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.
Yes, the “blank face”. I’ve always wondered how people can develop it to such an extent that it covers all error, even evil. As for the woman advocate, the Lord only knows why you, Whitecoat, didn’t toss her days earlier.
You are a better man than I WC. I can’t even tolerate the suffering of the wanna-be lawyer Matt in the virtual world. I have no idea how you keep quiet during the expert testilying. And the fact that it is a surgeon who knows NOTHING of a modern EM practice? I’d lose it.
Fry I bet you and that expert would get along well. It sounds like you have similar personality traits.
WC were you watching the jury much during this exchange? What was their reaction?
Oh..I like Matt’s question. What was the jury doing?
“It was like someone jolted both of the plaintiff’s attorneys with cattle prods.”
Isn’t that (when someone falls into their own trap and it’s GOTCHYA!)just the best type of courtroom moment ever?? (I still savor the memory… 16 yrs later!:)
I can’t help but to make the comparison, but as this progresses..this case is akin to me suing the ED who tried to help my mother when she obviously already came into their facility from the nursing home in a seriously compromised life threatening state. (I know it was apparent to them it was too late)
“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.”
It took me about 10 minutes of rereading this before I could get past this and then got stuck on the canned phrases… also true..when they are true.
*sigh*
I imagine that anyone reading this that has ever been involved in an unfair legal case or or lost a loved one they believe may have been neglected in some way is identifying greatly with these posts.
I came right over to the computer when I woke up and when I got in here and saw #15 was up..I immediately proceeded to making coffee and then came back with said coffee to savor your post…along with God’s manna from heaven…coffee.
I would really like to know what the catalyst was for her suing you/ Grief? Money? Someone else prodding her? All of the above? Did she know she was wrong? is that why she never looked at you? Or was that only because of how she was counseled to behave or both?
I know this…I would’ve been on a mission to make eye contact with her. No matter how much she avoided…I’d want her to see my eyes questioning her eyes. No harsh looks. No accusatory eye messages… no evil eye staring her down… but a sincere “Why? Didn’t you see I really tried to HELP your father?” and I’d be trying like heck to read her eyes.I am an eye contact person, so it would make me crazy if I couldn’t look into the eyes of the person wrongfully accusing me.
So…when is #16 going up????
Seaspray, I’ve worked in the legal field (medical malpractice, both sides of the fence) for a long time, and I think the reason people want to sue is RESPONSIBILITY (and money). No, seriously, people want SOMEONE to be responsible for their loved one’s death/illness. It simply cannot be that their loved one fell ill and died – with all our medical knowledge today, they could have, should have, been saved, and it has to be someone’s fault that they weren’t. Now of course, we all know this isn’t true – sometimes good people become very ill and die, and no doctor/hospital in the world can save them. But people sue anyway, because they want to see accountability (and money – don’t forget the money).
Don’t discount the need to understand what happened. A lot of my client intakes come from patients who never got a straight answer — some got no answer at all! — about what happened to their loved one and how they died under the care of a physician or hospital.
I agree with both of you. Chris and Max.
I am not suing… but I can tell you it is *ripping me apart* to know there are what *appears* to be conflicting stories.
Nursing home staff vs ED staff – ED doc, ED nurse and hospitalist stating mom had multiple little openings in her skin and one small (I don’t know how small) original OOZING opening vs that very day.. the NH nurse telling me *cheerfully* “the opening was small with pink borders healing nicely and she was doing *fine and talking*” ( Same NH nurse called me in beginning of week to say..she had this and “we think we caught it..we DID catch it early and it should heal nicely”, they contacted her pcp for a hydrogel.”) But that Friday 3 or 4 days later.. 5 hours after I was told mom was fine..I got call from nh stating she had a GI bleed. She died a few hours after that in ED – sepsis, gi bleed, cardiac arrest. She would’ve died in her bed at NH but her advanced directives weren’t accessible and so paramedics intubated her. Her bp was so low. It was apparent she was on her way out… even with intubation..although I held out hope… the kind that even though your intellect tells you to let go…your heart fights losing your mother. You can have all the head knowledge in the universe… but until you walk that walk… you just can’t know how hard that decision is… even if holding on is selfish and wrong… you just can’t know.
It is bothering me.
I called the NH several times to speak with different individuals that had cared for mom over the next week. (I can’t imagine the administrator would have been happy if they knew.) I did develop a relationship with some of staff.
Mon or Tues (think Monday)they called to tell me about well controlled opening in skin.
They called me during last 6 mos if she had a med change, got a cut from a wheel chair or had an appointment.
*No one* called me that WED to tell me her coumadin level was “VERY HIGH” and they were wondering why she was so lethargic -per a stellar nurse, that she was refusing food by Thurs nite – aide specifically told me she KNEW something was wrong when she looked at her and Mom refused ice cream and she put her right to bed. *No one* called to tell me that she refused to eat all together all day Friday…per another aide -the BEST one..also stellar.
*No one* told me that her labs were so bad that Friday afternoon that the stellar nurse said she was surprised her pcp didn’t put her right in the hospital.. but instead wanted to know if she was bleeding and her bp and to watch her.
The nurse who cheerfully (she was a snippy nurse in reality.. but that day…so cheerful regarding mom)called to inform me that mom’s abdomen was distended and she was unable to void but that when mom was catheterized stated, “That’s a relief”, didn’t know why it happened. I asked what if it happens again..and she said they’d take mom to the urologist. (She never had any urology problems prior to that)This nurse always seemed annoyed if I asked questions during the 6 months Mom was there and I admittedly was a bit intimidated by her because it was difficult to differentiate… when something was a valid concern because of mom’s newly diagnosed dementia and was I bothering the staff. But I was also an advocate for mom. I brought obvious concerns to their attention and at times had to be insistent a dressing was put on, etc. And then they were good with her too.
*The worst thing about having a loved one in a nursing home…is wondering how they are being cared for when you are not there to see it.
I went to see mom 2 and 3 times a week except for 3 weeks out of that time period. the 1st 2 weeks I at least called and asked them to assist mom in taking the call.
But that last week..I told mom I wouldn’t be in mon thru wed, but then I wasn’t feeling great(mild nausea) felt drained and so didn’t go thursday either. I also never called. For the 1st time in a week I didn’t go..I never called. that is because it was a production and I was afraid to bother anyone. They hardly answer the phone at the nurses station… but if they did.. they then had to go down to mom’s room to pick up when I called and stay with her to assist her. That week..I just overrode my guilt feelings and didn’t call. That week she died.
I was going in that Friday afternoon… but when I asked Nurse Ratched how Mom was and she cheerfully stated…”Oh she’s fine and talking!” I then figured..okay..she’s alright now and so told the nurse I would definitely be in in the morning… but then as I previously stated… I got the call 5 hrs later she had a GI bleed.
The nurse did not tell me to stay home that day. i made that decision and now have to live with it.
But…DARN!… if *anyone*…*anyone at all* had told me anyone of those things they were concerned about… I WOULD HAVE been there in a NY minute! Maybe..the outcome would have been different…maybe not.
It was what it was.
Btw..Mom was 85, lived independently in her own apt until The fall and from point of rehab admission..her mental status declined greatly from what it was..even when first admitted, she lost all ability to walk, support herself and only thing she could do was apply makeup and eat.. and sometimes needed assistance. So her quality of life wasn’t there.
It was probably just her time.
But I am disturbed by the things I was told and not told and conflicting story of ED staff vs NH nurse Ratched. I am mad at her…I admit it. never told them..but I am and I am mad that *no one* called me for the last 3 days when these things were concerning them. I mean c’mon! I could care less about a med change or Dr appointment by comparison. And I am mad at me for not going or at least calling.
And then just as I thought I put it to rest… a few weeks ago…I got a call from a NH aide, no longer employed there… who took the BEST care of my mother. She was the ONLY person in the entire facility who read my request I had posted over Mom’s phone for someone to assist mom and call me so we could connect. I saw her with Mom and she was so good with her.
She actually called me from home 2 days after Mom died. I am guessing that was against NH protocol, but I appreciated her call and the things she said. Now I wonder if she wanted to tell me more but since still working there thought better of it?
When she called a few weeks ago, she told me some things that have me upset all over again. I actually wish I didn’t know now because it hurts and angers me even more… and again… I just don’t know what to do with these feelings and I guess… like anything difficult… you just learn to live with it. Try to see and remember the good things and move on.
I *strongly* identify with what Max said, “Don’t discount the need to understand what happened. A lot of my client intakes come from patients who never got a straight answer — some got no answer at all! — about what happened to their loved one and how they died”
I kept saying to the NH staff (after the fact and the ED staff… I don’t understand why this happened.? Why did this happen?”
I think if you understand… you can have better closure.
Max: You are saying, often, it is not about the money?
Come on. This isn’t kindergarten, and there is no Santa Claus. I should know, being his cousin.
What a waste of time and money.
FWIW, neither I nor anyone else at my firm uses experts like that. Even before the MCARE restrictions, if we couldn’t get a qualified and credible expert to support the case, then we rejected it.
Max,
what are MCARE restrictions? I’m not a doctor or a lawyer, so I have no idea what you are talking about.
I googled it and didn’t find anything that looked like it related to this.
thanks
MCARE is a Pennsylvania law that required that a certificate of merit be filed with the complaint. This served to totally immunize the plaintiff lawyer from a misuse of a civil procedure lawsuit. It is a 100% effective shield against any countersuit by the doctor. The lawyer can now say, I don’t know medicine. I filed this claim only after the expert cleared it. It cost me a whole $500 to get it.
Then the law requires that the plaintiff expert have the same Board certificate as the defendant. If the defendant is Board Certified in Emergency Medicine, this surgeon clown would not be allowed to testify. There is discretion permitted to the judge to allow non-qualified expert to testify, but it would certainly get raised as a serious error in any appeal.
This law dropped the number of medmal cases filed by about 25%, but not the fraction of cases that are weak. Only allowing a legal malpractice claim by the adverse third party will decrease this form of lawyer negligence. Weak cases are lawyer malpractice.
Doctors do not get angry at strong cases. They are angry at the injustice lawsuit lotto represented by the 4 weak cases filed for every strong case filed. And they are angry at the absolute shields against suing lawyers.
I received a ticket for running through a red light in Pennsylvania. The penalty was $25. But what else do I see on there?
A fee for the MCARE act, EMS services and the computerization of the courts of Pennsylvania. My $25 violation ended up costing $110. I was being punished for a traffic violation, but forced to pay for doctors’ malpractices, for EMS, and to get the judge a laptop. I demanded to know how much this highway robbery scheme is netting Pennsylvania. It’s $42 million a year.
I am shopping for a class action law firm. Max, how about getting interested in making serous money? I will contact you or a class action friend and will gladly serve as lead plaintiff if you express any interest. I want all my money back over the $25 fine.
That’s pretty good how he worked when the report was transcribed into the questioning.
BOO-YAH!!! Take that, ambo-chaser!
Then again, it’s a jury. If they could acquit OJ, anything is possible here.
I’m surprised you didn’t launch on the “expert” for calling it the “ER”.
True. Sucks it’s a jury of people. I wish we could use robots.
I wish we could use a jury of people capable of critical thought.
In other words people who agreed with you. You know just because people don’t agree with you on something it doesn’t mean they’re dumb, right?
No, you ass. I am saying that I wouldn’t want to be judged by a group of people similar to the ones who freed OJ. They weren’t terribly interested in fairness or justice.
Is it just me? Or is Matt just a generalized Ass? Does he actually get along with anyone? Or does he just take an opposite view on whatever is said? The sky is blue.. the earth is round buddy. Other people are entitled to an opinion.. even if you think it’s wrong.
@Painless … Matt is a trial lawyer.
@DaveyNC … There are professional referees. Why not professional jurors?
I gotta tell you, when I check the ol’ feed reader to see what’s there, everything else gets put on hold when there is a new update from you.
As I read this and then read AMA statements supporting current health care “reform” efforts I wonder if this will be the last time WC ever experiences this kind of review of his work.
could you elaborate on the following statement:
AMA statements supporting current health care “reform” efforts I wonder if this will be the last time WC ever experiences this kind of review of his work.
I’ve never read anything from the AMA, so I don’t know what your statement implies. Links would be great.
If you read the AMA’s recent press releases, you can see that rather than advocate for a wholesale change in healthcare toward a more transparent, more direct relationship between providers and patients, they are slowly getting on board with single payer healthcare. Physicians are fools for going along with this, but they do not seem terribly motivated to do anything about it, so I guess they see it as a good thing.
Once we have single payer, malpractice cases will largely dry up, except those with significant economic damages. This is for one of two reasons. First, one of the main reasons people file suit for malpractice, and a large driver of the size of the award, is the cost of past and future care. Someone severely injured who cannot work faces mountains of bills. If the cost of the physician’s negligence no longer lies with the patient or responsible party, but rather rests on all us taxpayer, and the victim has healthcare regardless of ability to pay, then the need to go through a trial is severely limited.
The other thing that may happen is no-fault. You get injured, regardless of negligence, while receiving care, you get your bills paid plus scheduled payments for pain and suffering, and some sort of lost economic award based on the level of your disability. Much like Workers Comp.
With those two things, there is no need to have a trial to determine negligence, and damages are fairly straightforward for the most part. There will still be cases for those who opt out of the government system, but the number of cases will be drastically reduced. And since WC is an ED physician, he’ll undoubtedly be in the system.
Now, let’s be clear – this saves no one money. The costs of care remain the same. It’s just that we all pay it rather than the person who caused the harm. Is it a good trade off for physicians? We’ll see, but I doubt it given that they don’t like the amount of govt. in healthcare now. It’s not going to go down.
Matt, you do realize that we all pay anyway, right? Torts like products liability and medical malpractice seek to distribute costs by putting them with the party best able to distribute them, i.e. the party charging for the service/good.
If single-payer health reform works the way you say, then the only difference in terms of cost distribution is that all taxpayers will pay instead of all future patients–increasing the amount of cost distribution, generally a good thing–and we will lose incidental and transactional costs, like the professional damage to physicians who are sued, and the legal costs of suing them.
Now, I imagine one can argue that this might still be a net negative, because the incentives provided by the tort system may increase the quality of care and thereby lessen costs even factoring in transaction costs et cetera, but I kind of doubt there’s any data available to back up such a claim.
Next please!!
Again, why are the defense lawyer not trying to knock out the expert by disqualifying him, or by impeaching him with his prior inconsistent statements?
They do not want the case to stop immediately. They want the full trial, risking the future of the doctor, and betraying his legal interest.
I cannot bear the wait for the next instalment.
I just want to say….last week was horrible. Today was great! And to top it off I got to read another fascinating installment of “Trial of a Whitecoat”…..You rock!
Thank You!!!!
Not sure what year this trial happened but did you consider reporting him to his professional society?
Both Neurosurgery and Orthopedic Surgery professional societies now have codes of conduct that include expert testimony with punishments that include censure and revocations of professional affiliations. Sounds like it would have been appropriate here.
There was a landmark case in Neurosurgery, but I don’t remember the names involved.
could you elaborate on this? “censure and revocation” for what? providing expert testimony? saying something as an expert that flies in the face of standard care? for being an expert for the prosecution?
as usual, the source would make it all very credible.
Adam … censure for “testilying.”
ohio seems to be making it easier to counter sue. i found this article after researching some of the posts made on here:
http://www.aans.org/library/Article.aspx?ArticleId=51080
not sure where i saw the post, but someone posted something (maybe washington post) about docs that did surgery drunk and all sorts of other crazy crap, and their professional board wouldn’t do squat. that doesn’t really help their case for changing how lawsuits are handled in medical malpractice.
Here is a review of the subject, including case citations. Not much recourse outside the trial.
http://www.thefreelibrary.com/Expert+witnesses+win+their+day+in+court+against+medical+groups-a0151664290
One should assume immunity for witness testimony under the First Amendment, and under a Supreme Court decision (LaHue v Briscoe, 1983).
Inside the trial is another story. However the defense lawyer will never willingly attack the plaintiff expert, on whose safety and comfort the defense attorney’s job totally depends. There is a strong conflict of interest on the part of the defense lawyer. Doctors should be pitiless, and try to destroy the defense lawyer who refuses to do his professional duty, which is solely to the defendant and not at all to the insurance company. The insurance company also goes out of business if the plaintiff side faces personal destruction and gets deterred.
There is recourse within the trial, with the trial judge.
1) One may disqualify the witness, ending the case. You may have to force the defense attorney to try that but only after you are holding his family for ransom. Even then, he will have do some thinking before giving up the billable hours of a trial.
2) One may impeach the witness.
http://caught.net/prose/advtt/hbcross.htm
3) One may try to find a false fact uttered by the expert. For example, lying about an experience. Or saying, he reviewed a document and has not. In that case, the judge may file perjury charges or find him in criminal contempt. The judge may call a mistrial, and assess all legal costs to the perjured witness.
4) Making the expert look foolish by drowning him in detail the local jury knows, but not the foreign expert. What is the name of the hospital, its address, etc. The jurors know it, the expert has to rummage if not endowed with a photographic memory.
I would like to see more attacks and personal destruction of the plaintiff expert by the defense attorney. The above are now innovative. They are standard knowledge, the defense lawyer refuses to use.
“Does he actually get along with anyone? Or does he just take an opposite view on whatever is said?”
As long as what is being said is that we should further tilt the playing field in favor of negligent physicians and liability carriers against injured patients, then yes, I take the opposite view. If that makes me an ass, so be it.
Or better, we tear down the old stadium and build a new one, eg Health Courts.
Founders didn’t have much use for allowing certain people to only decide amongst themselves if one of their own is negligent. Thank goodness.
“@Painless … Matt is a trial lawyer.”
If by “trial lawyer” you mean I make my living primarily from representing plaintiffs in personal injury cases, that would be incorrect. I have a small town practice with slightly more of that work than the average small town practice, maybe 35-40% of my caseload. The rest is business/real estate work.
I too can not wait until the next installment. WC I bet that when you posted blog about your trial that you did not expect all the conversation regarding it and other similar malpractice cases. I find it to be very interesting and riveting and I am anxiously awaiting the next installment.
Is Matt the only one here who does not agree with medical courts and doing away with lay juries?
I will agree with it only if all defendants get that privilege. For example, when docs sue health insurers I think that jury should be made up of health insurance execs. Only fair.