By Don Keenan
ATTENTION: The Keenan Law Firm’s fellowship program will soon go into month 4. Our first fellow has already been in two trials. She has another 8 months to go. We are now ready to accept our second fellow. We have adjusted the fellowship to provide the fellow with two weeks a month to return to their practice rather than a solid year. If you have applied before we invite you to reapply. For an application or questions contact Wentrekin@keenanlawfirm.com.
Previously, you’ve heard from me in the blog, “Know when to hold them” (know when to fold them), but what happens when you know you’ve got to fold and the Black Hats don’t have any money on the table?
At the beginning of the Reptile© evolution, I was determined to accept difficult cases out of my comfort zone. I did so because I didn’t want to get the reputation (as some lawyers have) that I’d only take slam dunk cases with certain plaintiff outcomes; secondly, I wanted to test the limits of Reptile©. Consequently I took a case out of state dealing with what I thought to be a preventable death in a teaching hospital. The surgery was elective and the deceased really didn’t have any preexisting conditions, plus the records weren’t clear about what happened.
As we went down the discovery road, we found that the woman’s surgery was done exclusively by a resident and the intensive care nurse was concerned because her drain fell out, and there was a notation on a previous surgery record that she had experienced respiratory distress. The IC nurse acted appropriately in trying to contact the resident, but after repeated calls only got a nurse; the nurse relayed instructions to send the woman to the floor although the IC nurse wanted to keep her and specifically wanted the resident neurosurgeon to see her.
Seven hours later, the woman died as the result of asphyxiation caused by a combination of incisional swelling and the development of a hematoma. From post-surgery until her death, no attending ever came to the bedside. So the discovery was going well, but it got even better when we located a hospital report stating the cause of death was inexperience and lack of training on the part of the residents and nurses. Further, the resident personnel and nurse files were riddled with some of the most devastating evaluations that I’ve ever seen in any personnel files in over 40 years. Shazam!, as Gomer Pyle would say.
We proceeded to trial against the backdrop of a perfect record with focus groups (based primarily on the internal report) admitting fault, and the devastating personnel records. Let me tell you the end of the story first, and then how we got there. Case was a two‑week trial, which resulted in a defense verdict in a little over two hours. The verdict was nine-three.
At the end of the first week, I had to tell the family that based on the court’s rulings I couldn’t see any way the verdict would be in favor of us. So let me overview some (but clearly not all) of the unbelievable rulings by the court:
- The trial court ruled out any reference to the internal report admitting fault for the death. Don’t even begin to ask me why; it was a convoluted and nonsensical ruling, with all due respect to the judge.
- The judge ruled inadmissible 99.9 percent of the mountain of negative reviews and comments in the personnel records on the two residents and four nurses.
- In complete violation of the applicable state law, the judge ruled that a physician is incapable of giving standard of care testimony against nurses. Within the context of the case, this was devastating given the depth of our physician expert criticisms.
- To give you a flavor of how the judge used his circular ruling: There was nearly a two hour gap where not even a resident saw the patient, and the resident on deposition stated that she instructed the nurse to contact her if the condition changed; clearly, the condition did change and the resident was not informed. The resident testimony about not being notified by the nurse was excluded because the judge believed it was a physician testifying about the standard of care by a nurse, even though the question was clearly factual.
- There was some Reptile© that got through: First, we were permitted to use safety rules until the third day, then the judge reversed himself and said no more safety rule references. The conscience of the community was in, foreseeability was not. The statistic was referenced at the beginning of the opening without objections.
- The judge essentially prevented any form of system violation and directed us to try only the events post-surgery; thus, the exclusion of the internal report, the personnel records, and the lack of a written chain of command.
- Over our objections, the defense was able to go into the post-event career events of the residents (that is, all the good stuff – they went on to other resident programs, private practices, etc.) but the evidence of misery that they created, subsequently killing our client, were not permitted to be admitted (namely, that the junior resident had gone off to Florida and was involved in the brain damage of a young child during pediatric neurosurgery). Florida has the administrative procedure that permits the defendant to admit fault, thereby being immune to any of the more catastrophic damages; nonetheless, the administrative panel awarded $10 million to the family (such that the fund didn’t have enough money for this, and there is now a bill pending in the Florida legislature to fund it). Judge ruled this out but it was a fact she was on the faculty of University of Miami.
In retrospect, I don’t believe we lost the case because the judge excluded the Reptile©. We lost the case because the judge simply did not apply the correct law of medical negligence.
Back to the title of this article…what to do with a judge like this?
Well, frankly, there’s nothing you can do in the moment that we didn’t try to do. We filed briefs, argued case law, common sense, and nothing worked. The train was roaring toward us and we couldn’t stop it or slow it down, so we did the only thing we could: Stand proudly and bravely in front of the train to meet certain death – but with the understanding this case would be reversed, and we will live to fight another day.
In all probability, the widower will probably not make it for the retrial but his heir, a very believable and nice daughter with her expanded family, will take the benefits.
Between the Boston judge and this judge, I’ve not had too much luck with judges…so I’m going to work hard to develop some better strategies on how to confront this. By the way, we got to talk to the jury after this case, and the jurors were outraged that we could not inform them of the internal report or the personnel records.
The new trial after reversal will prove differently.
BOTTOM LINE: Sometimes you are the bug, and other days you are the windshield.