This month’s Brushstroke focuses on a strategy that deals with cases where there is a battle over whether something that should have been done was left undone. This includes circumstances such as, the medical professional didn’t do a biopsy, didn’t do a stress test, didn’t do a C-section, didn’t give TPA in a stroke case, etc. By the time the defense is done with it, there is a good chance the jury will feel it is not clear-cut whether the thing should have been done in the first place. Such uncertainty usually works against us, since people want clarity before branding a doctor a malpracticer.  

The answer is to provide an alternative middle ground: At the very least he should have told the patient of this option and let her decide. You do not have to abandon the “It should have been done position” to add in this safeguard. The argument: He should have done it, but at the very least he should have told the patient it was an available option that could provide hope.

I believe in the path of least resistance

And this is surely it. All jurors want to be informed by their doctors. No one wants to have choices taken away. No one wants to be kept in the dark when it comes to life and death decisions. This phrase captures that sentiment: Fundamentals of reasonable care require that the patient be kept in the loop, not in the dark.

The strategy must start at your expert’s deposition where he lists as one of his standard of care opinions: While the doctor is required to do “X,” at the very least, he or she is required to tell the patient about it. They must explain the risks and benefits, then let the patient decide. They should recommend it, but cannot omit it.

Interviewing mock and real jurors, I have learned that even the bad ones who don’t think the test or treatment was required, will agree the patient should have been given the option. Don’t let the defense get away with framing the case as if it was exclusively the doctor’s decision. If you do, their subjective decision is a tough battle to win. It is much easier to win the battle over whether the patient should have had the final say, after being informed.  

Then, have your client ready to testify in depo that he or she would have jumped at it, if they knew how bad things would have been and that the diagnosis and/or treatment would have given them hope of a better outcome.  At trial, if the judge blocks this as speculative, the jury will hear the question and know what the answer would have been: Who wouldn’t choose hope over hopelessness? If the judge does block it, use the followup Q & A: Would you have considered that information important in making your decision as to what testing and treatment you would have asked for? This question is based on the law of materiality.  

You do not have to turn your case into an informed consent case to include a component of provided information and choices to the patient. It is the path of least resistance. Why not include that route in the road map you lay out for victory?