During my malpractice lawsuit, I kept notes on my computer and wrote notes on scraps of paper, telling myself some day that I would write a book about my experiences. As life goes on, priorities change and the notes just got put into a file for several years.

An article I read about another doctor who had difficulty coping with a malpractice trial finally motivated me to pull the notes out of storage and begin writing. My intent was to generate discussion about what doctors go through during a trial and I undoubtedly succeeded. When doctors are sued, many times they don’t know what to feel. My experiences are the way one doctor felt. Hopefully the story will give others the impetus to discuss their experiences. Through my eyes, hopefully everyone can see some of the major flaws in our system and the need for change. I realize that patients have their own view of what happens during malpractice proceedings and this story is not intended to diminish the ordeal that patients go through. Like I said when I started writing this series – malpractice trials aren’t about who wins, they’re about who loses least.

I’ve read comments and have been sent e-mails asking me about the case.

Is the story real or am I some John Grisham/Samuel Clemens reincarnate? Scary that I’m being mentioned in the same sentence with writers like that. The story is definitely real. My writing is what it is. I try to write like I talk to people. I appreciate it immensely that so many people enjoy it. I don’t think I’m creative enough to make up story lines out of thin air, although admittedly I’ve never tried. Maybe in all my future free time, I’ll give it a shot.

Why was I dragging out the posts? Was it a ploy to boost hits to the EP Monthly site? Sure I enjoyed the increase in readers. Daily hits to the site more than doubled since I started the series. That’s not why I posted so many parts to the story, though. The entire series ended up being over 30,000 words. Much of it I had to transcribe from written notes, which is no small task. Sometimes I felt like putting it off, but stayed motivated by everyone’s comments. I tried to do the story in 1000-2000 word chunks because those are easiest to read and because they were manageable in terms of transcription. Don’t forget, I still have two jobs and a family to spend time with.

What really happened to the patient? I doubt I’ll ever disclose the exact issues in the case. The facts about the patient and his or her condition were changed. The patient’s condition was uncommon enough that if I disclosed the condition, it is possible that someone adept at internet research would be able to figure out who the patient and his family were. If the story doesn’t fit together perfectly, that’s the reason.

The central elements in the malpractice case were not changed. The events happened several years ago, so I don’t have an independent recollection of everything that happened. I took notes, but there were some gaps, so I filled things in as best I could from my memory. One example of me filling in gaps was the time between leaving the court after the jury began deliberations and the time the verdict was read. Not sure whether I took notes and the paper was lost or if I just never took the notes. I remembered the talks we had, Louise pumping her fist at the table, and Vinny saying that it only took 45 minutes for some company to lose millions of dollars – I think he said AIG, but I couldn’t remember. I did some searching on the internet and still couldn’t find the answer, so I made it AIG.
Couldn’t remember everything, but I did the best that I could to make the story complete.

What was up with Louise? I’m not sure. I could tell that she had a lot of other personal issues going on outside of the courtroom. She frequently seemed to be on edge – and her pen paid the price for it. I assumed that she was a single mom because she talked about child care a lot. I never came out and asked her because it wasn’t any of my business. Just like every other profession, sometimes personal lives carry over into professional lives.

No, there were no romantic trysts – at least as far as I was aware.

There were several parts of this story that I left out. I took pictures of a few things with my cell phone. I doodled pictures of the jurors while they were being asked questions during voir dire (Louise yelled at me for doing so). There were several interactions with Vinny that I left out because they seemed to drag on (even more than the story already did). If I write a book, I’ll probably include these other snippets.

I had actually planned to file a countersuit against the Grinch and his expert. One of my best friends and someone who I deeply respect is a medical malpractice plaintiff’s attorney. I never told him about my malpractice case until after it was over. Then I told him about what had happened and how I planned to sue the plaintiff’s attorney. It turns out that he was close friends with the Grinch. He told me that the Grinch was a good person who did a lot to help families and the community. I thought about it for a while and decided to move on with my life.

What did I learn? Lawsuits are stressful. I didn’t change my practice much other than to document things a little more thoroughly. That slows me down a little, but ends up being a necessary part of emergency medicine.

If you have other questions, post them below and I’ll try to answer them.

Thanks for all the great comments and for the interest.

Writing this story has been a great experience.

Now I have to figure out other interesting things to post about in the future.

People at both tables stood at attention as the jury filed back into the room. None of the jurors looked at us as they took their seats. That made me uncomfortable. I could feel my heart rate kick up several notches. In fact, I could faintly hear my heart beating in my ears. I was conscious of every breath I took.

The judge asked the foreperson if the jury had reached its verdict.
“We have.”
“With regard to whether the actions or inactions of Dr. WhiteCoat were an actual and proximate cause of the plaintiff’s death, what is the jury’s verdict?”
“We find in favor of the defendant”
“With regard to whether the actions or inactions of Dr. GreyCoat were an actual and proximate cause of the plaintiff’s death, what is the jury’s verdict?”
“We find in favor of the defendant”
“With regard to whether the actions or inactions of CrossTown Hospital or its agents were an actual and proximate cause of the plaintiff’s death, what is the jury’s verdict?”
“We find in favor of the defendant”

The codefendant punched me in the arm and hugged me.
I looked over at the plaintiff. Her head was hung and she covered her eyes with one of her hands. The Grinch had his arm around her and was whispering something in her ear.

I sat back down in my chair and stared at the table. I didn’t know what to feel.

Relief.
Let down.
Tired as hell and half ready to fall asleep.
Mix in one pinch of vengance and a few sprinkles of self-righteousness.
Happy didn’t really seem to come into the picture at that point.

Louise asked me how I felt.
I said “emotional.”
She kept watching me. I looked up at her and looked away again. It really annoyed me that she kept eyeballing me. I furrowed my eyebrows. It was making me angry. Then my eyes started to well up with tears.

I don’t know why it popped into my head at that point, but I thought that if a man could ever experience PMS, this must be what it would feel like. That thought made me burst out laughing while tears were running down my cheeks.
Louise must have thought that I was a total nut job right about then.

I called my wife and told her the news. She was at work and started cheering with excitement. Her voice was jiggling, so I could tell that she was bouncing up and down.
Then I heard her nurse yell “He DID?” in the background. Three or four other people started cheering. “Woo hoo! Yeaaaaahh! Congratulations!”
They were having an instant party on the other end of the phone line and I was sitting on an old wooden court house chair feeling numb.

Yet again, my wife helped me put things in perspective. I needed to be happy and stop being a drag on everyone else’s good mood. I hung up with her, stood up and hugged several people. I shook Vinny’s hand, thanked him, and gave him a hug. I even hugged Louise, although it was one of those hugs where you touch shoulders, turn your heads away from each other, and pat each other on the back a couple of times.

I looked around to give the Grinch a good stare, but he, the plaintiffs, and the family had already left.

The judge was gone, too.

I went through the door in the back of the courtroom to find the judge. Behind the courtroom was a long hallway with a series of offices. I walked up and down until I found the judge’s office and I went inside.

His door was partially closed, but I could see him taking off his robe and hanging it on a hook. I knocked and asked if I could speak to him for a second.

He walked out and I shook his hand.
“I know my opinion probably doesn’t mean much to you, but I wanted to tell you that I thought you ran a good trial and that you kept things fair. I appreciated that and wanted to thank you.”

He nodded his head a couple of times and then said “I’m glad that you’re at the end of your ordeal.”

Talk about hitting the nail on the head.

As the Grinch began to talk, I quickly saw why the codefendant physician was so upset. Most of the things the Grinch said either were untrue or distorted the evidence.

“There is nothing to suggest that the family’s observations were wrong.”
In reality, every one of the medical personnel that evaluated the patient most of the day noted none of the findings that the family observed. It upset me that the Grinch never addressed those discrepancies during my testimony. Then again, Louise never brought them out either. Perhaps they didn’t want to emphasize them. All part of the “show.”

“The patient’s medical records confirm the family’s observations.”
Yeah, only after the patient had gone into septic shock and was near death eight hours after he came to the emergency department.

“Dr. WhiteCoat only listed only “findings” in his note, he never listed any “diagnoses.”
So what? This was never an issue until late in the trial and none of the experts even said anything about it.

“There was no question that there was blood on the abdomen.”
Only one medically trained person even mentioned the possibility, and that person hadn’t even done a thorough exam.

“Dr. GreyCoat was not a reliable witness. He was impeached and said something different between his deposition testimony and his trial testimony.”
He really did not get impeached. His deposition testimony was that he “believed” I had done something, when I really had not done so. He tried to clarify it in his testimony, but the Grinch glossed over it. There was no difference, but the Grinch blew it out of proportion.

“Dr. WhiteCoat had a duty to the patient in the emergency department whether or not the patient had been admitted.”
This statement had nothing to do with any pertinent issue in the case. He was just throwing dirt at me to see if it would stick.

“And then look at the demeanor of the witnesses. On direct examination, you saw a ‘gentle, calm’ Dr. WhiteCoat. When he was presented with evidence that made him look bad, you got see the ’snarling, angry’ Dr. WhiteCoat.”
I may have been a little angry, but I never snarled.

“Dr. WhiteCoat’s failure to request a surgical consult up until he transferred the patient care to the admitting physician was pure and simple negligence.”
The only basis for this assertion was his hired expert’s testimony. I later learned that during her closing argument prior to my arrival, Louise had made a big deal about how much money this expert had been paid — on the order of $4 million during his work as an expert witness. Wow.

Through all this, I kept my poker face. I kept telling myself the only reason the Grinch was making all these stretches in logic was because he knew he was losing and he was taking desperate measures to attempt to win the case. I had to trust that the jury would not buy into the silly arguments.

“My client is without a husband because of the negligence of these physicians and that hospital.” He held out his arm and pointed a long arthritic finger at us as he made the statement.
“This jury should send a message that blatant negligence like this will not be tolerated from any healthcare provider.”

With that, the Grinch sat down.

Then the judge began reading through all of the jury instructions. There are a lot of them.

“The laws of this state say that a jury must …”

My head started swimming again. I tuned out the judge and actually started thinking about the patients from the night before. What really happened with the girl and her boyfriend? Would the dad kick his drunk son out of the house? Why doesn’t he go to rehab, anyway? What will the scar on the little girl’s forehead look like after her cut has healed?

I snapped back to consciousness to see everybody standing up around me. Louise hadn’t even bothered to kick my chair. I quickly stood up.
The judge had finished talking and the jury was filing back into their room to do their deliberations.

Once the door had been closed, Vinny offered to buy everyone lunch.

“You can go home if you want,” he told me. “Deliberations could take hours or they could take days. I’ll call you once we hear something.”
In other words, I should plan on my head not being in the game and should plan on picking up my phone on the first ring between 9AM and 6PM for the next couple of days.
I wanted to go home to get some sleep, but I took him up on his offer for lunch.

All of the attorneys left their cell phone numbers with Hitch, and we headed down the street to a burger joint.

During the walk, Vinny talked about the pros and cons of jury deliberation.
“If it deliberations last less than two hours, it is generally considered a defense verdict. Otherwise the jurors have to go through all the calculations of damages.”
Here’s hoping for a short deliberation, then.
“That doesn’t mean that short deliberations are always defense verdicts, though. Not too long ago, a jury deliberated less than an hour before finding AIG liable for $8 million.”
Here’s hoping that none of those jurors or their families lived in this city.
“And …”
“Could we not talk about this right now?” I asked.
“Oh … sure. Sorry.”

We sat down in the restaurant and made our orders.
Vinny and Louise started bantering back and forth about the different jurors. The hospital attorney just sat there and stared. He wasn’t the talkative type.
The other doc and I caught up on what each other had been doing since leaving the old hospital. He had moved to another state and was helping to run a residency program. He actually saw another patient 6 months prior who had the same problem that the patient in our case had. “Damn right I called the surgeon as soon as the patient reached the door. Surgeon asked me why the hell I was calling him when I hadn’t even done any testing.” We both laughed.
“Didn’t make any difference with the patient, though. He still died.”
Ironic.

Then the hospital attorney’s phone rang.
“Are you kidding me? Yeah. The other defense counsel is here with me. I’ll tell them. We’ll be there in 20 minutes.”
He hung up his phone and looked at us.
“They’ve got a verdict already.”
“Are you kidding me?” Vinny asked.
Louise got a big smile on her face and pumped her fist toward the middle of the table, almost knocking over her glass of Diet Coke.

As we were getting all of our orders changed “to go,” Vinny reminded us …

“Don’t forget – it only took 45 minutes for AIG to lose $8 million.”

Closing arguments were underway when I arrived in court.

As I walked into the courtroom, several of the jurors looked up at me and smiled.
“Good sign, especially the way I look,” I thought to myself.

The Grinch had already finished his initial closing arguments. Louise was discussing my case when I walked to the table. As I sat down, the codefendant physician whispered in my ear that the plaintiff wanted $2 million as reasonable compensation for my alleged failure to call a surgeon soon enough. I stopped and looked at him for a second. He raised his eyebrows as if to say “poker face.” I sat back down and felt my blood start to boil.

They settled out with one hospital for $250,000. Now they want 8 times that much from us?

The doc then leaned over to me again and whispered “His first two hours of closing arguments were a bunch of lies. I really want to strangle that guy right now.”
I thought to myself “Are you TRYING to make me go postal in the middle of this courtroom?”
I took a liking to the Tom Petty song “I Won’t Back Down” during the prior few weeks. Those words “You could stand me up at the gates of hell but I won’t back down” ran through my mind right then.
Zen master. Be calm, mind. Take deep breaths.  Ahhhh. Better.

When my thoughts settled down and I tuned myself into closing arguments, Louise was summing up our case.
“If you believe that Dr. WhiteCoat performed as a reasonably well qualified physician under the same or similar circumstances, you should vote in favor of the defendant. If you believe that it was not required to call a surgeon when the patient arrived in the emergency department, you should vote in favor of the defendant. If you believe that the patient would have died no matter what Dr. WhiteCoat did, you should vote in favor of the defendant. And if you believe that the patient did not suffer any damages based on Dr. WhiteCoat’s actions or failures to act, you should vote in favor of the defendant.”

Hearing her say these things made me very emotional for some reason. I was probably just tired. I was a lot more confident about this case before today. Then all of these bizarre thoughts started running through my head.
What if the jury decided to award the plaintiffs $2 million? That was $1 million more than my policy limits. I would be bankrupted. What would happen to me? What would happen to my family? I would have to appeal the verdict.
Maybe I would enter into a settlement arrangement with the plaintiffs attorney where I just paid the policy limits. But what if he would not agree to that?
Boy, my head was really spinning.

I looked around the courtroom and saw several new faces watching from the stands. The plaintiff’s daughter was sitting with a group of other people. There were several other people sitting in a small group that I did not recognize. I later learned that they were attorneys from another law firm that were “sizing up” some of the attorneys here today. Another one sitting alone was the representative from my insurance company. She had been to court a lot lately. She saw my head turn and smiled calmly at me. That seemed to stop my head from spinning so much. I am glad I looked over and saw her. Of course, if she had given me one of those other “looks” after hearing the Grinch’s closing argument, I think I would have had a nervous breakdown on the spot.

Louise reminded all of the jurors that she was not going to have the chance to stand back up and rebut what the Grinch would later say. The plaintiff had the burden of proof and therefore was given the opportunity to begin the closing arguments and to end closing arguments. She reminded them to all make their decision based upon the evidence, not based upon sympathy. She said that she knew sympathy existed, because the jury was not a bunch of “Bobs,” but that the law stated that the jury could not base their decision on sympathy.
I think she wanted everyone to laugh at her “Bobs” comment, but I don’t think anyone understood it. After making the comment, she hesitated for a moment, like a comedienne waiting for the audience to laugh. All we heard was the court reporter clicking away on the keys of her stenotype machine. When even that noise stopped, Louise stammered a little then continued. After a few more sentences, she thanked everyone for taking the time out of their schedules to sit on the jury, then she bowed to them and sat down.

I looked over to the plaintiff’s table. The Grinch was busily writing things down his notepad. This is where attorneys really earn their money during a trial. They have to think on their feet and change their strategy in mid-stream. I am sure that the Grinch was creating responses to the things that Louise had just finished saying, but he had to do so while still listening to what the hospital attorney was going to say. Tough predicament for him to be in. “Good,” I thought.

While the hospital attorney was making his closing argument, I noticed that he didn’t introduce the hospital representative. I looked over and she wasn’t there again. She had been missing several days of trial over the past week. Her child was sick two days last week and was sick again today. Hope he feels better.

I liked the hospital attorney’s technique with evidence. He described how the Grinch stated that there was “no evidence” that several things occurred in the case. The hospital attorney set up a big poster board on an easel right in front of the jury while he was talking. As he was talking, he would refer to things from the medical record, such as my notes, the notes from the surgeon, notes that the plaintiff’s daughter had taken while they were in emergency department. As he referenced each document, he would pull them out of a binder and stick them to the poster board with pushpins. Then he would refer to the poster board over and over again pointing out all of the “evidence” that was “plain to see” in responding to the plaintiff’s case.

Many times he talked about my testimony at trial. He had printed up all of these pieces of paper with the names of all the doctors on them. I saw that he had at least 4 or 5 pieces of paper with my name and different quotes on them in a neat little stack. As he referenced something that I said, he would pick up my quote, push another little pin through it, and stick it to the poster board.

After the hospital attorney had stuck a half dozen pieces of paper with my name on it to the poster board, out of the corner of my eye, I saw Vinny write something on a piece of paper and elbow Louise. I didn’t turn my head, but strained my eyes a little more so that I could read the words “He scares the hell out of me.” I looked up at Vinny’s face and he looked like he was deep into a hand of Texas Hold’em. I watched Louise write something in reply and push the pad out of my sight. Vinny read the note and quickly folded up the paper and put it in his pocket.

There go those butterflies again.

By the time the hospital attorney was done with his argument, there was a poster board with probably 20 or 30 pieces of paper stuck to it. I think it made quite an impression when he finally stated:
“The plaintiff’s attorney said there was no evidence of many things happening in this case…”
Then he walked over, put his arm on the poster board, and looked at it for a few seconds without saying anything. After the dramatic tension had built up, he looked back at the jury and said
“Well … I beg to differ.”
Then he took the board down and set it against the wall.

It was time for the Grinch to finish his closing argument.

Monday morning. The last day of trial … I hope.

Several members of the jury were quite upset with the judge because he called in sick on Friday. Apparently I wasn’t the only one who planned on the trial being over with last week.

I wasn’t able to find coverage for my 24-hour shift yesterday, so I had to work all night. I usually get at least a few hours of sleep at night. Of course, as fate would have it, last night was so busy that I was lucky to get an hour of sleep.

Things had finally settled down in the ED and I was getting ready to hit the couch in the doctor’s lounge when a young lady came in for evaluation. She had been involved in a fight with her boyfriend three days earlier and, after drinking a wee bit too much peppermint schnapps at 1:30 in the morning, she came in to be checked out and to make a police report against her boyfriend.

I had just finished talking with the police about this young lady when another police car rolled up to the ambulance bay. An ambulance pulled in along side of it. Police officer and paramedic escorted in a young man who was bleeding from various aspects of his head and face. An anonymous caller had notified police that there was someone passed out in a church parking lot. Why someone was driving through a church parking lot at three o’clock in the morning was beyond me. It was near zero degrees outside and by all rights, this kid should have frozen to death. Whomever called the police probably saved his life.

The story gets better, though.

When police saw that this young man was still breathing, they called paramedics, leaving him laying on the ground until paramedics arrived. The ambulance sirens apparently stimulated the “fight or flight” response in the patient and he chose the latter. As the paramedics pulled up, suddenly the patient sat bolt upright, jumped to his feet, and began running away from them. The paramedics chased him, telling him to stop because they were only trying to help. No sooner were the words out of their mouths than the patient ran right into the side view mirror of a truck and broke the mirror, sustaining a large gash to his forehead. The laws of inertia caused the upper half of his body to stop motion while the lower half of his body continued its getaway. The sudden change in the center of gravity, combined with the effects of alcohol on the patient’s sense of balance, caused him to fall backwards hitting the back of his head on the running board of the truck, and then landing back on the ground from which he had previously so suddenly arisen.

By the time the patient arrived in the emergency department, it was obviously that he was intoxicated. There was a mixture of blood and vomitus matted to his hair and he had a large palpable hematoma to the back of his head. Apparently he had done something to upset the paramedics as well. The paramedics, in order to check him for other injuries, had cut off his coat and other clothing in order to perform a thorough examination. They left his underwear intact, but most of the rest of his clothes looked like something from an old Incredible Hulk movie.

When I walked in to examine him, he had a strong odor of Miller Genuine Draft about him and was not able to answer my questions appropriately. We had to shave part of his head to examine the injuries and so that I could see the laceration on the back of his head to sew it. Fortunately, the injuries were not severe. We found a large lump in the pile of shredded nylon sitting against the wall – formerly known as the patient’s coat. On further examination, we extracted an unopened tallboy can of Pabst Blue Ribbon beer. My ability to discern between odors emitted by rival beer companies had obviously been affected by my lack of sleep.

After radiating his cranium and repairing his lacerations, we attached him to a monitor and tucked him into bed so that he could sleep it off.

The waiting room was empty throughout the night, but there was a constant flux of patients into and out of the ED rooms.

Early in the morning, the intoxicated patient’s father called the emergency department. He had called several emergency departments in the area and was happy to find that his son was safe. The nurse told the father to bring some clothing and coat. The father was quite upset. “They cut his coat off AGAIN!?” The nurses replied “Well . . . yes they did, sir.” Apparently this was not the first time that the young man had been picked up by paramedics. His drinking was becoming an expensive habit.

The father showed up about 30 minutes later with a bag of clothing. He appeared somewhat upset — more so with his son than with the situation. I handed the father the tallboy can of Pabst Blue Ribbon and he told me to throw it away. I considered saving it for later, but opted to crack the can open and dump it down the sink, reacquainting my nostrils with the distinct PBR odor.

The shift ended as it began … busy. After signing over all of the patients to the oncoming physician, I went into the call room and changed my clothes from scrubs to a suit, changing my identity from physician to defendant.
I forgot a tie.
Dammit.

Stopped at the donut shop down the street from the hospital and got an extra large cup of coffee for the trip into the city.

I had to stop at the men’s clothing shop on the way to court to purchase another tie. Different clerk this time. Apparently he realized that I was in a hurry. He asked me what I was looking for. I told him I needed something to match my suit. He quickly picked out a very nice tie that I was ready to purchase until I flipped over the tag and saw that it cost $125. I was ready to walk out and go to court without a tie when the salesman found one “in the back” that cost $50. Fine. It was a “steal” compared to the one I bought there last week. I’ll stop in to check out the underwear aisle next week.

I just wanted to get to court.

So this is it. The big day. Expert testimony this morning, closing arguments this afternoon. Jury deliberations start next week, but I didn’t have to be there for them. The case is over with today. What a great feeling.

Hopefully it’s not a bad omen, but I spilled yogurt all over my tie while riding the train into town. The spill looked horrible. At $30, my tie was one expensive bib.

On the way to the courthouse, I found a men’s clothing shop. They had a wall of ties and I went about finding a tie that matched my jacket, pants and shirt. After about ten minutes, I came up with one that was “close enough.” I turned it over and nearly choked when I saw that it cost $89. I went to put it back and the salesman helping me said ” Tell you what, I will give you 35% off the price if you come back and see me in the future.”
There goes the little voice inside my head again … Oh yeah. I’ll stop back and buy my Jockey shorts here – my attorneys already owe me three pair of them. What do they cost – like $49.95 per pair?
So I paid $65 for a tie.
This funky looking piece of silk will henceforth be known as my “lucky tie.”

When I got to the courthouse, I discovered that they were not going to call the last expert witness. Everything that needed to be said regarding the case and the standards required had already come out through the testimony of other experts. They determined that this expert’s testimony would have been “cumulative,” so everyone agreed not to have him testify. It probably saved the Grinch another five grand in expert fees, too.

Everyone was upbeat. Vinny and the hospital attorney brought in easels so that they could diagram their complex arguments for the jury. Vinny told me how he was going to devote one page to the experts. He planned to draw a line down the middle and then list all of the experts who had the same opinion. Two of the plaintiff’s experts and our two experts on one side of the line with the plaintiff’s surgeon all by himself on the other side of the line. I don’t think that the jury believed the plaintiff’s surgeon anyway. Speaking about the jury, I didn’t hear them laughing and joking in the jury room. Maybe they were somewhere else.

I decided to treat the stuff that happened with Louise up to this point as water under the bridge. If she started up with me again, I would reconsider, but since this was the last day we would be in court, I doubted that there would be a problem.

Then Vinny told me that Louise was going to be doing closing arguments. Gulp. Instant butterflies in my stomach.

Then Louise walked into court looking disheveled. Her jacket was unbuttoned and part of her blouse had come untucked. The belt to her overcoat missed the loop on her left side. The right side of the belt was tucked into her pocket and the left side of the belt was hanging off of the loop in back of her, so it swung back and forth like a tail when she walked. She put her notepads on the table. At the top of one was written “WhiteCoat Closing.” There were lines, different colored inks, and all kinds of doodles scribbled out all over the pad. Those butterflies in my stomach were beginning to feel more like bats.

Vinny was very methodical and comforting. Louise worried me because she could be scatterbrained at times.

I smirked at the irony. It was almost like me being in the hospital and debating whether I should allow the resident to perform an operation or I should demand on the attending physician’s services. Ironic because that was one of the ancillary issues in this trial — whether or not a resident is qualified to take care of critically ill patients. Was Louise qualified to argue a complex closing argument? I just continued to have faith and trust them. We made it this far.

The court clerk opened the door to the back and poked her head into the courtroom. She saw Vinny and said that the judge wanted to talk to him. He told her that not all of the attorneys were present. Apparently attorneys can only talk to the judge if all sides are represented. The court clerk said that was okay because he just wanted to talk to any one of the attorneys. Vinny walked back into the chambers.

He came out about three minutes later and looked very upset.

My heart sank.

I had flashbacks to how patients must gauge my expressions when they are in the hospital emergency department. By Vinny’s look, I knew that something was wrong. He walked over and cursed under his breath. It seemed like an eternity until he spoke again.

I had another flashback to one time when a teenage girl had been killed by a drunk driver and was brought to my emergency department. Her parents came into the hospital and I did not quite know how to break the news to them. I started to mumble a little bit and then the father grabbed me by the shirt with both hands and said “Speak, man, SPEAK!” He already knew what I was going to say. He just needed to hear the words.

He started out “Well….”
I thought to myself “Can we drag this out any longer? Is it THAT bad?”
“The judge called in sick today. We’re going to have to postpone closing arguments until next week.”
It was like a weight was lifted off my shoulders.
“THAT’S all? Heck, for a second I thought that one of our experts was going to be disqualified or something.”
Then he added “I am going to go down to see if we can argue this case without the judge.”
Shortly thereafter, the Grinch walked into the room. He didn’t bring anything special for closing arguments – just his briefcase.
The court clerk motioned him towards the back. He went back into the judge’s chambers and I heard him say “If he dismissed the jury, then I’m leaving.” He came through the door from the judge’s chambers, grabbed his briefcase, and walked out of the courtroom. Didn’t give it a second thought.

I waited around for Vinny to return. He walked through the outside door with a disgusted look on his face about 10 minutes later.

“Well … nothing we can do now.”

Frustrating.

It was a long train ride home that day. To make matters worse, my notebook computer crackled when I turned it on and suddenly stopped working.

I just remembered – I thought the trial would be over with today. I scheduled a 24 hour shift from Sunday morning to Monday morning. I wouldn’t be able to make it to court until the afternoon. Have to see if I can switch the shift.

So much for the “lucky tie.”

Maybe Louise could use it as a belt for her overcoat.

The next day riding the train back into the city I was attempting to do work but couldn’t concentrate. I was irritated with Louise. I kept thinking about what to say to her. The more I kept thinking about it, the more angry I became. First I thought that I would just tell her to stop the micromanagement. Maybe I wasn’t the perfect client. Maybe I smiled once in a while or nodded my head. So what? Maybe I second-guess some of their decisions. I second-guess everyone – even myself. Yeah, I know, you have “experience.” Experience is the ability to make the same mistakes over and over again with greater and greater confidence. I like it when people question me. I need a reality check once in awhile.

Wait a minute. I’m the client. Good attorneys adapt to the circumstances. So practice.  I had to stop. I was getting myself irritated to the point that I thought about calling the insurance company and complaining about her. We’ll see how things go today.

Was sitting in court when Louise walked in. You could see that she had something to tell everyone. She sat down and started laughing because she yelled at her daughter after she got home the previous evening. Guess I’m not the only one Louise takes things out on. She was laughing because her daughter was only five years old and when she began crying she suddenly blurted out “THAT was unexpected.” Apparently not something that Louise would expect from a 5 year old. Louise looked disheveled. Either this trial is getting to her or something else is wrong.

Before the testimony started, I whispered something to the doc sitting next to me. Louise reached over and wrote the word “STOP” on my pad. I scribbled a box around the word “STOP” and took notes on the rest of the paper. By the end of the morning, all that was visible as a bunch of notes with a big square and the word STOP in the middle. I saw her look over at my pad and shake her head. She ignored me the rest of the day. Good.

Today I got the chance to sit back and watch how the jury views a defendant. It was my codefendant’s turn to finally get up on the stand and tell his story. He was ner-vous. Kept tapping his fingers on the desk and looking around the room like he wanted to crawl out of his skin. He said that yesterday while I was testifying, he knew all of the answers to the questions as each attorney was asking them. He practiced last night with his attorney and said he felt ready. I don’t think that he was quite as confident on the inside.

They called his name. One of Vinny’s pieces of advice didn’t hold true. Nobody watched him walk up to the stand. Vinny recommended that witnesses “stride confidently up to the stand.” I can see not slouching, but strutting? Nah. Nobody paid much attention. Maybe the jurors weren’t interested. Maybe they didn’t like him. All I noticed was that they weren’t watching.

When he first started testifying, I could see what everyone means about speaking up. I could barely hear him. For some reason, the attorneys voices seemed to carry well, but it seemed as if the person on the stand was talking through a pillow. I made a hand gesture for him to speak up. Louise scowled at me.

The Grinch started in questioning him as an “adverse witness.” This doc didn’t get the opportunity to “ease into” the questions by first discussing his background and his educational history. The first question was “you’re licensed to practice in this state, aren’t you?” On the second question, the Grinch opened up the barbecue pit and started grilling him.

It was interesting to watch the Grinch avoid subjects that might have shown the jury how this doc was not involved with certain aspects of the patient’s care. Of course, the Grinch didn’t say anything to me about the ambulance report, but that was one of the first things that he brought up with this doc. Yesterday the doc told me that he sat back and watched the jury get angry while the Grinch was questioning me. I found myself getting angry listening to this attorney grill the doc. The hospital representative didn’t have as much “bling” on after the first couple of days at trial. Must have finished her novel, too. She was actually listening to what was going on. Even she seemed ticked off. Have to focus on the poker face.

Many jurors were taking notes on during the doc’s testimony. To me, it seemed like a good thing because it showed that the jury was assimilating new information. However, several jurors were sitting there with their arms folded — almost as if they had heard enough.

This doc fell for the “Wouldn’t you agree” trap a couple of times. The Grinch got him into a habit of saying “yes” to questions, then threw in a couple of curve balls and got the doc to agree with them. I kept wanting to hold up a sign saying “LISTEN TO THE QUESTIONS.”

“You knew that this condition was deadly, didn’t you?”
“You knew that this condition could lead to sepsis, didn’t you?”
“You knew the signs and symptoms of this condition, didn’t you?”
“And despite knowing all this, you failed to call surgery right away when this man’s life was on the line, didn’t you?”

The Grinch would also jump around cherry picking different “facts” from different sources at different times to try to make his case look good.
“You should have known that…,”
“Did you see in the chart how…,”
“Would you agree with other experts who have testified to…,”
“Dr. X’s note shows that ….”
He never allowed the doc to testify about a note or document in its entirety. By having the doc read the notes into the testimony, he was essentially replacing the doc’s testimony with what was written in the notes.

One of the other things the Grinch kept doing was mixing up the timeline. Time was a crucial component of both sides of the case. The Grinch kept jumping back and forth with the facts so that there was confusion as to the exact timeline. He just kept throwing out snippets of information and saying “and you didn’t call a surgeon in then, either, did you?”

During critical points, the Grinch would take an indignant tone and say “Do you mean to tell the jury that …?
The doc remained calm and simply said “yes.”
Quite effective.

For some reason, the judge hates the doc’s attorney and he doesn’t care for the hospital attorney much, either. Any objections the doc’s attorney makes are “overruled”. The Grinch apparently caught on to the judge’s feelings and got a second wind regarding the hospital’s liability. He started making more and more daring statements and was getting away with them. When the doc’s attorney got up and started asking questions, the Grinch would object and the judge would usually sustain the objections. It was obvious that the doc’s attorney was getting frustrated. Note to self: Don’t piss off judges.

The defense attorneys had a huddle. They decided to try to work their way around the judge’s roadblock by letting Vinny do most of the redirect examination. The judge seemed to like Vinny. The plan worked. Vinny made short work of all the silly assertions the Grinch had been making.

Never really watched the judge before now. He tended to lean back in his chair and stare up at the ceiling a lot. In fact, he was in that position most of the day — at least today, anyway. I could tell that he was daydreaming at times, because when there was an objection, he would stop proceedings and ask the court reporter to read back the testimony before making his ruling. He pulled this maneuver multiple times during the doc’s testimony. The judge was probably thinking about a million other than what was going on at trial.

All of a sudden, the judge sat upright in his chair. In mid-question, he announced to the court that everyone was going to take a “comfort break.” Ha! I stood up this time. Louise didn’t seem to care. The jurors went back into the jury room and the judge disappeared back into his chambers. He either needed some Pepto-Bismol or he forgot his anniversary and needed to have flowers delivered.

The doc finished his testimony with little difficulty. When he came down off the stand and sat back down next to me, the first words out of his mouth were “Those were the two most difficult hours of my life. Look at my hands. They are sweating. Somebody give me something to wipe them on.” That “something” ended up being his pant legs. Overall he did very good. Gave up a couple of points, but overall came off as credible, and it appeared that the jury liked him.

I looked in the public seats and noticed that a representative from our insurance company was watching the testimony. She wasn’t there yesterday. I went over and said hello. She said she was sorry she missed my testimony the day before but that everyone was going through several new cases back at the office. I wasn’t sure why she was in court that day. The other doc was a resident at the time and was insured by the hospital. Did she want to watch this doc’s testimony? Did she want to watch me? Was she checking up on Vinny? Didn’t matter. She said that she was happy with how the testimony went today and how things were going in general. So was I.

Ended the day at lunch. Only one more witness tomorrow and that is the end of the trial. Jury deliberations start next week. Hallelujah.

Louise ran out of the room right after court was dismissed. I yelled to her to ask if everything was alright. I’m sure she heard me, but she didn’t even look back. Vinny just waved at her and didn’t say anything.

Overheard Hitch talking about problems he was having with his hip replacement and how he had to go to the hospital a couple of days ago. Wondered how many docs who had been sued would remember him from court. Could imagine someone yelling down the hospital halls the way that he likes to yell in court.

“No, nurse, we need that high colonic enema in Hitchcock’s room … 728 B! And bring Surgilube! A whole lot of it!”

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.