By Don Keenan
As a puppy lawyer, I tried a ton of medical malpractice cases. First, no experienced lawyers wanted to touch a malpractice case because it was near impossible to win in front of the jury, and secondly, I needed the trial experience.
Predictably, I wandered in the desert of defense verdicts for longer than I care to imagine until I decided the old adage that insanity is the repeating the same thing in the face of failure. Now my persistence in continuing to try malpractice in the wrong way actually originated in law school when I had the proverbial lying dog wingtip, bow tie, Brooks Brothers, Roman numeral behind his name trial advocacy professor who had never tried a case. This trial lawyer wannabe nonchalantly stated that personal injury cases were easy because all you had to do is establish liability, causation, and damages and then step back because the slot machine of justice would pour out hundreds of thousands of dollars in the verdict. I didn’t know any better, so I continued to try the case from liability first, then causation, and then damages.
Having gotten a chance to speak to a boatload of defense jurors, they all kept getting hung up on liability. They either didn’t know what the standard of care constituted, or medical language, or they didn’t know the proper way of looking at the informed consent risks. Doesn’t matter what the liability hang-up, the failure rested on my shoulders and I tried everything imaginable to un‑confuse the liability picture. Then after multiple defeats, I simply decided to give up and try something different.
Looking for a new way, I asked myself what would happen if I tried causation first, then liability, then damages. I went in this order mainly because trying damages first didn’t make much sense, but causation might yield better results. I thought this because if you can prove that healthcare providers’ acts or omissions caused the injury, then hopefully, that would minimize the obstacles in the liability portion of the case.
So about 14 years ago in a very bad venue in South Carolina, against the backdrop of a no-offer case and ten straight focus group losses, I decided to try causation first in a case where the liability was quite complicated.
Well to say that trying causation first works is a massive understatement. The county had never produced a 7‑figure verdict and the jury brought home, in my case, a $13,750,000.00 verdict. The closing argument in this case is contained in the first volume of my “Closing Arguments in Wrongful Death and Child Injury Cases, Volume I,” page 137.
In order to outline the particulars of the case, I decided instead of me writing, I’d simply to put the headline article from Lawyers Weekly. Here’s the article.
29 May 2000
TRYING CAUSATION BEFORE LIABILITY IS KEY TO LARGEST MED MAL VERDICT IN SOUTH CAROLINA HISTORY
BY KRISTA ZEVITAS
Don Keenan used an unusual trial strategy to win the largest medical malpractice verdict in South Carolina history.
Trying causation before liability enabled Keenan to win $13.5 Million for a girl who suffered serious brain damage because her doctor misdiagnosed the severity of her jaundice when she was an infant.
VERDICT SPOTLIGHT
Keenan always employs this strategy in medical malpractice cases because he believes that when lawyers start with liability, the trial quickly bogs down in a battle of experts over the standard of care. And warring experts tend to confuse jurors and make defense verdicts more likely, Keenan notes.
“The jury doesn’t understand the importance of the violations of the standard of care unless they understand causation first. In trying causation first also simplifies the case, making it easier for the jury to follow. It’s a good idea, especially since 90 percent of med-mal verdicts are for the defense” says Keenan, whose Atlanta firm boasts a record of more than 127 verdicts or settlements in excess of $1 Million.
“So rather than focusing on all the mistakes that doctors made first, we prove when [the plaintiff] was injured and what caused the injury. Then we work backwards and prove how the doctors could have prevented it.”
For example, in the $13.5 Million case, Keenan set out to prove the injury happened shortly after the girl had seen the doctor.
“If I did this, then it wouldn’t take a lawyer to explain to the jury how the injury could have been prevented” he says. “The failure of the doctor to prevent [the brain damage] would be common sense.”
Defense attorney Robert H. Hood, Sr. of Charleston, South Carolina, declined to comment on the case.
THE VISIT
Sally Bartholomew was born healthy on December 19, 1994. Ten days later, she had her first pediatric visit with Dr. Jo Zurbrugg of Hilton Head, South Carolina. During that visit, Sally’s mother, Carol Bartholomew, complained to Zurbrugg that her baby was having feeding problems and that she was mildly jaundiced. The doctor, however, assessed Sally as a healthy infant with good development.
The following, week, Dr. Zurbrugg saw Sally two more times and determined that she had slow weight gain, feeding difficulties and mild jaundice.
On January 14, 1995, Dr. Eric Zurbrugg (Jo Zurbrugg’s husband) diagnosed Sally with bronchitis, pneumonia, conjunctivitis and an upper respiratory infection.
Two days later, the husband-and-wife team saw Sally together. They noted that the infant had lost even more weight, that she seemed less alert and that her color was gray. Then they instructed Carol to drive her to Memorial Medical Center in Savannah, Georgia, to have her examined further because of her gray color.
About 15 miles en route to the hospital, Carol noticed that Sally was blue and wasn’t breathing. She grabbed Sally and gave her mouth-to-mouth resuscitation while driving at 60 miles per hour. She revived her, then pulled over to call 911 on the car phone.
Twenty minutes later an EMT ambulance arrived to transport Sally to the Savannah Hospital.
Doctors at the hospital diagnosed Sally with a respiratory virus. They took MRIs and determined that Sally had suffered brain damage due to a lack of oxygen.
Sally’s parents sued the doctors, alleging that they were responsible for her injury. They contended that Sally wouldn’t have stopped breathing or suffered brain damage had the doctors:
- Stabilized Sally in their office with their oxygen tanks after noting that she was gray in color; and
- Properly transported Sally to the medical center (via ambulance or airlift).
The defense contended that whatever happened en route to the hospital didn’t cause her injury. They argued that Sally was born with a congenital defect or that her brain was damaged in utero.
CAUSATION FIRST
Keenan says that his trial strategy can be applied to virtually any med-mal case.
“There are hundreds of labor and delivery cases every year in which the plaintiffs are trying to prove that the doctor acted inappropriately during delivery and brain-injured the child,” says Keenan. “And causation facts are often very, very powerful for the plaintiff and appeal to the common sense of the jury.”
In one common scenario, a doctor fails to perform a Cesarean section on the mother and the plaintiff claims that this is the cause of the baby’s brain damage. The ultimate goal is to prove that the baby was brain-damaged during labor or delivery. So Keenan doesn’t start with liability issues because “having experts talk about what the fetal heart strip shows and why the doctor should have performed a C-section after [reading] the fetal heart strip is medical book technical talk that can lose [the jury].”
Instead, Keenan, in his opening statement tells a gripping story that grabs the jury’s attention.
“I start with, ‘At the very moment John came out of his mom, he was blue. He was gasping for air and his PH level – which indicates whether he received proper oxygen – was way low. And all this indicates that he did not get enough oxygen within moments or hours before birth,” says Keenan. “So then the jury’s already thinking, ‘Well, damn, why didn’t he receive enough oxygen? Why wasn’t he taken out sooner?’ And you get to say it’s because the doctor made mistakes.”
After he’s finished giving opening statements and examining his experts, Keenan says the defense is left without much ammunition for their cross-examination.
“If the jury’s convinced by their common sense that the doctor could have prevented something, then the defense is done before they get a chance to get up,” he says. “They run the risk of making the jury mad by trying to suggest alternative causation and usually can’t score points during cross.”
Once he’s established causation, Keenan shows how the defendant breached the standard of care and is therefore responsible for causing the plaintiff s injuries.
“The jury pays much more attention to the [standard of care issues] once they’re convinced about the cause,” says Keenan, “When they work ‘backwards’, it becomes an easy case.”
BARTHOLOMEW TRIAL
It was particularly important to work “backwards” in the Bartholomew case because the jury wouldn’t be as familiar with its unique facts as it would be with those in a botched-birth case, Keenan notes.
“We could have started the case by talking about the respiratory virus Sally contracted and about the signs and symptoms of that virus,” he says. “We could have put on some experts who would have said, ‘These are the signs and symptoms of that virus and these are the proper tests that should have been run.’ But it would have been a very difficult case for us that way, because they would have produced experts to say just the opposite.”
So Keenan began the story of Carol Bartholomew on the highway.
“I told the jury that she was all by her lonesome and that she looked over and saw her baby dying in front of her,” says Keenan, “I talked about her literally holding the steering wheel in one hand while she held her daughter in the other and breathed life into her. At this point, the jury [believed] that this child was dying on the highway and they were all sitting there wondering how the doctor let this happen. So the doctor was already sunk – there’s no way he could have explained his way out of responsibility.”
After opening statements, Keenan examined Carol Bartholomew, the paramedic team that rushed Sally Bartholomew to the hospital and an EMT expert witness.
“The mom described her horrific ride and the EMT team testified what Sally looked like when they got there,” says Keenan, “And the expert testified that no trained paramedic would have advised Carol to go on the highway alone. He also testified that if the doctors had called the EMTs, they would have gone to the doctor’s office, seen Sally and characterized her as critical. They would have started her on oxygen, hung fluids to [hydrate her] and hooked her up to cardiac and pulmonary monitors to consistently [keep track of] the status of her body.
“Without getting into hyper-technical lawyer and medical mumble, this testimony proved that Sally was severely damaged on the highway.”
Keenan then described the defense’s causation arguments and showed why they weren’t valid. He did this through the testimony of four medical experts.
For example, the defense claimed that Sally’s birthmarks -brown marks on her face known as “cafe au lait” – signaled that Sally likely suffered brain damage in utero. A geneticist, however, testified that there was no link between the birthmarks and brain damage.
“The [birthmark] theory was a rabbit trail -as were all the defenses -and our expert said it wasn’t even worthy of discussion. But we had them go through each defense anyway so that the jury could see how they were almost laughable,” says Keenan.
Keenan says he used first-rate medical experts.
“We had a neonatologist who wrote the first textbook on neonatal transfers, a geneticist who had a 30-year history [as a professor] at a leading medical institution and a pediatric neuro radiologist who was a former president of the World Society of Pediatric Neuro-Radiology.”
After trying causation, Keenan went on to show how the doctors breached the standard of care by not preparing for the worst.
“They testified that Sally had good respiration and a good pulse [on January 16],” says Keenan, “But my argument was that they noted she was ‘gray’ and therefore should have planned for the worst -the worst being that she could have stopped breathing on the way to the hospital. And they admitted they hadn’t.”
KEEPING IT SIMPLE
Keenan notes that he simplified the liability phase by only presenting the most egregious violations of the standard of care the doctors had made.
“We chose not to talk about more marginal [violations] and chose the four most important ones,” says Keenan. “If we had argued [that] the doctors should have done morejaundice testing early on, the defense would have sounded credible arguing that they didn’t believe the testing was necessary at the time. And we didn’t want to lose credibility.”
Another key trial strategy, notes Keenan, was simplifying the medical terms so the jury could better understand them.
“For example, if a doctor said, ’The differential diagnosis should have been this,’ I would ask him, ‘Wait a minute, doctor, what is a differential diagnosis? Would it be okay to just use the term ‘process of elimination’ and forget about the medical term?’” Keenan says’ “And the doctor would answer ‘yes’ and I’d use the [lay] term when I was examining experts.”
To ensure the jury could follow with even greater ease, Keenan decided not to use the power point presentation he’d put together.
“I’m a big believer in cutting-edge demonstrative evidence and we had a $15,000.00 presentation with 300 slides that could do anything but make you coffee in the morning,” says Keenan; “But we had several jurors who were over 60 years old and I didn’t think any of them had even used power point at work before . I felt I could capture their attention better with the old method of demonstrative evidence – so I opted for butcher paper and magic markers.”
Keenan adds that the defense’s allegations hurt their case.
“If the defendants claimed Sally was damaged in utero, they should have noted some abnormality,” he says, “And they didn’t, which made them seem even more negligent.”
THE VERDICT
After a three-week trial, the jury deliberated just three hours on liability and damages before returning a $13.75 Million verdict for the plaintiffs.
The previous record for med-mal verdicts in the state was $5 Million, notes Keenan. He says that a life care planner estimated Sally’s future medical care expenses at $5 Million.
“She has a vocabulary of about 20 words and will always be in diapers,” he adds. “And she’s at the stage now where she recognizes that she is different from other children and she’s going to need psychiatric care [because of this].”
During trial, the plaintiffs offered to settle for $4 Million, but the defense declined the offer and made no counter offers.
The defense has filed a motion for a new trial.
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Over the last 14 years I can’t tell you that all of my malpractice cases have been causation first, but I can say the vast majority have been. For example, I had a case dealing with a childbirth in which the trauma of the process caused the blood of the child to shunt away from the vital organs, in this case the kidneys, such that the client had kidney failure that will require renal transplants every 5 years and the child will have stunted growth to the point where he falls in the dwarf category.
The birth occurred in a university resident training hospital and the records clearly indicated that the use of the vacuum extractor was excessively used above the acceptable norm. Thus, the jury didn’t have any problem conceding that it was the suction of the vacuum extractor that shunted the baby’s blood to the top of the skull and away from the organs thereby causing renal failure.
Just as soon as I proved the causation, the liability was almost strict liability. In other words this could only happen with a doctor in violation of the safety code, too many pop offs.
The final example of trying causation first with great success is pure Reptilian© and finds its home in the medical attitudes research we did very early between 2003 and 2009. We discovered that the code for physician is “you don’t care about me” and the elements being (1) doctors don’t spend time, (2) doctors don’t listen, (3) doctors don’t properly test, (4) patient records are riddled with error, (5) consult doctors do not speak to the attending physicians. So once two or more of the medical attitude elements are proven, then once again strict liability attaches. If the doctor didn’t spend the time and didn’t listen, then that’s obviously the reason for the damage, so say Bubba.
Bottom – line. Not in every case, but clearly many cases, trying causation first in a medical malpractice case will provide the keys to recovery. Focus groups would be the key to discovering which cases are most appropriate.
NOTES from DON:
1. This week I got 7 requests for codes and fortunately I had them all, for all requests. Remember a) do not guess and b) you cannot find the codes yourself. We certainly invite you to ask for codes but if we do not reply, it is because we don’t have the code.
2. We continue to get requests for referrals to lawyers in other States versed in The Reptile. We got 5 case referrals this week. There’s no charge for this service so if you need an out of State lawyer for one of your cases, just ask. There’s no charge for this service.