When Vinny started his cross-exam, things changed considerably.

First, Vinny got the expert to admit that most of the actions I took were appropriate. Then Vinny got him to admit that he based his opinions on his assumption that the results from the tests came back less than 20 minutes after the patient arrived in the hospital. That was the time they were drawn. The labs weren’t reported until 90 minutes later.
“Now that you have the correct information, wouldn’t that change your opinion?” Vinny asked.
“No, not really,” the expert calmly replied.

As the expert’s armor began to develop chinks, the tone of his voice became more condescending. When Vinny would ask questions that made the expert look bad, the expert would give a blank stare and say very calmly “Gee … you’re right.” The plaintiffs wanted to make it look like the patient’s condition worsened because of my delay in diagnosis. Vinny brought up the fact that several other experts felt that the patient was in serious condition when he arrived at the hospital. This guy disagreed, flatly stating “the other experts are wrong.”

When the patient arrived at the hospital that day, his vital signs were blood pressure 80/50, pulse 116, and respirations 40. The expert said the patient was “definitely not in shock.” He just contradicted the definition of shock he gave an hour ago. What a liar.

During the testimony, the expert was going off the deep end with his statements about shock. Most of the people in the courtroom knew he was blowing smoke. Louise was writing on her pad for a while. As the expert’s statements made less and less sense, she began making body contortions, shaking her head, and rolling her eyes. At one point she leaned back in the chair, flopped her head and arms back, and looked like she passed out. I could see some of the jurors looking over at her. Now I see why the attorneys didn’t want me doing these things. She looked ridiculous.

Then Louise found something in the expert’s deposition that completely contradicted something he had just testified about. That was it. She whipped out her thoroughly chewed up pen, opened up the deposition and started scribbling a box around the statement on the page. The only problem was that this was no ordinary box. She must have gone back and forth over each side of the box about 50 times. At one point there was silence in the courtroom and all you could hear was the sound of her pen going back and forth over paper like a saw. I guess she didn’t want Vinny to miss the first TEN boxes she drew around the statement.

So I elbowed her and whispered “What happened to the poker face?” It was like a scene from a B-rated horror flick. She stopped and she was doing and turned her head to look at me. Her hair was flopped in her face and her head was tilted down so she was scowling at me through her eyebrows. She didn’t say a word. If her pen was a knife, I’d be dead. I could just picture her holding the pen in the air and saying “Redrum“. Of course, if that happened, I would have ran out of the courthouse and taken refuge in the nearest church. After about 5 seconds of zombie staring, she went back to her happy place scribbling the sides of a fortress around the expert’s statement. I snickered … but softly enough that she couldn’t hear me.

The plaintiff’s expert kept saying that I was aware of the patient’s condition within an hour after he arrived in the emergency department based on the radiology report. I showed Louise that the printout on the report said was not transcribed until the day after the patient was admitted to the hospital. She called Vinny over to the table, showed him the report, and then showed him the beautiful black box she had drawn over the entire page of the expert’s deposition. Vinny paused and nodded. You could see the wheels turning in his head figuring out how to bring up the issues.

Vinny asked the expert a couple of more little questions and then casually asked the expert how I could be negligent since I did not receive the radiologist’s report until the following day.

It was like someone jolted both of the plaintiff’s attorneys with cattle prods. They stood up, waved their hands in the air and pounded their fists on the desk, yelling “Objection! There is NO evidence of that!”

Vinny started getting excited. His voice started to crack.
“No evidence? No evidence, you say? Put up page 71.”
The CT scan report was displayed on a big projection screen in front of the jury.
“See where it says ‘transcribed’? See how it’s dated the next day? Is that enough evidence for you? How’s that for evidence?”
The judge made everyone calm down.
Vinny apologized, stating that he had one too many cups of coffee that morning. “Sorry, your honor, I’m just getting a little excited.”
The judge said “Yeah, we can tell.” Everyone laughed.
The plaintiff’s attorneys just sat back down at their desk and put back on their poker faces, writing on their pads of paper. I was quite amused.
Vinny was smart enough to end the cross-examination on that note.
As he walked back to the desk, he had a silly grin on his face — like a little kid who just punched a bully square in the nose.

The hospital attorney’s cross-examination went OK. He got the expert to admit that the patient had a risk of dying the day before he arrived in the emergency department and any chance of survival had significantly diminished even before he came to the emergency department. According to the expert’s prior definition, the patient was septic before he ever arrived in emergency department.

The hospital attorney also questioned the expert extensively about his experience in the emergency department. He stated that he had not practiced medicine in emergency department in over 30 years. He did say that he was “in the emergency room every day of my life.” He also stated that he taught the diagnosis and management of the patient’s medical problem to future emergency room physicians at his hospital. “The diagnosis and treatment of the problem is always the same no matter what specialty is treating the symptoms.”

As questioning wound down, the expert kept adding what appeared to be “canned quotes” to his answers. They didn’t even apply to what he was being asked, but he kept throwing them in there anyway.
“There was a delay in diagnosis. Things like this move rapidly. Delay is the enemy.”
“If the patient was in septic shock, the need for a surgical consult would be “magnified.”
“Without immediate surgical intervention, the patient was slipping away, losing any chance to be rescued.”
He was fairly convincing when he said those things. I wondered how many times he had used those trite little quotes before.

After the expert had completed his testimony, there was a short break. He came up to Vinny, shook his hand, and said “everything I’ve heard about you is true.” Then he shuffled out of the courtroom $5000 richer.

As the hallway door closed behind the expert, Vinny muttered “what an a-hole.”

See previous posts in this series here.

New day, new witness.

Now it was time for the experts.

The “star witness” for the plaintiff ended up being a rotund old surgeon with spectacles and long hair who looked like Santa Claus without the beard. According to his witness disclosures, he was going to blast everyone’s care.

We were waiting for things to start and everything was quiet when he walked in the door. As he passed through the doorway, he tripped over his shoes. Then he sat down in the back of the courtroom and shuffled papers around. Vinny leaned over to me and said “If you think the attorney was bad in the opening statement, wait for this guy.” Not what I needed to hear.

The plaintiff attorney started out with direct examination which is basically a bunch of easy open-ended questions. He started with the doctor’s qualifications. This expert was 71 years old. He was licensed in three states. He was board certified only in general surgery which he “allowed him to specialize in the diagnosis and management of certain conditions of the body.” He stated that general surgery was a “broad field.” He was an associate clinical professor at a medical school, which essentially meant that he was on staff there. He charged $5,000 per day plus expenses for court testimony. He charged $500 per hour to review and analyze charts. He charged $350 per hour for depositions. He has testified in more than 2000 cases and gave approximately 20 depositions in the past year.

He started right in on the patient’s medical problem. Pretty much everything I did to keep the patient alive was wrong.
“This condition needs surgery, nothing else. Until the patient gets surgery, he will not get better. If the patient does not get surgery, he will die. In this disease, minutes and hours make a difference.”

Then he made up all of these criteria for the diagnosis of sepsis. The patient’s temperature could be low or high, the patient could have a heart rate greater than 90, the patient could have a respiratory rate greater than 20, bicarbonate level < 28, a white blood cell count < 4000 or > 12,000, or greater than 10% bands on the differential. If any two of these criteria exist, a patient is “septic by definition.” Let me get this straight. If I go out jogging, my heart rate goes higher than 90 and my respirations go greater than 20, then I need IV antibiotics? Get a clue.

During the expert’s testimony, I just kept staring at him. It seemed to be rattling him a little bit because he would say something that wasn’t quite true, then look over at me, then get flustered and look away quickly. I must have stared at him for good 20 minutes.

He then began reading medical records given to him by the Grinch. Problem was, the Grinch never gave anyone else copies of the medical records. The records were from several previous treating physicians and had little to do with the care we provided to him. We got them the morning of the expert’s testimony. The judge excluded those records from being shown to the jury, but then the expert just read the contents of the records to the jury. It was just like handing them the records anyway. That upset me. I wrote on my legal pad “Can he read it into the record if it has been excluded?” Then I pushed the note in front of Louise. She dropped her shoulders, cocked her head to the side and gave me one of those cold stares that apparently meant “Yes, and stop playing lawyer, dammit.”
Maybe I’ll get a mirror to flash her stare back at her or something. See if she can turn herself into stone.

They made a big issue of the requisition form for the patient’s CT scan. A radiologist’s report contains a brief history about why the testing is being performed in addition to the interpretation of the images. The report from the radiologist was dictated an hour after the patient arrived in the emergency department. It stated “pertinent history” and then listed the patient’s diagnosis. This led the plaintiff’s attorneys and the expert to believe that I knew what the patient’s diagnosis was an hour after he arrived in the emergency department. I didn’t.

The radiologist that read the film had a habit of going to the surgeons the following day and asking them what they had found. He would open up a blank report so that it looked as if it was dictated at the time of the exam, but would then hold the reports as “preliminary” and finalize them after dictating in the results of the surgeries. That way it looked like he had picked up on all these small findings before anyone else knew about them. He was a decent radiologist, so no one seemed to mind that he was adding all these findings after the fact. Now it burned me. The information on the radiology report was something we hadn’t noted when preparing for trial. Now we had to figure a way to explain away the radiologist’s antics without sounding like we were trying to make him a scapegoat.

The expert ended up his direct examination by saying that all the patient’s vital signs at that time were “abnormal” and “indicative of sepsis.” I failed to contact surgery in a timely manner, I failed to appreciate the patient’s history, and I failed to even appreciate the signs and symptoms of sepsis. Basically, I was a poor excuse for a doctor and caused the patient to die.

As far as the expert was concerned, the patient would have survived had I contacted a surgeon sooner. After he got to the ICU, he went into multiple organ failure and died as a result.

“The negligence of the hospital and of Dr. WhiteCoat caused this patient’s death.”

Damn it is hard to sit there and listen to someone say things like that without jumping up to defend yourself.

But Vinny was getting primed. Now it was his turn to ask the questions.

This should be good.

See previous posts in this series here.

The plaintiff’s daughter then got up on the stand. She was sneaky.
Apparently from the time her father came to the emergency department, she had been taking notes about everything that had happened. So she had many pages of notes that she used to describe the hospitalization of her dad. According to Vinny, she and the Grinch didn’t make those notes available to everyone else until much later in the litigation. She described much of the same things that her mother described, but she was much more vivid in her descriptions of his condition.
She described the presence of blood on her father’s abdomen. She even described black marks on his skin where the blood was coming from. None of these findings were anywhere in the notes she had taken. She said that her father came into the emergency department a “normal man” and left the emergency department “completely ravaged.”
She stated that she was there for my whole history and that I never asked him about several things, including whether or not he was taking a blood thinner or how he had managed the symptoms of his medical problem. She said that my history lasted about 10 to 15 minutes and admitted that I performed a complete physical after taking the history.
She also stated that she was present when the resident physician arrived. She quoted several things that he told her, including his alleged statement that there were “no risks” with the condition that had been diagnosed.
“What a bunch of bullshit,” the doctor whispered in my ear, “I would never tell someone that.” His voice stuttered for a second as his attorney kicked his chair to tell him to shut up.
As she watched her father being wheeled from the emergency department, “he was a different man.” His skin was ashen gray. His abdomen was distended and he was unable to talk. He looked “horrific.” She started to cry, but it didn’t have the same effect as her mother’s tears.
“By that time I knew it was too late to save my father.”
Her father was taken to the intensive care unit and the surgeons discussed the pros and cons of surgery with the family. Any procedure would likely only be palliative and he was at a high risk for surgery, anyway. Instead of increasing his pain and suffering, the family decided to let him die in peace. Again, she began crying, but her tears just didn’t seem real.

The plaintiff’s daughter folded under cross examination. Vinny showed her the notes she had taken about the emergency department visit.
“Your notes don’t say anything about blood on your father’s abdomen or black marks on his skin, do they?”
“Of course not. I just used the notes to describe the care my dad received and how my dad felt. I didn’t care as much about his appearance at the time.”
“Well your memory is pretty vivid about your father looking ‘horrific’ but you didn’t think enough of his appearance to write a single word about it in your notes?”
She didn’t have an answer for that one. After hesitating a little, she just said “No.”
“You know Coumadin causes bleeding?”
“Yes.”
“And you were there when Dr. WhiteCoat did the history?”
“Yes”
“Well if you were so concerned that Dr. WhiteCoat didn’t ask your dad whether he was taking blood thinners, why didn’t you mention your father’s blood thinner use to Dr. WhiteCoat?”
“I’m not a doctor. I didn’t know it would be important.”
“You say that your father was bleeding and you didn’t think that blood thinner use would be something important to tell the doctor — assuming the doctor really didn’t ask about it.”
“He didn’t ask about it and I’m not a doctor.”
That line was getting old.
Vinny also got her to admit that she did not remember any of the testing that took place, any medications he was given, the specifics of my physical exam, or the timing of when he seemed to get so much worse.
“If you couldn’t tell when your dad got so much worse, how do you expect Dr. WhiteCoat to do so?”
“He’s a doctor, I’m not.”
Could have called that answer 10 minutes ago.

The plaintiff’s son then took the stand. He looked rather odd. He was dressed in a police uniform. Initially he was very cold and appeared aloof. Then all of a sudden he began crying out of nowhere. A couple of the jurors made strange faces and looked at each other when that happened. His testimony didn’t add much to the evidence that was already there. His testimony came across as pretty unconvincing to me. Then again, I was a biased observer.

When Vinny got done doing his cross examination, he seemed happy. He walked back to the table, winked at me, and said “this is our case to lose.”
That’s kind of a good feeling.

Trial ended for the day and I tried making small talk with the hospital representative.
Since the hospital is on trial, it has one of its employees as a representative. She obviously hadn’t gotten the same pep talk that I received. She was in her early 40′s, wore a very expensive suit, and had on all kinds of gaudy rings. A Starbucks cup sat on the table in front of her the entire day. She wasn’t paying much attention to the trial, either. Instead, she had finished about half of a Stephen King novel during the testimony. Her rings would periodically clink back and forth as she turned the pages of the novel.
Every time the hospital defense attorney spoke, he would state “My name is Louie and I represent County East Hospital. Ms. Hilton is here on behalf of the hospital as a hospital representative.”
I asked her whether some of the more well known physicians at the hospital still worked there, but she didn’t seem to know much about the hospital or the doctors. Said she didn’t go there much. Some representative.

I casually mentioned the representative to Louise as we were walking together to the train. She made a crack about the hospital representative’s rings, too. Apparently the hospital’s law firm hires  representatives to sit there at trial. Representatives don’t work at the hospital and this one has only been to the hospital a couple of times as a patient. She knows nothing about the place. She sits at trial after trial representing hospitals and other businesses. Instead of the business owners or hospital administrators taking time off from work, she sits there instead to “personalize” the businesses to the jury so they don’t look like some faceless institution.

Nice.