Thursday, February 06, 2003

Here's an email from a past juror in a medical malpractice case. It makes for fascinating reading, especially if you think that the natural sympathy is with the plaintiff:

About a year ago I served as a juror in a medical malpractice trial. Since then I've been haunted by it, and I wanted to just write about what happened. I was a holdout, and I caved. At the time I thought my reasons were sound, but now I'm not sure. So I'm going to write about the case and some things that could've changed the outcome, so that if I WAS wrong, maybe this'll be of some tiny help to you on behalf of some future victim of malpractice.

The case was simple: A stroke-victim mother of four (hereafter RG) with a history of high blood pressure showed up in a doctor's office complaining of nausea and amenorrhea. The doctor says he ordered a pregnancy test that came up negative. This was a point of some contention but the jurors all believed the test had been done. Doc put RG on blood pressure meds that aren't known to be harmful to a pregnant woman but wouldn't be prescribed if the condition were known.

About a month later RG appears at the same office, sees a Physician's Assistant who fails to notice on the chart that the last menstrual period was six months ago and proceeds as if oblivious to the possibility of RG being pregnant.

Some months later RG's water breaks. About 24 hours (!) later she arrives at an emergency room with a small foot sticking out of her. The baby dies in delivery. RG sues, arguing that the failure to detect her pregnancy led to the loss of the baby.

Big Thing Plaintiff's Atty Got Wrong #1: Each side presented two doctors. It quickly became clear that one on each side was testifying as to standard of care, and one on each side was testifying as to cause.

They weren't introduced as "our standard-of-care" witness, but this was obvious enough. Defense scored a lot of points on the Plaintiff's cause witness by playing on the fact that he spends most of his time teaching and doing research and little time working with patients when not teaching. This made a great impression on most of the jury. I argued that this was silly--that the cause witness was there as a scientist and that it actually enhanced his credibility that he spent all his time doing research on high-risk pregnancy. I maybe turned one or two jurors on this point, at most. This line of argument would've been far more effective coming from the plaintiff's attorney. She instead fought on the ground the defense had chosen, trying to defend her really impressive scientist from the accurate but irrelevant charge, rather than pointing out how irrelevant it was.

Big Thing Plaintiff's Atty Got Wrong #2: She never got her cause witness to simply come out and say something like "It's my opinion that, to a reasonable degree of medical probability, the baby would've been delivered healthy had RG's pregnancy been detected." There was a lot of stuff about what happened and why, about the dangers of breech presentations and decreased oxygen flowing through a damaged placenta and the heightened risk of same due to hypertension. He never came out and simply said, however, the thing that the plaintiff was supposed to prove. I was left on a tiny minority (4 vs 8) arguing that you he didn't say it because it was obvious. As I'm not a doctor, I didn't win any converts with this line of reasoning. We all went over our notes and couldn't come up with a clear statement from the plaintiff's cause witness like the one I wrote of at the beginning of this graf. Eventually I agreed that if he didn't say it, it's because he couldn't say it.

Big Thing Plaintiff's Atty Got Right, But Didn't Count For As Much As One Would Hope #1: Plaintiff's s.o.c. witness enumerated for us several specific instances in which the defendants fell below the standard of care. "Failure to have the patient lie down during an abdominal exam falls below the standard of care." "Failure to note the last menstrual period on the chart falls below the standard of care," etc. Defense's s.o.c. witness went down more or less the same list arguing that this or that did not fall elow the standard of care. But he didn't hit every item on the list. Specifically, he didn't refute the two examples I gave. You'd think this would, all by itself, settle the issue of negligence and let us move right on to cause, but it didn't. The final vote was 9-3 on that point, and we had to fight like hell to get that ninth vote. One girl was just smitten with the doctor and wouldn't hear a word against him, and was further convinced that RG was just a gold-digger. (She had no trouble recognizing the negligence of the female physician's asst., however.) I don't know what on Earth the other two were thinking. It seemed like simple black-and-white to me. Plaintiff's doctor says "A, B, C, D, and E" are true. Defense says "A, B, and D" are false. In any case, C and E are obviously true, and either alone is enough to support the claim of negligence. How did
this happen? Read on...

Big Thing The Defense Got Right: Their s.o.c. doctor explained that "There's no standard of care for documentation." The meaning, as I understood it, was that whatever the standard of care requires in terms of things you do or don't do, it makes no explicit demands in the area of documentation. If you can somehow remember everything you need to know about a particular patient, you're not required to document anything. Somehow, in the jury room, this got badly warped--to the point that any failure in care that was aggravated by sloppy documentation was excused. ("She didn't notice the LMP on the chart! That's a failure to reach the s.o.c., pure and simple." "Aha! But the
standard of care doesn't address documentation, and that's documentation!") If you ever hear a defense witness say anything about how standard of care doesn't address documentation and you figure that a juror can't possibly misunderstand this, let me assure you that more than one juror did. I had a devil of a time persuading one to take my view, and never did get through to another. If Defense gets that line off unanswered, he's hit you below the waterline.

Big Thing The Plaintiff Got Right, But Didn't Count For As Much As One Would Hope #2: She made a big deal about how both of her doctors made frequent court appearances, almost always (75% of the time) for the defense. To me, this said that doctors who'd normally take the defense's side were so appalled at this case that they suited up for the other team. I imagined that each side would have a list of doctors, with the most impressive ones at the top and the least impressive ones at the bottom, and they'd just go down their list until they found a guy who'd take their side, and that this meant that the plaintiff didn't have to go down the list much at all. Nobody else was much impressed by this. Plaintiff's attorney should've stressed this point in her closing arguments. (Is she perhaps not allowed to?) None of the other jurors even noticed this. They took it as a routine and uninteresting part of the introduction, about as important as where the doctor did his residency.

Huge Thing The Plaintiff's Attorney Just Couldn't Do Anything About: How on earth does a mother of four not notice that she's pregnant? I argued that she's poor and uneducated and that to her, a doctor is God, and this doctor said she wasn't pregnant so that settled the question in her mind. The rest of the jury, especially the mothers, were having none of it. I argued that they (the mothers on the jury) were themselves educated and articulate and not at all intimidated by doctors, and didn't properly appreciate the power of that kind of authority on someone like the plaintiff, but got nowhere. By this point, I didn't really believe it myself. Her water broke and she didn't get to a hospital until 24 hours later! This fact was the single most important thing in the trial, and it convinced most of the jury that whatever mistakes the physicians made, the vast bulk of the blame lay with the plaintiff anyway.

Ultimately, we found for the defense. By votes of 9-3 and 11-1 we found the doctor and the physician assistant, respectively, negligent. By votes of 12-0 and 9-3 we found that the doctor and physician assistant's errors, respectively, were not shown to have led to the plaintiff's injury. (Doc's only s.o.c. failure was botching an abdominal exam that wouldn't have detected the pregnancy even if he'd done it properly. The PA was really the one on the hook here.) As I wrote, I'm the one who caved. We quickly found both defendants negligent, very quickly found that the doctor's negligence was irrelevant, and then swiftly deadlocked at 8-4 on the question of whether the PA's negligence caused the injury.

What seemed obvious to me--that of course detecting the pregnancy meant that the baby would in all likelihood be delivered healthy--wasn't at all obvious to 8 of my fellow jurors, which included a known idiot but also included a handful that I'd grown to respect a great deal. Persuaded that most of the blame lay with the plaintiff, and that it wasn't even clear from the record that, had he been on the jury, the plaintiff's cause witness would've sided with the plaintiff, I caved.

If you're still with me, thanks for reading.

See? Juries can be a microcosm of society, from the idiots, to the smitten, to the ones haunted by what they did or did not do. By the way, the first thing I thought when I read the facts of the case was: How can this lady not know she's pregnant, regardless of what the doctor's office said. An obvious tragedy -- losing a child -- but what did she think that moving lump in her belly was? Too many burgers? I would have turned the case down on that point alone. Great email, though.


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Anonymous said...

a lesson to all of us... nice sharing... hope the women will have a child again...