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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See previous posts in this series here.

New day, new witness.

Now it was time for the experts.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This should be good.

See previous posts in this series here.

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

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

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

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

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

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

Nice.

As everybody prepared for the plaintiff’s opening statement, I could see that 7 of the 12 jurors had their note pads out and were ready to take notes. Good.

There were several tables in the courtroom. The plaintiff, her daughter, and the Grinch sat at the table closest to the judge’s bench. There was a three foot gap between their table and our table. Vinny sat at the end of our table next to the plaintiffs. Louise sat next to me. The other defendant physician – the on-call medical resident taking care of the patient – sat on the other side of me. His attorneys sat next to him. A smaller table formed an “L” shape at the back of the courtroom. Hospital attorneys and a hospital representative sat on the end.

The Grinch started strong out of the gate by misstating several facts in the case. I had the charts committed to memory. I could rattle off the pages that showed he was misrepresenting things. Less than one minute into the trial and I already felt like standing up and asking him if we’re talking about the same patient.

He made statements like “the facts can only show that Dr. WhiteCoat should have called the consult sooner,” and “there was no question that the patient was suffering from this disease – blood was oozing from his abdomen.” Lying bastard.

I read up a little about trials before all this went down. According to what I had read, attorneys are not allowed to make arguments in the opening statement. They’re limited to factual statements only.

“Without immediate treatment, this disease will undoubtedly kill the patient.” Whaaat?!?! Didn’t everyone remember the juror that was excluded when he had the same type of symptoms and did just fine? How much more argumentative can you get? I kept looking over at Vinny. He just sat there taking notes. Blank stare. Poker face. No objections.

Then I looked at Louise. She had her hair in a bun and was all prim and proper in her dark blue blazer and skirt. She had a poker face as well. She intermittently took notes on a note pad with her chewed-up pen, but was apparently more interested in doodling a picture of a flower at that point.

I leaned over and asked “Are we going to do anything about this argument crap?”

She put her pen down firmly on the pad, looked back at me, put her hand over her mouth and whispered “Doc-tor … You have to leave this in our hands now. You have to trust us.”

The little voice in my head said “Yeah? Bite me. You have Starbucks breath and I hate it when people call me ‘Doc-tor.’” I kept my mouth shut.

Apparently my comments got to Louise, though, because she objected three times after that and all three objections were sustained. On the third objection, the judge told the Grinch to “knock it off.” The objections threw the Grinch off his game.

“The family thought the patient looked horrific. They knew that something was wrong even before Dr. WhiteCoat did.”
“Dr. WhiteCoat chose not to consult a surgeon, but instead asked a second-year resident to come and help him figure out what was wrong with the patient.”
“The most appropriate consultant was a surgeon, not a doctor in training. But the surgeon was one of the last people called.”

I leaned over and looked at Vinny again. He just sat there taking notes in his notebook. I was getting pissed … to the point that I could feel my face getting red. Louise stopped doodling and looked at me with the kind of stare your mother uses when she’s mad at you and she doesn’t want to say anything to embarrass herself. I stared back at her for a second, gave her a little fake smile, and sat back in my seat.

“Multiple medical experts will tell you that the standard of care required an immediate surgical consult when the patient arrived in the emergency department. When he arrived, the patient was ’salvageable.’ Because of Dr. WhiteCoat’s delays, there was no chance to save him.”

I leaned over to the codefendant physician and whispered “where is he getting this stuff?” Louise leaned over to me and whispered “Stop it.” She hesitated a second, looked me in the eye again and said “STOP… IT….”

“This was not one of those cases in which the doctors can just say ‘We’ll take care of this tomorrow.’”
“Had there been an early surgical evaluation, the patient would still be here today.”

I sat up in my chair after the plaintiff attorney said this. Finally, Vinny objected to the statement as being argumentative. The judge sustained the objection. Great. He’s awake.

“The evidence will overwhelm you in favor of the plaintiff,” the Grinch concluded. “As you listen to the evidence in this trial, ask yourself one question — why wasn’t the surgeon contacted when the patient arrived at the hospital?”

The Grinch sat down at his table. Vinny twisted his head to the side in an apparent attempt to crack his neck. Then he fumbled with some papers and stood up.

“Now … you will learn the rest of the story. I’m going to tell you all the things that the plaintiffs lawyer didn’t tell you. You will learn that the patient’s disease was an extremely rare disease … doctors may not see one case in their entire career. You will also learn that the patient was too unstable to be taken to surgery that night. You will learn that another hospital mismanaged the patient’s care by misdiagnosing his condition twice before he ever came to see Dr. WhiteCoat in the emergency room ….”

Vinny went on for about 15 minutes contradicting most of the things the Grinch said. He repeatedly referred to the notes he had taken while sitting at the desk, saying that “Mr. Grinch told you this, but the facts will show that wasn’t the case. Instead, the facts will show this.”

I liked it. I think the opening statements gave Vinny some credibility and made the Grinch look like he was trying to mislead the jury.

After opening statements were done, Vinny pulled me aside and chastised me.

“Don’t act like that, you hear me? You want the jury like you. You know they’re going to like the plaintiffs because their family member died. Sit there, smile, and look friendly. We clear?”

“Yeah … crystal.”

See previous posts in this series here.

After the potential jurors got the chance to sit and stare at me, it was my turn to size them up. I wanted to get a good set of jurors, but I had no idea what to look for.Vinny helped clue me in.

There are several things to be considered. Attorneys have to try to guard against bias. Some jurors may have hidden biases that the attorneys try to discover through questioning. Some jurors also have very strong personalities and may influence other jurors. One person’s will could possibly become the will of many because of their strong personality or because of their knowledge regarding a subject. Those types of jurors are called “superjurors.”

Jurors can be excluded either for cause or by preemptory challenge. Being excluded for cause means that the juror has a pre-existing bias and the judge decides that the juror would not be impartial in deciding the outcome of the case. If a juror cannot be excluded for cause, then each side has several preemptory challenges where a lawyer can exclude a juror for no reason. Once all the preemptory challenges are used up, you have to take what you get, so you have to use your preemptory challenges wisely. Part of the game is seeing what order the potential jurors will be presented in. If a lot of good jurors appear early in the course of voir dire, then you try to save your preemptory challenges for later to exclude the potential bad ones.

The potential jurors all had to fill out a questionnaire before they came to court. Attorneys for both sides had copies of all the cards. Vinny told me that in complex medical malpractice cases like this, it was his experience that less educated jurors tended to award money to plaintiffs based on sympathy instead of basing a decision on the facts of the case. While we waited for the judge, Vinny flipped through the cards. One woman wrote that she was employed as a “watres.” Vinny set her card to the side. Another wrote that he was an “employe.” Vinny set his card to the side, too.

Before the questioning took place, a couple of jurors said that they could not promise they would be unbiased because of problems they had with doctors in the past. They stated that they would try to look at things fairly, but that they could not promise they would be unbiased. They were excused. Take note, all you people trying to avoid jury duty.

Then the lawyers began to go back and forth asking sets of three potential jurors the same questions over and over again. One of the jurors fell asleep and began snoring. He sounded like a door creaking until another juror kicked his chair from behind. He sat up with a jolt. Several people giggled.

One of the first potential jurors called looked promising. His wife was a doctor. He also had a close friendship with an expert witness, and he said that his relationship with the expert witness relationship could influence his decision. The judge bounced him. Damn.

Mrs. C. was a woman in her fifties. Her husband was involved with multiple workers compensation claims. She seemed very upset about those suits. Almost as if she was biased against plaintiffs. Her sister was a nurse. She ended up being excluded.

Mr. S was a man in his fifties. He was a single business owner and a sole proprietor. He had no lawsuits. Several of his friends were police officers and he stated that the fact that the patient was a police officer may influence his decision. He had a pre-existing bias towards resident physicians, stating that they should not be in charge of patient care. Seemed very opinionated. We excluded this one.

Mrs. M. was a 26-year-old corrections officer at the local prison. During most of the initial questioning, she played with her fingernails and did not pay attention to anything that was going on in court. Vinny excluded her.

Mr. L was a 40-year-old restaurant manager. His wife was one of his waitresses. His brother was recently hit by a car and is involved in a lawsuit. His father died and he believes that it was due to medical malpractice. Fortunately, the judge excused him because of the potential bias.

Mr. F was a 62-year-old retired newspaper editor. His son was a photojournalist. He had no previous jury experience. He has a friend who is an orthopedic surgeon. When asked about the current healthcare setting, he stated that he wanted malpractice limits. The plaintiff excused him.

Mr. L was a 50-year-old telecommunications specialist. His son was a minister. He had a problem with the surgery that was performed on him and getting insurance to pay for it. Eventually the doctor who performed the surgery paid for the remainder of his charges. He seemed very happy with doctors although he was nervous when being questioned. Seemed like a good juror for our side, but the plaintiffs got rid of him.

Mrs. B. was a 66-year-old retired video producer. Now she owns a studio with her husband. Her daughter-in-law is an emergency physician in Milwaukee. Several relatives are physicians and a brother-in-law is a surgeon. Another great juror that was excluded by the plaintiff.

Mrs. P. was a 60-year-old homemaker. Her husband is a tax attorney in her son is a real estate attorney. Her son and daughter-in-law both pediatricians. She was previously a foreperson in a jury with a case involving personal injury. Her son had been involved in a lawsuit against his law firm that was “thrown out of court.” On the surface, she seemed like a good juror, but I had bad vibes about her. While she was sitting in court, she repeatedly looked over towards the plaintiffs, almost as if she sympathized with them. A further questioning, she revealed that she had been the victim of medical malpractice by having a fracture that was missed by an emergency physician. Later her primary care physician caught the fracture and treated it appropriately. She said that she was “not angry” afterwards. She had many interactions with medical residents and had “no problems.” This just seems like a woman who has a hidden agenda. I told Vinny that I did not want her on the jury. The plaintiff asked for a meeting in the judge’s chambers. When everyone came back, she was excluded. Good.

Another Mr. B. came right afterwards. He was a 60-year-old guy who owned a heating and air-conditioning business. He had been sued several times in the past due business contracts. He stated he had a big problem with the insurance industry. “Every time someone does something, they get sued. My insurance is through the roof.” Another one of the plaintiffs bullets gone.

Mrs. K. was a 45-year-old special-education professor. She said that she had several cousins and friends in the medical profession and that she empathized with physicians. She stated that her feelings toward physicians may impact upon her impartiality. The judge rolled his eyes and said “Fine, you are excused.”

Mr. C. was a retired electrician, 55 years old. His father died during surgery and the surgeon taking care of him was a resident. He was excluded by the hospital.

Mr. S. was a very interesting potential juror. He was 65 and was a retired manager for any production company. His sister is a nurse. He states that he has a problem with nursing care because “they all speak foreign languages.” About 30 years ago, he said that he had a problem very similar to the plaintiff’s problem and healed up just fine from it. Said that the doctors did a good job at treating him for it. I leaned back with a smile on my face, folded my arms, and looked over at the Grinch. He looked back at me and I nodded my head at him. Needless to say, this juror was excused after another meeting in the judge’s chambers. I wrote down his name and all the stuff he said, so that when I testify, I will make sure to bring him up as an example to show how some patients can have the exact same symptoms as my patient had and can do just fine.

We broke for lunch. I went off on my own and ate in a little greasy spoon restaurant near the courthouse. Called my wife and told her how things were going. Wished she was there with me.

Mrs. M. was a housewife and former pediatric occupational therapist. Her husband was a computer consultant. She had been on two juries. She conveniently brought a note from a doctor saying that she was just started a new medications for migraine headaches and that those medications may cloud her judgment. Good one. The judge excused her.

Mrs. P. was a 50-year-old secretary. She stated that she was admitted for five weeks at the same hospital being sued and that they “saved her life.” She didn’t remember much about her emergency room experience. Wouldn’t that be weird if I was the one who treated her? The plaintiff excused her. He is running low on bullets.

Selection continued on like this for a couple more hours. Eventually, the full jury was selected, but we needed to pick several alternates. Almost there. Vinny said that both sides were running low on their preemptory challenges.

A note to self: Eat bland food for lunch. During lunch, I had an omelet with sausage in it. By the time we were up to picking alternates, my stomach was singing the Star Spangled Banner. Hopefully court will get out for the day before the omelet makes it to the other end. Otherwise, the whole courtroom is in trouble. Wouldn’t make a very good impression on the jury, I’m sure.

Mrs. L. was a 56-year-old clinical therapist with the social services department. She was very opinionated. She stated that she had been in jury duty one time before in the past and “felt clueless.” Bye-bye.

Mrs. C. was a 48-year-old housewife. She was Spanish and stated that her English was not so good. When the attorneys asked her about the plaintiff, she began crying and stated that she felt so sorry for this woman losing her husband. She stated that she was a “very sensitive person.” She said that she would try her best on the jury. After several go arounds with the judge, she was excluded.

Mr. B. was a 45-year-old systems analyst. He reminded me of Jerry Lewis. The mother of one of his friends died from overmedication after surgery. His father-in-law died from a heart attack. One of the things I noticed about him was that when he went to the bathroom, he purposely walked behind the plaintiff and defense tables with all of the paper sitting around and was snooping through what he could see on the tables as he walked by. This nosiness bothered me, especially since it kept happening. I did not especially want him on the jury, but he was chosen as the second alternate.

Jury selection is finally complete. Pretty happy with the makeup.

Now we get down to business.

See previous posts in this series here.

I was just about to beat my phone at backgammon for the third consecutive game when the doors to the hallway opened. About forty people were standing in the hallway waiting to get into the room.

My phone suddenly vanished and my posture immediately improved.

All of the advice Vinny gave me on our walk to court began to run through my head. Smile and try to make eye contact. As they file into the room, I’m smiling and looking at each one of them. No one seems to care. A couple of people hesitated, glanced at me and then glanced at the plaintiffs. They all searched around for a place to sit. There were three rows of benches behind a gate separating the visitors from the courtroom. Forty people were herded into those seats with Hitch as their sheepdog.

“Slide in. Slide in, will ya?”

I was waiting for him to pull out his billy club so that his pants would fall down.

It suddenly became very uncomfortable now that 40 people were all sitting in a room with their attention focused on me. Obviously, I didn’t want to be messing with my cell phone, so I pulled out the medical records and began to read them. I knew what most of the records said already, but I wanted to look busy. I took notes on a legal pad, not because of some earth shattering discovery in the chart, but so I could remember my thoughts and write about the whole experience later. They couldn’t see what I was writing, but I looked busy.

I cast another glance over at the plaintiffs. They were sitting in the same position, staring at the opposite wall with their hands folded.

Everyone sat in silence for the next 30 minutes. Sniffles, coughs and shuffling newspaper pages were the only things that intermittently broke the silence. I noticed that I did not hear the lawyers arguing anymore. OK, I have been through the chart three times already. How many more times can I sort through this thing?

Then Madame Sigh caught my attention. She’s sitting less than ten feet away from me in the front row and she keeps sighing loudly every minute or so. I know lady, nobody really wants to be here. Try not to remind everybody about it. With the 15th sigh, I have now decided that she is getting kicked off of any potential jury. I’m not listening to that for the next two weeks. I start to make tally marks on my notebook with each whiff of her breath I catch. Something to do . . . hooray.

It has now been an hour and 10 minutes since I sat down in the courtroom. The jury has been sitting staring at me for just over 45 minutes. Madame Sigh is up to number 67. The sighs were starting to get more frequent. Was she in labor? No. No. Wait. Wait. She’s in DKA. Yeah. Or maybe a brainstem herniation? A “When Harry Met Sally” movie remake audition? I felt myself wanting to giggle, so I tried to stop that line of thought … which is like trying not to think of an albino elephant. Once the image is in your mind, it’s tough to just “forget” about it.

There was a small jury room next to the judge’s bench. One of the jurors asked Hitch where the bathroom was. He pointed her to the jury room then he sauntered into the back again. Now that everyone knew that the courtroom had a bathroom, suddenly everyone had to go. Within no time there was a line of at least 10 people waiting to go to the bathroom. That was a good thing. Now I can pass the time watching other people walk by me, and, as I scanned the room, I saw that everyone’s attention was no longer focused on me. There was now something else to look at. Thanks, Hitch.

A little while later, Hitch entered the room, adjusted his belt for a minute, cleared his throat and exclaimed loudly “I have good news and bad news for everyone.” The good news is that everyone can go back downstairs. You’re excused for the day.” He never did say what the bad news was. I kept waiting for him to look at me and say “The bad news for you, WhiteCoat, is that you have to sit here after lunch with 40 different angry people staring at you.” How many more times can I page through the chart?

The sheep all filed out of their stalls.

Madame Sigh, who, based on her fast respirations and rather unappealing breath, I had unofficially concluded was in the throes of DKA, waved her arms in the air and mumbled something about “missing out on a $100/hour job because of this.” I just smiled and nodded to several jurors as they filed out of the courtroom.

Well, it was back to just me and the plaintiffs sitting in the courtroom. I glanced over and they had hardly changed position. What WERE they staring at on that wall, anyway?

After everyone had left, a cadre of attorneys came in through a door on the opposite side of the courtroom from the judge’s chambers. How did they get there?

Vinny then told me the “bad” news that Hitch forgot to mention. The trial had been postponed.

Then he told me what all the arguing was about. It seems that even though the patient died more than 6 years ago, the plaintiff’s attorney had just found some new earth-shattering evidence against me and wanted to amend his complaint (i.e. change the bad things he said about me) on the day of trial. The judge nixxed that one. That was the “denied” statement I heard coming from the back earlier.
The Grinch also found a bunch of pictures of the patient taken on the day he died that he wanted to show to the jury. He wanted to argue that the patient’s appearance 9 hours later was the same as it was when I saw him. Of course, the patient looked horrible in the pictures. Didn’t make any sense to me because the plaintiff’s attorney was saying that my delay in diagnosis is what caused the patient to die, but he’s also arguing that there was no change in the patient’s condition for 9 hours, so the pictures should be admissible. I’m really not liking the Grinch very much right now. Judge didn’t rule on that request.
Then there were the experts. The only day one of the plaintiff’s experts could show up to testify was on the same day that Vinny’s son was supposed to have surgery. This expert apparently couldn’t get any other day free for a couple of months. He must be testifying against a lot of other physicians.

My attorneys wanted to proceed with trial and the plaintiffs wanted to delay it. The judge called the Chief Justice in the courthouse and they all went down to argue the issue in his chambers, hence the magic trick of leaving through one door and appearing through another door on the other side of the building. The Chief Justice agreed with the plaintiff.

So everyone donned their coats and left the courtroom like it was no big deal.

I took off two weeks of work for this damn trial and that’s it — “it’s been fun … we’ll do it again in a couple of months”?

This really sucks.

(read previous posts in this series here)

Took the train into town again. Never easy to find parking in the city, it costs more than dinner at a restaurant, and rush hour in the morning is anything but.

When I got to Vinny’s office, he had books and boxes laying everywhere. There were three boxes stacked onto a rolling cart with the name “WhiteCoat” on them.

Vinny and Louise both looked like they’d had a Mongo expresso with a Red Bull chaser. I thought I was nervous. Louise repeatedly went into these foot tapping fits. I couldn’t tell whether it was subconscious or whether she was doing it to irritate Vinny.

When Vinny saw me, he began shuffling through papers on his desk. After a few seconds, he found the one he was looking for and handed it to me. “It’s a bunch of B.S., but I have to officially give you this letter.”

The letter was from plaintiff’s attorney and addressed to me. It demanded that I settle the case for my full policy limits of $1 million or else he will go after my personal assets. I suddenly became very angry. I knew it was part of the game, but I just thought he had a lot of balls making a demand like that with the quality of the case he had against me.

“I’ll take my chances,” I told him.
“I figured as much,” he responded.

Louise was still doing the rhythmic foot tapping thing and then she began periodically checking her watch between taps while Vinny was going through stuff on his desk. Finally, in obvious frustration, she says “we have to go.”

During the walk to court, I got to be a firsthand witness of the ravages that caffeine can cause on the human body. Louise was developing a facial tic, was walking with her knees pulled together, and was already calling some imaginary dibs on the bathroom in the court house: “There better not be anyone in there.” Be wary, o courthouse bathroom dwellers … this woman is desperate. She has a chewed up pen in her pocket and isn’t afraid to use it!
Vinny was literally stuttering when he talked.
Both of them pepper me with more random “do’s and dont’s.”
Do not talk about the case in the elevators. You never know if a juror might be in the elevator with you. In fact, do not say anything within three blocks of the courthouse. We were already breaking that rule.
Do not wear flashy clothing. Fortunately, I don’t own flashy clothing. The best I can do is a couple of suits on the 2 for 1 rack at JC Penney’s every couple of years. Besides, it’s a little late for that little piece of advice, isn’t it?
When introduced to the jury, stand up, smile, say good morning, and sit back down. And make eye contact with all of the jurors. All of them.
Don’t drink in front of the jury — they don’t have a pitcher of water in front of them and may get mad at you if they’re thirsty. It will also make you have to go to the bathroom more often. Just suck on breath mints instead.
I kept walking and nodding my head.

Getting into the courthouse meant being scanned for dangerous objects. No one mentioned that one to me, either. They confiscated my pocket knife and my nail clippers, because obviously I’m going to have a nervous breakdown at trial, disarm multiple armed deputies, and commit mass murder by cutting everyone’s nails too close and giving them intractable paronychia. However, Louise was able to flash some card to the guard and was able to cut the line and enter the court with her peptostreptococcus-infested pen of death. The rest of the day better not go this way.

When Vinny opened the courtroom door, it appeared like a movie set. Projectors, wires, computers, and monitors were everywhere. This isn’t Kansas anymore. Butterflies immediately hit my stomach.

Everyone hung their coats in a conference room behind the desk at which the defendants were supposed to be seated. A court reporter was setting up her machine in front of the witness stand. Vinny and Louise walked into the back of the court and told me to sit in my chair.

I could hear people arguing in the judge’s chambers. Voices became loud sometimes. Part of me wanted to walk back to the door to eavesdrop … er, um … look for a bathroom. I remained seated, instead opting for a game of solitaire on my cell phone.

It became quiet for a second, then I heard someone, presumably the judge, loudly and firmly say “DE-NIIIED.” I wonder which side lost that argument. Hopefully not mine.

A few minutes later, the plaintiff and her daughter walked into the courtroom. They didn’t even look at me. Instead, they walked across the room and took their seats at the table next to me. I looked up from my game and glanced over to their table. They were both staring at me and turned their heads away in unison as soon as I looked their way. Can only imagine what they were whispering back and forth about me.

Then the bailiff sauntered into the courtroom and sat on the railing separating the court from the spectators. He was heavy set and as old as the hills. The weight from his keys and gun pulled his pants down further than they should have been, so part of his shirt was untucked. His looks kind of reminded me of one of those old pictures of Alfred Hitchcock. He had a gruff voice and barked orders at everyone as soon as they opened the doors to the courtroom.
“Put your coats in there.”
“Take your briefcase off the desk.”
“Turn off your cell phone.”
He walked back to a doorway leading behind the judge’s bench and began talking loudly with another bailiff. Everyone else was whispering. I wondered if he realized how scared the people sitting in the courtroom were. There is this tremendous fear of doing something wrong that seizes your whole body and keeps you from being yourself. Obviously, he doesn’t have that fear. Probably a lot like what people feel when they come to the ED to see me, I suppose. I wondered how he would feel in an emergency department with me snapping the glove over my hand and opening up a packet of lubricant.

All of a sudden, ol’ Hitch yelled out “Hah! Metro General settled out!”
What a jerk. What if the jurors heard that? Would they think that there was guilt because one of the parties settled out? I felt like saying something. Either that or clipping his nails too short, but they confiscated my only weapon. Curses.

There was still lots of arguing in the back. The jury was supposed to be in the room 30 minutes ago. I bet that a lot of them were thinking that they would get lucky and get sent home early for the day. Those words sent out a cheer in the room when I was in jury duty. I glanced over at the plaintiffs again. They both were sitting there staring straight ahead at the wall with their hands folded.

I was sick of solitaire. I settled into a game of backgammon.

(read previous posts in this series here)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hi ho, hi ho, it’s off to court I go.

(read previous posts in this series here)