At Home, But Not Alone Brushstrokes #33

There is a saying, “the facts are the facts.” There is another saying, “not so fast.”  Facts are the beginning of the process, not the end. The same facts can lead to opposite  conclusions based upon the addition of other facts. We achieve the right conclusion by  creating the right framework to display the facts. We build the proper framework from surrounding circumstances.  

There are two main risk factors for juries reaching wrong conclusions: bias and  taking things out of context (leaving out key facts or over-focusing on certain facts to the  exclusion of others). Voir dire is the place we primarily deal with bias. The rest fits under  the broad category of “circumstances”. We must create a framework, based on “all” the  circumstances, which leads to right conclusions and avoids wrong conclusions based on a  piecemeal presentation of facts taken out of context.  

Here is an example of how adding in missing facts to surrounding circumstances  changes everything. It was a med mal case I tried last week. Our client had just undergone surgery for rectal cancer and had a colostomy bag placed. During the procedure our  client’s urethra was nicked. As a result, the doctor put an order in the hospital chart for  nurses not to remove the urine catheter. He wanted it to stay in for three to four weeks to  let the area heal, after which he fully expected our client to be free of the catheter and able  to urinate naturally. A nurse missed the order and pulled the catheter out five days later.  As a result, they had to surgically place a catheter directly into his bladder and run a tube  out of his stomach. It was unlikely that catheter would ever be removed. The case was over  premature removal of the temporary catheter and the need for a surgically placed  permanent catheter. 

Our client’s rectal cancer came back and he died before we could get his case to  trial. The cancer was not part of the negligence, so there was no case for wrongful death.  We had to proceed on a survival action. The wife stepped into her husband’s shoes to finish  the case. It was a pure pain and suffering case for the decedent’s suffering before his death.  The relevant time period of injury was nineteen months from surgical placement of the  permanent catheter until death. The main dispute at trial was the extent of problems the  catheter was causing, as opposed to other burdens in our client’s life during those nineteen  months coming from cancer, chemo and the colostomy bag. Those other problems where  not caused by the negligence. 

Our client testified in his video depo, taken shortly before his death, about problems  he was having with the permanent catheter, including leakage, spasms, or bleeding. His  wife testified live about those problems. The defense downplayed the extent of problems based on the sparsity of medical records documenting complaints about the catheter.  During the relevant nineteen-month time period there were a lot of doctor visits, but very  little mention of catheter problems. The defense argued, if there were persistent, life altering problems with the catheter, they would have been all over the records. In a  vacuum, that argument was persuasive. It was the central point of their cross of his wife.  

We dealt with the bias against survival actions in voir dire. The reason for this  brushstroke is to show you how other facts and circumstances can change conclusions from  wrong to right.  

On cross-examination of the defense expert, I got him to admit complications like  our client was describing, such as bleeding and spasms, were very common. He tried to  deny the “very” part and was impeached because those were his words in deposition. He 

was more compliant after that moment of truth. I was able to get him to admit he would  expect treating doctors to reassure their patient that these complications were to be  expected, which fit our client’s testimony about their frustration that the problems were  not being taken as seriously as they would have liked. I then got their expert to admit that  he would not expect the patient to keep complaining about problems in subsequent visits  after the doctor told them it was very common. These concessions delivered a big blow to  the false framing defense was relying on that few entries in medical records equals few  problems. The jury now had context. They had another explanation for why the records  were so sparse, a better one than our clients were exaggerating.  

The next facts added to the circumstances came from the medical records  themselves. In the few records that documented complaints, some included words like “still  having”, which meant earlier complaints had been made, but were not documented. This  allowed us to show complaints were not consistently documented, which made sense in light  of the “very common” testimony we extracted during trial. 

Then, I pointed out in closing a key piece of testimony from a deposition read to the  jury of one of the treating doctors who made no entry at all of catheter problems. When  asked if he recalled the plaintiff complaining about problems with the catheter, he  responded that he didn’t remember “whether or not he complained”. This answer was  particularly important because the depo made it clear the doctor had the records in front  of him while answering. He did not say, if he had complained I would have documented it.  His answer showed it was just as likely that complaints were made and not documented. In  effect, the author was disagreeing with the defense premise that no entries meant no  complaints. 

Finally, I pointed out in rebuttal closing there was a reasonable inference that  doctors might not want to vividly document the extent of problems caused by a catheter  that had to be placed as a result of malpractice. The doctors where not defendants, but  worked in the community and had privileges at the defendant hospital.  

Once all this context was provided, the fact that there was very little in the way of  documentation as to the problems was no longer a problem. The result was a just verdict.  Placing the facts in proper context also made all the difference as to the amount of  the verdict, which was much, much greater than the paltry amount suggested by the  defense. The defense tried to lay all of the suffering off on cancer, chemo and the colostomy  bag. We used a powerful combination of those three key frameworks I have repeatedly discussed: “As is justice” (you don’t have to be a perfect specimen of health to get full  justice); “Baselines, Reserves, and Coping” (by refocusing jurors’ perspective on his lower  baseline and diminished reserves, it became clear his ability to cope with additional  burdens was likewise depleted, the remainder of his quality of life was more valuable, not  less); “All time is not equal” (when time is in short supply, it is precious, every moment  matters).