon. Looked in the mirror. The dark circles under my eyes talked to me. “Go to sleep” they said. “A little nap won’t hurt anything.” I took a quick shower, changed into a suit, and drove into the city. Arrived at 1:15 PM — about fifteen minutes before the afternoon session of the trial was supposed to start.

An infectious disease expert had testified during the morning. When I arrived, I discovered that the Grinch had suddenly changed his strategy. Previously, he wasn’t going to call me as a witness. Now, the Grinch told my attorneys that he was going to put me on the stand that afternoon. According to Vinny, the Grinch’s case was going so poorly that he was taking a chance putting me up on the stand hoping that I would say or do something that hurt us. “Remember, this is our case to lose,” he said.

Both sides were worried about the hospital’s expert surgeon. He had a reputation as a “wild man” and refused to be prepped for his testimony. The hospital attorneys attempted to go over what he would say and he wanted no part of it. Told them he was going to get up on the stand, tell his story, and leave. All the defense attorneys were afraid that he would ramble on about something and would blurt out something to hurt our case. Several people said he needed to be “reigned in.”

Wonder what they say about me.

As the hospital attorney led the surgeon through direct testimony, he came across as a very good witness. He noted that the patient’s diagnosis was a difficult diagnosis to make because it was “hidden from the examining eye.” He was very complimentary of my care, stating that I “responded to multiple life-threatening conditions that could have taken the patient’s life in minutes.”

When asked if the standard of care required me to contact a surgeon while the patient was in the emergency department, he replied “absolutely not.” He stated that if the patient had been brought to surgery when the plaintiffs were alleging I should have known the diagnosis, he would have died in surgery because his “heart wouldn’t tolerate it.” The patient had to be stabilized and I did a commendable job of doing so.

On cross exam, the plaintiff’s attorney brought out the fact that this expert never actually examined the patient and never took his history. His argument was that the family was in a far better position than the expert was to describe how the patient looked and whether I should have diagnosed his condition earlier.
The Grinch made a big deal about this theory, stating that the expert had “no direct observational evidence of the patient’s appearance.”
The expert replied “I have no idea what you mean by that.”
The Grinch scowled at him, turned to face the jury and sneered “yes you do” out of the corner of his mouth.
The expert stopped, pulled his glasses down over his nose, raised his eyebrows, and stared for several seconds at the Grinch. The Grinch turned around to look at him and you could see that the Grinch got a little uneasy. Several of the jurors rolled their eyes and shook their heads. Definitely didn’t gain any points with that remark.
The Grinch also noted that this expert did not look at the patient’s previous medical records.
“You didn’t even take the time to look at the patient’s prior hospitalization records or the records from the physician’s office visit, did you?” The expert simply said “I didn’t need them to form my opinion about the care he received in the hospital that day.”

The cross-examination ended with the expert stating that by the time the patient had arrived in the emergency department “the horse was out of the barn” and the patient was probably going to die from his illness.

During the expert’s testimony, one thing that I noticed was that the more the Grinch tried to get the expert to say bad things about me, the more the expert began advocating on my behalf. The Grinch was trying to make me look bad through the hospital’s expert and the expert would have no part of it. You could see that the Grinch was starting to get stressed out, too. During breaks, the Grinch would pace up and down the courtroom and run his hands through his hair. Periodically, he’d stop and write something down on a legal pad. Then he’d go back to pacing.

The other physician being sued in this case couldn’t stand the sight of the Grinch. He told me several times that he just wanted to go up and strangle him. I kept telling the doc to stay calm. Things seemed to be going our way. The ultimate payback would be if the Grinch lost this case.

On redirect exam of the surgical expert, the other doc’s defense attorney asked if it was reasonable to say that a resident should not have full knowledge of all subjects in his training because a resident’s knowledge is expected to grow during the residency. The judge flipped out. He stood up and said “Outside, OUTside, OUT-SIDE!” I don’t know what the big deal was. Several of the jurors even sat there with wide eyes and mouths agape at the judge’s outburst.

After the lawyers came back from their meeting, I asked Vinny what the problem was. He looked me in the eyes and said “Look … this is a show. You leave real medicine at the door when you walk in this courtroom.” That whole concept just rubbed me the wrong way. Besides, he still didn’t tell me what the problem was other than to say that the judge did not like the other doc’s attorney at all.

During the expert’s questioning, I noticed some of the tricks that the attorneys played on the witnesses.  One was repeatedly asking a bunch of easy “yes or no” type questions such as
“Would you agree that hypotension can be a sign of sepsis?”
“Wouldn’t you agree that antibiotics are generally needed to treat sepsis?”
“Someone in sepsis doesn’t necessarily have to have a fever, do they?”
“Isn’t it true that at some point the patient’s condition needed to have surgical intervention?”
The witnesses would get lulled into a sense of complacency by agreeing with all these easy questions. Once the witnesses’ guard was down, then the attorney would slip in a tricky statement that the witness would not agree to, hoping the witness wouldn’t catch it and would just say “yes” again.
“Then wouldn’t you agree that Dr. WhiteCoat should have called the surgeon as soon as the patient arrived in the emergency department?”
If the physician does catch the trick and says “no,” then the attorney just nonchalantly continues along with other questions and tries to slip the concept in under a different context later. If the physician doesn’t catch the trick, then the attorney either jumps all over the statement or saves it to use later.

Both sides did this. In fact, Vinny was kind of happy about it when he was able to get the opposing experts to admit things that they had denied in their depositions. He kept a little notebook with some of these admissions and made red marks with the word “closing” next to the statements he planned to use in his closing argument.

One of the other tricks that the attorneys use to try to establish the standard of care in the mind of the jury was to repeatedly ask if it was “reasonable” to do certain things. For example,
“Would it be reasonable to get a surgical consult in this patient early in the course of his emergency department visit” or
“Would it be reasonable for a surgeon to see the patient first and then order the tests that the surgeon wanted?”
Naturally, everybody wants to sound “reasonable” so they tend to agree with the questions.
The trick is that the attorneys then infer that because these actions were not done, the defendant physician acted unreasonably.
According to Vinny the response to a question of whether or not it would be reasonable to perform some action is “Yes, it would be reasonable to do so, but it is certainly not required by the standard of care.”

The Grinch really wanted to start my testimony that afternoon and you could tell that he was trying to rush through the rest of his re-cross exam. Louise said that was because the surgeon was killing him on cross-exam and the Grinch didn’t want the jurors to go home with the testimony ending on such a bad note. Alas, by the time testimony was finished, the judge said that it was too late to start new testimony and dismissed everyone for the day.

We needed to go back to Vinny’s office for a little while just to brush up on my deposition and the types of questions I would likely be asked. During the walk, I told Vinny and Louise that it was probably better that my testimony didn’t go off that afternoon since I only had about an hour of sleep in the previous 36 hours. Louise stopped walking, put her hands on her hips, and gave me this “what the hell is wrong with you” look. Then she sarcastically said “Well, I guess it’s a good thing you’re just telling me about this noooowww.” She ended the word “now” with a little “wuh” sound at the end to emphasize her point.

I don’t know which was bothering me more at the moment, the fact that I looked like I was wearing goth makeup the whole afternoon and no one noticed, or the fact that I felt like taking the chewed up pen out of Louise’s pocket and sticking it where the sun probably didn’t shine.

I am so bringing some salt to court tomorrow to dip the end of her pen in it.

Next up was the plaintiff’s emergency medicine expert.

The plaintiff had to change his emergency medicine expert at the last minute. Apparently there was some issue with the original expert having a medical problem where he was hospitalized and unable to testify. Instead, the plaintiff’s retained a young assistant director at a prominent residency training program. This expert hadn’t even finished his training when I had taken care of the patient.

When the expert got up onto the stand, it was obvious that he was nervous. He stuttered when he spoke and he used mostly medical terms, making him difficult to understand. He also had an annoying habit of clicking his tongue when he spoke.

During direct examination, the Grinch kept trying to put words in his mouth. Vinny objected to the Grinch’s questions, stating that he was leading the witness. After the third objection for the same issue, the judge ordered everyone back to his chambers to duke it out.

Once all the lawyers had filed out of the courtroom, I looked over to the jury box. Several of the jurors were watching me – kind of like they were sizing me up. Four of them were looking at me at the same time. I followed Vinny’s advice and just sat there, nodded, and smiled at them.

I started to daydream and glanced over at the plaintiff. She had assumed her usual pose of staring at the other wall with her arms folded. I wondered if she hated me. It upset me a little. On one hand, I wanted to tell her that I didn’t do anything wrong and apologize to her for the loss of her husband. On the other hand, I wanted to sue her pants off for filing this lawsuit against me. The dynamic tension between these two feelings kept me sitting in the seat taking notes and looking introspective.

Everyone returned from the judge’s chambers and examination of the emergency medicine expert continued. He was disorganized, he spoke very softly and he was difficult to understand. The Grinch finished up his questioning of the expert fairly quickly.

Then Vinny stood up and buttoned his jacket.

Vinny quickly established that the expert was unfamiliar with the chart. In fact, the expert admitted that he had not even seen the paramedic’s note that seemed to be one of the lynchpins of the plaintiff’s case. He accurately described the signs and symptoms that someone presenting with the patient’s disease process would have. He admitted that the diagnosis was elusive and stated that a surgical consult was necessary once the diagnosis was established. He also stated that he had only seen one patient with the same disease in his whole career.

Vinny got him to agree that pretty much all of my care was appropriate and my attempts to stabilize the patient were also appropriate. Vinny would ask him if it was appropriate for me to do one thing, the expert would agree. Then he would ask the expert if it was appropriate for me to do something else. The expert would agree. The expert didn’t dispute more than 10 of Vinny’s similarly leading questions.

When Vinny asked him whether I had met the standard of care, the expert replied that “a surgical consult should have been obtained.” Then he corrected himself and said “when the diagnosis is entertained, a surgical consult should be obtained.” He agreed that the patient had an unusual presentation of the disease, but said that when the tests all came back negative I should have consulted the surgeon. He stated that all of my management of the patient up to that point was within the standard of care. There was only a delay of about 20 minutes between the time that all of the tests came back and the time I contacted all of the consultants … including a surgeon. The expert never really came out and said that I violated the standard of care.

Finally, Vinny got the expert to contradict the previous expert by stating that the patient had signs of sepsis before he even came to the emergency department. In fact, this expert stated that the patient had signs of sepsis for more than a day before he got the hospital. He admitted that the patient’s prognosis was poor before I ever saw him.

“That’s all I have, your honor,” Vinny stated confidently.

Vinny walked back to the desk and whispered back and forth with the hospital attorney for a few seconds. Vinny had a stern look on his face when he was whispering. The hospital attorney decided to forgo questioning of the expert.

Later, Vinny would chuckle about the expert’s testimony, stating that he helped us as much as our own experts did. “Hell, we should have retained him for our case,” he quipped. “I could have gotten him to confess to JFK’s murder while I was at it.”

On redirect examination, the Grinch got the expert to reiterate that the patient had multiple signs and symptoms consistent with sepsis when he arrived in the emergency department and that I should have picked up on it immediately. He also got the expert to reiterate that the standard of care required a surgical consult to be called when the patient’s diagnosis was “entertained.” Even though we had already blasted the whole CT report theory, the Grinch got the expert to agree that if I knew about the diagnosis when the report was dictated, I should have called the surgical consult earlier and that an earlier surgical consult could have been the difference between the patient’s survival and death.

“No further questions.” The Grinch stated.

The judge called a 10 minute break and excused the jury to the break room.

That reminds me …. every time the jury is excused, everyone in the courtroom is supposed to stand up. When you stand up and wait for everyone to leave, where are you supposed to put your hands? If you put your hands in front of you and fold them, it looks like you’re playing with yourself. If you put your hands in your pocket, it looks like you’re trying to hide the fact that you’re playing with yourself. If you put your hands behind you, it looks like you’re under arrest. If you put your hands on the table in front of you, then you look like Beethoven playing the piano or like you’re going to fall over. If you leave your hands at your sides, it looks like you’re standing at attention. I opted for the overt playing with yourself look. And dammit I keep forgetting to stand up when the jury leaves. Louise seems to take great joy in quickly standing up and then kicking my chair while I’m writing things.

As the expert walked out of the courtroom, I followed him out into the hallway. I called his name, and he kept walking. I called his name again and ran up behind him, asking him to hold on for a minute. Before I said anything, he turned around and was visibly shaking.

“Look, I’m really sorry…”

I cut him off.

“Listen to me. For the past two days I’ve sat there and watched the family and the other expert tell lies and half truths about me and about the care that I provided. You sat up there and you told the truth. You don’t have anything to be sorry about. I just wanted to thank you for being honest.”

“No hard feelings.” I held out my hand. “Really … no hard feelings.”

He briefly shook my hand, but still wouldn’t look me in the eye. Then he turned around and walked briskly down the hall.

As I watched him go, I wondered how he’d describe his experience to his family and to the residents he was training.

Probably not at all.

Even truthful testimony against another doctor isn’t something that many doctors are proud of.

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See previous posts in this series here.