This is a follow-up to my last Brushstroke about the med mal case I tried two weeks ago. Before we reached trial, our client died from cancer unrelated to the medical negligence. Our client’s wife stepped into his shoes to finish the case in his honor, and at his request. It was a survival action for her husband’s pain and suffering before he died, not a wrongful death case. The injury was a permanent urine catheter that had to be surgically placed due to nursing negligence that occurred while our client was in the first few days of recovering from rectal cancer surgery. The relevant period of pain and suffering was from the date of negligence (when the suprapubic catheter was placed) to the date of death. That period was 19 months. During that same 19 months her husband was battling cancer, was on chemo for most of the time and had a colostomy bag that had been placed during the rectal cancer surgery. None of those struggles were caused by the negligence.
One of the big challenges we faced was to help the jury see that all of these other burdens in his life did not subtract from his suffering caused by the catheter, they compounded it. We were successful in large part because of the effectiveness of three important damage frameworks I previously developed and have written about: “As is justice”, “Baselines, Reserves, and Coping” and “All time is not equal.” The first two work in most injury cases. The third one is for elderly clients or those with shortened life expectancies. I wanted to share how they worked together in this case because the same model will work in so many of your cases.
I started the fairness process in voir dire and opening. What follows is a summary of how I brought this powerful trilogy together in closing.
Remember we talked about” as is justice”. That someone doesn’t have to be a perfect specimen of health to get justice. Someone can have wear and tear or illness, even terrible
illness, and the can still get justice. They can still get full justice, not discount justice. It’s like buying things used, they don’t get return because they aren’t in mint condition. They are taken “as is”. It’s the same with people hurt by malpractice. They too can get full justice, even though they aren’t in good health. In our Constitution we call that “Justice for all” or “Equal justice”. Whatever you call it, Mr. Smith qualifies for the protections of those laws.
Remember we talked about” baselines, reserves and coping”. When someone is in good health, they have a lot of reserves to help them cope with lose. When someone’s baseline has been lowered by illness, their reserves are already depleted, which means their ability to cope with more loss is less. If Mr. Smith had been in good health, the catheter would have still had a big impact, but he would have been in a better position to adjust and cope. But those aren’t the facts of this case. Mr. Smith was already dealing with cancer, chemo and a colostomy bag. Adding a catheter did not create an addition problem, it created a multiplication problem. It’s like the difference between someone who has two good eyes losing sight in one eye, and someone who only has sight in one eye suddenly losing sight in the good eye too. It’s not just another eye.
Remember, we talked about “all time is not equal”. When people are young they don’t value time the way people do when they are at the other end of the spectrum. Young people often want time to pass quickly, they want to be grownups. When time is running out every moment matters. Anything of value increased in value when there is less of it. There is not much that is more valuable than a person’s time earth. That’s why death bed scenes in movies are so touching, because of the ultimate scarcity of time. That’s why when someone who doesn’t have much time left says they’re sorry from the heart. They know there may not be time later to make amends. That’s why people who are elderly hug differently and say I love you like it was a vow, they know those moments of tenderness are coming to an end. That’s why conversations on a couch about nothing seem profound when time is running out, because it could be the last one. Those nineteen months we are here assessing, were Mr. Smith’s last months. We simply have to factor that reality in when considering the value of what was taken from the precious quality of life he had left in his final days.