Malpractice: Courtroom Trauma

By Eddie Brady

The main story opens with a rendition of a medical malpractice jury trial against a surgeon, a hospital, a nurse, and a group of surgeons in a jurisdiction where the medical care professionals win 90 per cent of this type of civil litigation. The remainder of the book relates a collection of stories styled as short stories, snap short stories, and bullet stories, suggesting you not blink and challenging your attention span while packaging complete stories in few words.

• Language: English
• Publisher: Xlibris US
• Release date: Feb 26, 2016
• ISBN: 9781514452240

Eddie Brady

He graduated from Northeastern University, Boston, Massachusetts, with a major in business as well as graduating from Suffolk University School of Law, also in Boston, Massachusetts. He was invited to be a guest columnist and was published in suburban newspapers in the Boston Metropolitan area. He practiced law as in a corporate environment, as well as being a self-employed sole practitioner, specializing in personal injury law and civil trial practice. His published writings included memoirs, short story collections, a novel, a novelette, and a screenplay.

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Copyright © 2016 by Eddie Brady.

Library of Congress Control Number:       2016901064

ISBN:       Hardcover       978-1-5144-5226-4

       Softcover       978-1-5144-5225-7

       eBook       978-1-5144-5224-0

All rights reserved. No part of this book may be reproduced or transmitted

in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system,

without permission in writing from the copyright owner.

This is a work of fiction. Names, characters, places and incidents either are the

product of the author’s imagination or are used fictitiously, and any resemblance

to any actual persons, living or dead, events, or locales is entirely coincidental.

Any people depicted in stock imagery provided by Thinkstock are models,

and such images are being used for illustrative purposes only.

Certain stock imagery © Thinkstock.

Rev. date: 02/25/2016

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CONTENTS

Foreword and Backword

Book One: A Novelette

Chapter 1 Case Presentation

Chapter 2 JUA Decision

Chapter 3 Beware of the Rogue Juror

Chapter 4 Cross Examination of Young Peter

Chapter 5 Opposing Counsel Attacks

Chapter 6 Francine Murphy M.D.

Chapter 7 Jared Shortsleve M.D.

Chapter 8 Mrs. Beverly Comiskey

Chapter 9 Ivan Grusinger, M.D.

Chapter 10 Nurse Corneilia Durash

Chapter 11 Corner Store Owner

Chapter 12 Frank LaRue, M.D.

Chapter 13 Wow or Pow Finish - Harold Millstone, M.D.

Chapter 14 Defendant’s Knockout Attempt

Chapter 15 Judge Winslow’s Post-Trial Rulings

Book Two: Short Stories

A Psychiatric First

The D Cup Defense

Chinese – Russian Strange Encounter

Death Insurance

Why?

Ruined By Rubles

Revenge

The Doctor From Breslau

Book Three: Snapshort Stories

Murder, Massacre, Genocide or War?

Three Against the Wind

Beware of Beautiful Women

Why Write?

It’s Irish

Two Fooled

The Trapped Bigamist

Repressed Memories Recovered

The Defense

Same To You!

Super-Store Follies

Murder In Aisle One

Spaghetti Justice

Frontier Fairness

Car Bomb Greeting

Texas Sized Taxes – Ouch!

A Woman’s Point Of View

Book Four: Bullet Stories

Every Man’s Nightmare

Who Got the Goldfish

Oh Yeah!

The Lord Doth Will It!

Which One’s the Caliph?

Truth

Death Stalks Chappaquiddick Island

Der Fuhrer Diplomacy

Cardboard Kid

British Stiff Upper Lip

One Word

The Difference Between Man and Woman

Opening Night Tension

Lady Godiva/George Bernard Shaw Proposal

Viva Le Difference!

To the reader, who enobles my scribbling with their eyes.

DISCLAIMER

The Novelette is a work of fiction. All names, places, characters and incidents in the Novelette and other stories, except for the public stories of Charles Stuart and Theodore Kennedy, are imaginary, and any resemblance to actual events, or to persons living or dead, is coincidental.

FOREWORD AND BACKWORD

When dropping my ideas on these pages, pretentious as it is, I found myself amused or chuckling, at various times; not as much as I’d have liked, but enough to notice. But then, of course, I’m biased in my own favor. You can be more objective. That’s why your opinion is more important than my impression. And just for the record, I did not write this book to inform, educate or explain; I wrote it to entertain you; at least that is my hope. Did I? Meet me at the other end of this book, assuming you read it through, and let me know.

BOOK ONE

A Novelette

CHAPTER 1

Case Presentation

She came into my office, nodded politely, calmly took a seat, and burst into tears.

Edith Padrillo was a twenty-nine year old single mother who had recently come from Pilgrim Hospital in Boston, Massachusetts. A surgeon had removed a piece of glass two inches long from her six and a half year old son’s hand. The boys name was Peter. The injured hand was his right hand, his primary hand. Another doctor in the emergency room of the local Medford Hospital had a year before sewed the wound up and inadvertently sealed in the piece of glass. A year later, the wound got infected, turned purple and then oozed yellowish pus. Ultimately, the infected wound ruptured and burst open and spewed its poison out in an explosive spray. She rushed him to the Everett Hospital, another local urban hospital, where an x-ray revealed an embedded foreign object. After a careful examination, and gingerly cleaning the infected wound, the general surgeon working in the Emergency Room thought it best to refer the boy to a hand specialist at the much larger and better equipped Pilgrim General Hospital. There, emergency surgery by a hand surgeon finally removed a sharp, huge, piece of glass.

The mother was distraught and crushed with her own feelings of guilt and failure. She cried between gasps: What kind of a mother am I? How could I have allowed this to happen? Will I go to jail? I don’t know why I am here. My friends told me to go see a lawyer. She asked me imploringly: Who will take care of my kids, if I go to jail? I tried to reassure her that such a happening was extremely unlikely.

In the privacy of my mind, I thought of the informal rule of thumb that lawyers used to determine if a possible medical negligence case was worth pursuing: Oh, my God, how could that have happened? If this is the initial reaction, the case might be worth looking into. If it wasn’t, then the case was generally not worth investigating further. The reason for this initial reaction test is because the cost of initiating a medical malpractice case, so called, is very heavy in terms of financing, time and effort and length of litigation. It traditionally has had a relatively small trial bar. To me, this shocked reaction seemed like a reasonable one in this case. I also believed that people sitting on a jury would feel the same way. Therefore, I decided to obtain the pertinent documents to enable appropriate experts to render a professional opinion.

From what she told me, I thought her guilt feelings were misdirected, though understandable to a fearful mother unschooled in the law. Any criminal responsibility on her part seemed ridiculously remote to me, though I was not a criminal defense attorney. Since the removal surgery, no one had even attempted to bring any charges against her, and it was highly unlikely to happen in the future, in my opinion. But I was thinking of the original doctor who treated the hand or was it mistreated? She sputtered out her story in bursts of words that alternated between wracking sobs and rushes of garbled utterances. It took her a while to calm down. I just nodded sympathetically, trying to understand this tormented mother.

Edith was a pale, thin, emaciated woman, with long, scraggly brown hair, who seemed defeated by life and was struggling to keep ahead of her problems. She had a sometime boy friend named Karl Druzinski, who was erratic in his behavior, presumably because of his drug problems. When off the drugs, and employed as a construction worker, he was helpful, caring and attentive to her needs. However, he had this other side to him. While under the influence of drugs, he was fired because of too many absences, and for arguing with his co-workers and bosses. His personality would swing back and forth from a relatively calm demeanor to rage. At times, she had to call the police, when she no longer could handle his violent mood swings. Eventually, she barred him from her apartment.

Edith had two other children, each a year apart, an older brother, John and a younger sister, Priscilla. All three were fathered by her former husband, Peter, a carpenter, who was an active alcoholic, and whom she married when she was age eighteen. He had abandoned her and the children at age twenty-three, though he would sometimes show up when he had no place else to go. Technically, she was still married, because she said she couldn’t afford a divorce lawyer and didn’t want to endure the additional stress. She didn’t realize that she might qualify for legal aid, which might ultimately have lessened her stress. She just didn’t want to go there. To my amateur eyes, she seemed to lack sufficient self-esteem, which would have convinced her that she deserved better than what her estranged husband and this sometime boy friend could offer. Her parents were divorced and both died prematurely when they were relatively young; he from a stroke and her mother from a heart attack. She remained un-churched because she thought God had also abandoned her and her children.

DR. FRANCINE MURPHY

The one, stable influence in her life was her female family physician, Dr. Francine Murphy, who worked in the neighborhood public clinic nearby. Dr. Murphy’s office was fortunately within walking distance of her first floor, subsidized apartment that featured worn furniture, the best Edith Padrillo could afford. Dr. Murphy was a tall, thin, straight black haired woman of a serious, but compassionate nature. She ran this one doctor, one nurse, one secretary clinic, a branch office of the Medford Memorial Hospital, which was located in this poorer side of the city. In her early forties and single, and trained in Internal Medicine, she elected to go into family practice because she wanted to interact with her patients and have a people practice, instead of focusing on a narrow specialty. She had made this decision knowing it would be at a financial sacrifice. As a result, it did, in fact, take her longer to pay off her medical school loans. She came from modest circumstances and she became a family physician to fulfill a lifetime dream.

Dr. Murphy had early health problems herself, which required frequent medical interventions, and she was forever grateful to the medical teams for returning her to health. She had spent so much time in her early formative years with doctors, nurses and hospitals that she felt she literally grew up with them, became comfortable in that environment and transitioned fairly naturally through the vigorous and often exhausting medical school regimen. Her mostly poor patients responded to her caring treatment with gratitude and as much co-operation as their oftentimes chaotic lives permitted. Dr. Murphy’s best attribute, aside from her physician skills, may have been her ability to tolerate frustration, dealing with the limited resources of her clinic, her needy patients and the normal bureaucratic hassles with the main hospital. I could tell that she was a lifeline to Edith Padrillo and her children.

After listening to her story and assuring her that she was not a bad mother, I had her sign the medical authorization forms, so that I could obtain the necessary medical records from the treating physicians and the three hospitals involved in this matter. I told her that once I had secured the pertinent medical records, had reviewed them and referred them out to an appropriate medical expert, I would thereafter obtain the required opinion as to whether or not her boy received the professional medical care to which he was entitled. When this was done, I would contact her, share with her the opinion and explain her legal options. In the meantime, she was to make sure she attended every medical appointment and to follow carefully the aftercare instructions from the doctor and hospital. If any insurance representative contacted her, she was not to discuss the matter with them, other than to identify herself, but to refer them to me. I further advised her that technically, I had not yet agreed to take the case and would make that decision after all these preliminary matters were completed. She would be kept informed on all substantial matters, and if she had any questions in the interim, she was to feel free to call my office. She left our interview appearing calmer and somewhat reassured.

MEDICAL RECORDS

Requesting the proper medical records is important. The requesting attorney must have the correct name and exact spelling of the patient and the appropriate form signed by the patient, or competent adult parent, in this case. Young Peter Padrillo was listed as a Junior on his birth certificate, but because his mother didn’t like to refer to him as junior, she called him Young Peter. Additionally, the records request must specify exactly what medical records are wanted, for example, Emergency Room records, X-ray analysis records, attending physician report, nurse’s notes, drugs administered, specialist referral report and the like. Otherwise, the hospital might send only what they deem is appropriate, which may be less than legally required. Thus, my requests went out to the Medford Memorial Hospital, Everett Hospital, Dr. Murphy, and the Pilgrim General Hospital in Boston. It usually took up to a month for these records to be sent out, somewhat lesser for smaller, regional hospitals. The Pilgrim Hospital was such a large medical complex, the medical records employee only mailed out records the first of every month. And, of course, a bill for photocopying, and administrative costs were enclosed with the records that I received.

Edith Padrillo would periodically telephone me after a few weeks to ask some questions, not all of which were legal, and to inquire about what the medical records revealed. I informed her that I had received some, but not all the necessary records and would advise her when I had received what I thought was needed. She assured me that she was keeping all her son Peter’s medical appointments. She also needed reassurance that she would not go to jail if she pursued a lawsuit and whether the medical defendants might defend themselves by accusing her of being an unfit mother, resulting in the child welfare authorities taking Young Peter away from her, as some of her friends were warning her. I had to advise her that civil litigants did not go to jail for exercising their right to remedy a wrong by using the civil courts, always assuming good faith use. But even then, bad faith would not ordinarily result in jail, and surely not in her case, from what I knew. Besides, I reminded her, her concerns were premature, as no decision had been made to initiate any litigation, and she would know when it was made, as she would be part of any such decision.

I also cautioned her to trust her personal attorney to protect her and represent her and her family’s best interests, and to appreciate her friends expressions of concern, but to be wary of and not to rely on curbstone counsel, so-called, the bane of attorneys. These well meaning people were as often wrong as they were right, with the limited information they had. If they are not physicians or lawyers, I cautioned her, their credentials to render any opinion on this matter would not be fully credible.

My own mother cautioned me that suing a local physician or surgeon might make it difficult for me to get medical care when I needed it, as the medical community could be quite provincial, and might close ranks to protect themselves. I assured her that I was aware of the risks, but I believed that my experience to date with the medical profession was very positive and that I believed they would act professionally and perform up to their high standards. In the meantime, I wasn’t planning to be sick. I could not run a practice based on how popular it would be with the people I was suing. I already knew the answer to that question. No one likes to be sued and I do not start a lawsuit, unless I think it is meritorious and sufficiently worthy to succeed.

TARGETED LAWYERS

Not too many years before this case, Hollywood had produced a hilarious movie in 1966 entitled The Fortune Cookie. It featured the stereotypical ambulance chasing personal injury lawyer played to the hilt by Walter Matthau, who represented his injured brother-in-law. Lawyer Matthau was portrayed as attempting to manipulate all the angles he could think of to enhance the injury and any hoped for financial settlement that might ensue. This reinforced the popular view of the conniving, sly, untrustworthy shyster, with a satirical flourish. I liked to say the legal profession is the only profession many people love to hate. It’s a public relations problem that seems to hound the profession. Unfortunately, too many people have ambivalent feelings toward lawyers or simply don’t like them, except maybe their own, because they selected him or her, and they don’t want to besmirch their own judgment.

Without sounding like a martyr, it’s a cross we have to bear, and a matter that we have to live through and attempt to turn around. In the meantime, lawyer jokes showcasing their hyperbolic shortcomings, casting them in roles of high dudgeon and mocking absurdities seem to remain popular. At the expense of sounding paranoid, lawyers make good targets. My own friends delight in telling me the latest, usually derogatory lawyer jokes and can’t wait to tell me where lawyers stand in the latest ranking of professionals, usually near the bottom, with other nefarious and disreputable vocations. I roll with the jokes. Many, actually, are very funny.

COMPARING APPLES WITH APPLES

Another caution a lawyer must take is to make sure that the expert engaged to review the file is of the same specialty as the defendant medical care provider, for example, surgeon vs. surgeon. Even further, you don’t want to hire a general surgeon to critique a heart surgeon. The closer the fit, the better the case of a plaintiff. Litigating against a physician is a formidable task. Lawyers are cognizant of the old caveat; When you aim at a king, you better not miss. Additionally, the expert a lawyer hires to review the appropriate files must not only render an opinion in writing on the standard of care given, but he, she or some other such expert must agree to go forward and testify at a contested trial to the same opinion. Some experts, especially physicians, will give an opinion in writing, but will not want to testify at trial, if it’s a negative opinion against the physician. Some fewer physicians will agree to render an opinion, but will not put it in writing.

Obtaining an expert medical opinion has been a problem in the past, and it isn’t always easy today. In the past, Plaintiff attorneys had to go to another state or even another country to obtain a medical expert opinion against another physician. This non-local opinion was necessary to avoid local hostility against such a physician. On the other hand, there are some cynics who claim that if enough compensation is offered, an appropriate expert can be hired. They call them You pay, I say witnesses. But this cynicism ignores the fact that much of medicine is not an exact science and legitimate differences of opinions can co-exist. Besides, second medical opinions and consultations with other physician specialists are fairly common in complex cases and do not always result in unaminous opinions. There will always be critics, human nature being what it is. And this can sometimes be helpful, because critics can be right.

THE TRIBUNAL

In Massachusetts, at the time, before a lawyer could bring a medical malpractice action, he had to go before a legal Tribunal, so-called, because it was composed of a Judge, a Physician and a Lawyer. This three person tribunal would preside over a hearing in Court in which a lawyer for the plaintiff would present evidence to support his written complaint that a medical care provider was negligent in treating the plaintiff and injuring him or her.

The Plaintiff attorney would file his complaint as he would in any civil action. The case was then held in abeyance, while a Clerk referred the matter to an administrative staff for the assembly of a Tribunal to review the allegations and the supporting documents. A register of approved physicians and attorneys was consulted to select appropriate experts in the process of assembling a Tribunal. Their compensation was modest and composed of experienced professionals in their respective fields. Being accepted for such a list was considered a prestigious appointment. It was also considered to be a recognition of one’s expertise. They would try to match an attorney with a specialty in personal injury law with a physician with experience with the type of medical treatment involved, and a Judge with sufficient experience to preside over this type hearing.

The law required the plaintiff attorney to produce a medical opinion letter stating that medical negligence causing the plaintiff injury was committed by this medical care provider, to a fair degree of medical certainty. He also had to produce the medical records that the plaintiff attorney’s medical expert relied on in rendering his opinion. The proceeding was often likened to a mini-trial, though it was preliminary and not nearly as extensive as a full jury trial.

Before being enacted into law, the Tribunal had to overcome criticism that it was an improper preference for the medical profession. Such special treatment was not required in litigation against other professions, such as architects, engineers, lawyers and the like. This criticism was met by the counter-argument that the purpose of the Tribunal law was to stop what was thought to be too many frivolous law suits against the medical profession, causing them to practice defensive medicine by ordering more and expensive tests that drove the cost of medicine up, including liability insurance premiums for the medical professionals. The argument against this complaint was that there already were laws on the books that penalized plaintiffs for bringing frivolous lawsuits. Besides, there already were practical controls in that many lawyers would not bring these type lawsuits, because they were too time-consuming, and expensive to litigate. They also perceived that there was a jury bias in favor of a helping profession such as medicine and that a Plaintiff had this extra burden in attempting to prove their case. As a result, most lawyers wouldn’t handle them and innocent patients suffered without redress. The plaintiff attorney bar also argued that the medical profession was not policing their members to root out the bad practitioners and would hide in a conspiracy of silence behind a gauze curtain, so-called.

Of course, this was disputed by the medical types, who claimed that hospitals had review committees to govern medical practices and staff privileged practioners at their hospitals. Additionally, with respect to medical mistakes, once a case went into litigation, they were advised by their attorneys not to admit anything; that the burden was on the plaintiff to prove his case. This was true as far as it went, but the dispute resolution process could be a lot less costly in terms of expense, time, effort and frayed nerves, if an obviously negligent doctor admitted his miscue. After all, perfection isn’t required; excellence is enough. Even the best doctors or lawyers make mistakes, if only because they accept the toughest cases. Additionally, the doctors asserted that they policed their mistakes, internally. Others claim that physician internal controls were more theoretical than real. If the physicians had any reluctance, it was in getting emmeshed in protracted legal proceedings. The doctors also claimed that their living depended on their reputation and that even successfully defending against lawsuits could impair their careers. Some lawyers alleged that, too often, the doctors were defending their own egos and arrogance. The doctors returned the accusation as equally applicable to lawyers. The professional friction was only too evident between the two disciplines. After hearing both sides of these arguments, the legislation was passed, thereafter setting up the Tribunal system in Massachusetts.

When I eventually obtained all the necessary medical records, I engaged a medical expert, a general surgeon, similar to the one who originally treated the boy in the emergency room. He reviewed the three hospital records and his family physician’s records and rendered his professional opinion that the standard of care received by the boy was substandard. In other words, in his opinion, the treatment received by Young Peter from the original emergency room physician was negligent. At the time, there was no universally recognized specialty as an Emergency Room Physician. Many times hospitals would hire various physicians who would moonlight there for extra income. In later years Emergency Room Physician became a credentialed specialty with its own training program, as medicine became more and more sophisticated and refined.

When I received this opinion in writing, and obtained the same surgeon’s agreement to also testify at trial, I then had the medical back-up and was ready to consult with the boy’s mother, Mrs Padrillo, to be sure she would not abandon the case, but instead would see the case through to the very end, that is, to a jury trial verdict.

She was.

When interviewing her again, I mentioned to her that, as she intuited, the opposition might try to put the blame on her or her son, as being un-co-operative, though there was nothing definitive in the medical records to indicate this, except temporary difficulty with the children when their father abandoned them. Medical records don’t always include everything of medical or legal significance that may have happened, though one would hope that it would. By this I mean that the fact that something is not in the medical records doesn’t mean it didn’t happen. Sometimes what is medically or legally significant can only be determined after an incident. Admittedly few, but there have been cases proven in court where medical records have been changed or doctored by medical personnel, known or unknown. By that is meant that some after-the-fact erasures have been detected by experts or, less frequently, some post-incident additions have been entered to alter the records.

I also mentioned to Mrs Padrillo that they would surely investigate her background and try to develop information that would attempt to put her in an unfavorable light. She became somewhat indignant and defiantly said, Let them try. I’m doing the best I can. From my perspective, she had done better than that. She also added some additional information. She was still miffed, she said, because the original treating emergency room doctor ordered her out of the room because she, Mrs Padrillo, was so upset, while her boy was in pain and crying. As she was leaving, she heard the doctor tell the nurse, who was a heavy, black woman, of Cape Verdean descent, to sit on her son, to steady the boy, as he sewed up his hand with numerous stitches, sealing in the huge piece of glass. No x-ray of the hand was ordered by the doctor before suturing the hand closed. Not all glass will show up on an x-ray, but we later discovered that this colored glass would have so appeared.

In any event, I now had what I needed to proceed with drafting the Complaint. I decided to name as defendants, the treating physician, individually, as well as his corporation, the attending nurse, and the original hospital. This totaled four defendants.

HEARING

Within six months of my filing of the written complaint, a hearing was scheduled for a date certain by the Clerk of Court. I appeared at the specified time, ready to argue my case to the three person panel. The hearing was scheduled at the end of the normal Civil Motion Session, which handled ordinary pre-trial issues that needed a judge’s ruling to resolve. These relatively simple matters could be ordinarily disposed of from within five to twenty minutes. Written matters were submitted to the court and the opposing lawyers supplemented them with oral arguments to the Judge. A typical Medical Malpractice Tribunal Hearing, however, would typically take much longer, as long as the tribunal members thought necessary. Nevertheless, they generally took up to an hour or so.

I appeared at the session and was approached by opposing counsel, who introduced himself. Up to that moment, I didn’t know for sure who the opposing lawyer would be. I was aware of the law firms that filed answers to my complaint in court within the required specified time, but not the name of the individual lawyers within the firms, who would actually defend the case. Since I was a sole practitioner, the opposing law firms for the defendant medical providers knew my name from the beginning. Attorney James Brownell introduced himself. He was a tall, handsome, well dressed attorney, experienced, and a specialist in handling these type cases. All four defendants had filed timely appearances by law firms. Although I was a personal injury attorney, I did not specialize in trying medical malpractice cases. Few lawyers did. This fact meant that this type case would require more research and diligence on my part, than an attorney who was quite familiar with the trial of these type cases.

Tangentially, one can only wonder how many worthy cases are not litigated, because it is projected by lawyers to be too expensive to prosecute, too narrow or burdensome a specialty, or because although there was probable and provable medical negligence, the injuries sustained were not severe enough to obtain a sufficient damage award to pay for the considerable cost to prosecute the cases. On the other hand, from the medical care provider’s valid point of view, a bad medical result doesn’t automatically mean bad medicine. Unfortunately, however, on very rare occasions, something entered into the medical record was not actually done or followed up on. Nothing is sacrosanct and important details should be verified and confirmed. Naturally, it goes without saying, fact checking applies to both the legal and medical professions.

Most of the doctors and other medical care providers, including nurses and hospital personnel were insured by a Joint Underwriting Association (JUA), composed of a pool of Insurance Companies. They had their own staff of attorneys, as well as outside attorneys hired to handle the trial of these cases. They were not salaried employees of the JUA, but independent attorneys in private practice, who frequently handled complex medical trials, and were paid by contract on an hourly basis. Their cost was much more than the staff attorneys because they generally had more experience and were trial specialists. Besides, it was considered to be a more stressful job than that of an office attorney.

It is understandable that many people do not like courtrooms. It’s an adversarial atmosphere, with formal proceedings that are foreign to them. Doctors especially are not accustomed to having their decisions or behavior questioned by non-physcians, though they must know that the lawyers have physicians advising them, as to standards of medical care, medical practices and pertinent questions to ask. Still many doctors resent the lack of deference and respect they are accustomed to in their regular universe, and absent too often in a courtroom. Perhaps, only at home does a spouse fully realize the pressures felt by their physician-spouse, as they toss and turn in their sleep over their highly stressed careers. This would be equally true of lawyer’s spouses who see their attorney-spouses putting on that bedstand light at three o’clock in the morning to write something down on a case with which they are wrestling. Even a perceived condescending voice from a lawyer to a doctor, or vice versa, can trigger their respective indignations. Doctors are naturally more comfortable in their offices and hospitals. Only the supremely confident doctor can feel comfortable in a courtroom witness chair. And even then he or she hazards the chance that his or her demeanor might be interpreted as a posture of arrogance, the death knell of the effectiveness of any testimony. Both fields have egos easily bruised, even if their egos have been earned and deserved, and necessary to be proficient in their respective professions. That being said, it would probably be the better part of wisdom to avoid inviting surgeons and trial lawyers to the same party for the same reason that oil and water don’t mix, at least insofar as my limited experience can tell.

In any event, Attorney Brownell proceeded to ask me for a copy of my file, and most important of all, the opinion letter of the medical expert of the plaintiff, asserting that the defendants were negligent in treating the boy. Even more important, Attorney Brownell was interested in and focusing on the reasons that Plaintiff’s medical expert based his critical opinion. If Attorney Brownell can convince the Medical Tribunal that the basis for the opinion is flawed, defective or unpersuasive, then he can hope to obtain a majority judgment of the tribunal that plaintiff has not met its statutory burden of proof. If such is the result, the case cannot continue without the plaintiff posting a bond that would pay all the legal costs of a defendant doctor who later wins a jury verdict at the conclusion of trial. I, as plaintiff attorney, do not want this result at the tribunal level, because it would add to the already high cost of prosecuting this expensive litigation. Not the least of which, of course, would be the professional fee of our expert doctor, never mind the additional cost of the defendant’s legal costs, including the expense of their medical expert witness or witnesses.

In other type cases, like divorce cases, some of the litigants would be so bitter or emotional, that they only wanted to extract their pound of flesh, so-called, and would insist on prolonging the trial process, in order to attempt to inflict the maximum amount of distress on the opposing party. It was this type of take-no-prisoners attitude that took up and wasted the court’s time, and which spawned the no fault concept. The purpose of no-fault laws was to take the pointed finger out of divorce cases, as well as the necessity to prove fault, in the ubiquitous, minor, fender bender automobile accident cases. Apparently, medical negligence cases are too serious to similarly cut back on the formalities or to shorten the remedial process, at least to this day.

Thus, to alleviate the strain in medical dispute litigation, one would think that it would be logical to make arbitration, mediation, conciliation or other dispute resolution process, short of a full jury trial, attractive to both litigants. But to be logical, is not always to be reasonable. Some professionals are so infuriated to be the object of a lawsuit, that they are, at least initially, determined to fight the case to the bitter end. They will not compromise or even discuss a possible settlement. In fact, in the standard insurance policy of my time, protecting the doctors against liability for their professional medical practice, the doctor had to specifically approve any settlement in writing. The doctors felt it was necessary to protect their reputations. They also oftentimes insisted that the settlement amount be kept confidential, and the settlement papers must specifically state that the settlement agreement is not an admission of liability on the doctor’s part, but was agreed to in order to spare each party the high cost of extended litigation.

In any event, under the applicable law, I had to hand over to the doctor’s defense attorney a copy of my file just before the tribunal convenes. I interpreted this to literally mean when the tribunal was walking to the bench and just before they sat down. This would give opposing counsel less time to review the opinion letter, as I rose to make my presentation. Opposing counsel contested this literal, last minute interpretation and filed litigation for a Declaratory Judgment to contest this practice and to obtain a judgment mandating an earlier turn over of the required opinion letter. However, it hadn’t been scheduled for a hearing yet. Nevertheless, I took pity on opposing counsel and handed him a copy of my file before the tribunal came out, hoping it would increase the chance of a possible settlement down the line.

I also hoped it would not make me vulnerable to a legal malpractice claim that I helped the opposition in any way against my own client. Of course, if I prevailed before the tribunal, this possibility would disappear, because my client would not have been hurt by my action. As remote and miniscule as this little matter may seem to one outside the legal community, it has to be considered by a lawyer. I had personal knowledge of a case where a lawyer finished trying a case that so impressed his client, that he stated to him after trial that his performance on his behalf was outstanding and that he couldn’t have been more pleased. However, when the jury came back and rendered a verdict against this very satisfied client, he immediately sued the lawyer for legal malpractice. A lawyer never knows when a client will turn against him. A lawyer always has to protect himself against a legal malpractice action. In criminal matters, as opposed to civil actions, a prisoner sitting in his cell frequently decides that he was convicted by incompetence of trial counsel, and files an appeal on that basis. Thus, lawyers also have to document their actions.

Getting back to our case, the clerk called the case and assured himself that both counsel were present. Thereafter, when the panel walked in and the case was called, the judge directed me to state my case. I introduced myself and proceeded to orally recite my representations initially made in the written complaint in a somewhat more summary form. I had to present the pertinent facts that support my allegations of medical negligence and formally offer the Opinion Letter of my expert general surgeon, his qualifications and his conclusion. The panel was then free to ask me any questions they thought would aid their decision. For example, I was asked by the physician on the panel if the defendant physician was also a general surgeon. I answered that he was indeed. The lawyer asked if there was the required doctor-patient relationship between the plaintiff and the defendant. I responded that there was, because the boy-patient was accepted for treatment in the hospital emergency room, was accompanied and signed in by his mother, resulting medical records confirm it, and bills as the result of the treatment were sent to the parent. The judge asked me if the mother signed the necessary documents at the hospital to consent to and authorize the defendant doctor to treat her son, the minor-aged patient. I mentioned that the doctor and the hospital admitted in their answer to my complaint that appropriate consents were given and informed authorizations granted.

They judge additionally asked me what my theory of liability was against the doctor, hospital, nurse and medical corporation. I answered, negligence. The doctor asked me why I thought the doctor was negligent. I mentioned that my expert surgeon found that the treatment given the boy was substandard. The doctor had a duty to provide standard care. However, the treatment rendered was below the standard of care required, in that the piece of glass was described as huge in the operative report of the surgeon who ultimately excised the glass. In addition, the glass was sealed in the small hand of a six year old boy, and covered a large portion of his hand. Further, the facts of the accidental fall in a gutter could reasonably lead a physician, especially a surgeon, to rule out the possibility that broken glass might be among the debris in a street gutter where the boy fell. Also, the extreme pain the boy was in should have alerted the doctor of this possibility, and that at his age the boy spent up to twenty percent of his life in unnecessary pain. Additionally, I argued that it was difficult to understand why the doctor, while examining the hand with his specially trained eyes and medical instruments available to him at the hospital, didn’t see, feel, intuit or otherwise discover the embedded piece of glass after focused probing. Finally, although not all glass will show up on an x-ray, this particular dark green, colored glass would have. But the doctor did not order an x-ray. Other technical questions were asked of me, but the aforementioned should give you an idea of the scope of the questions posed by the panel members.

JUA ATTORNEY GRILLED

Attorney Brownell then rose to contest the case and the opinion of Plaintiff’s expert physician. He began by questioning whether there was a doctor-patient relationship between the boy and the defendant doctor within the meaning of the law governing the tribunal. He argued that the meeting of the boy and the doctor was just a coincidence in that the doctor just happened to be on duty when the boy arrived in the Emergency Room. Additionally, there was no follow-up treatment by this doctor with this boy in the doctors private office and that he was billed for such services as rendered through and by the hospital and not the doctor, individually.

Counselor, responded the judge, whether that’s an effective point of law or not, that’s a legal argument to be presented to the Trial Judge, and not needed to be considered by this tribunal for our limited purposes. What’s your next issue?

Without waiving that particular issue, Your Honor, he replied, I now contend that the patient was uncooperative, a problem child and had an interfering mother, harassing the doctor in his attempts to treat the patient. He thus contributed to and caused his own injury and thus assumed its risk. Additionally, the nurse and the doctor were not fully informed of the circumstances of the accident, and were thereby mislead from conducting a different type of examination.

The tribunal lawyer responded that those issues are questions of fact to be decided by the jury at trial, and not by this tribunal.

Attorney Brownnell proceeded to argue that this treatment was not surgery, the Emergency Room is not an operative theatre, that an x-ray was not indicated in this instance, and that besides, too many x-rays can over expose a patient to radiation burn injuries.

At this point, the tribunal doctor interjected: Counselor, with all due respect, isn’t the time for concerning ourselves with accumulated radiation overexposure injuries at a later time, in a much older patient than a six year old boy? Do you know for a fact that this boy has had any or many x-rays before?

"No I don’t, doctor, but my client, Dr. Grusinger, in an excess of concern, didn’t want to overexpose any patient,