For this month’s Brushstroke, I’ll be talking about the so-called “train-wreck client defense.” Basically, that concept seeks to derail the idea that you have to be perfectly healthy in order to have truly been the victim of medical malpractice and get justice. Read on for tips on fighting this idea.

A Theme for Voir Dire

In America, we don’t reserve justice for people who are in the prime of their lives or who are perfect physical specimens. People who have wear and tear on them and physical ailments can get justice too. We call it “equal justice,” or “justice for all.” It means the infirm and the elderly, the special needs child and the disabled vet, the grandparents, and the premature child can get justice just like the captain of the football team. Everyone knows what “as is” means. We buy things off the used rack “as is.” That’s the way justice works in our country. If a doctor doesn’t do his or her job right and hurts someone, we don’t say, that’s okay, because the person was already not in great health. Does everyone understand that concept of “as-is justice?” How do you feel about that?

Opening

Near the end of opening, go back to that theme and say: When we get to the evidence, you will see this is not a case where the defendants were caught off-guard by my client’s health problems and vulnerabilities. The evidence will show they knew full well that his conditions required they pay special attention to detail. They agreed to accept him “as is.” The evidence will show they were called in because they were specialist trained to deal with complex patients.

They were trained to do the job of caring for someone with special needs: they knew how to do the job; they agreed to do the job; they were paid to do the job; they knew the job required them to pay close attention; they knew they had to do all of the job, not just part of the job; they knew they had to finish the job that they started; they knew there was no room for leaving loose ends. It will be clear from the evidence that they knew all of this when they accepted Mr. X as their patient — they agreed to the terms of caring for him under those circumstances, “as is”! As we discussed, the evidence will show they failed to do this job right.

Then, the evidence will show, when they failed to live up to those duties and responsibilities, their defense is, in large part, Mr. X was really sick and had a lot of problems. As you work through the evidence in this case, and their defenses, ask yourself, does that square with “as is” justice? Does Mr. X deserve any less care, because of his conditions, or do those conditions provide further proof that these defendants failed to give him the level of care and close attention required by the circumstances. You will see this was a situation where there was no margin for error; no room to skips essential steps. You will see that is exactly what these defendants did, they skipped essential steps in the care this man needed. You will see, had they done all of the steps, Mr. X would have made it through his time of need. We are here seeking justice for Mr. X “as is.”

Bonus Ideas

Here are some additional approaches to the train-wreck defense.

A. Under these circumstances, reasonable care required more not less. It was no surprise to these doctors that they could not afford to give less than the best they had to offer; they knew that when they agreed to take the case. We are here because they gave him less, when they knew less would not be acceptable, not under these circumstances.

They did not take the case as an act of charity. They were being paid to do a job that called for specialists who would pay attention and follow through. They accepted all of that job, not just part of it. They were trained to do all of that job. They were paid to do all of that job. Then, when it was time to do their job, they did less than all of it and it cost Mr. X (nearly) everything.

He could not afford less and they knew it. They knew it and they blew it, now they say, “Don’t look at me, he was a tough case to begin with!” My response to that is, “exactly!” He was a tough case and you knew it, yet you gave him less than your best (and the rest is history).

B. Now that they didn’t do an important part of their jobs, they want to make it seem as if Mr. X was a lost cause. Well, he was not lost, he found his way into the hands of specialists who were trained and equipped to navigate their way through rough waters — doctors who agreed to do the job of navigating; who were paid to do the job of navigation; and who knew how to do the job of navigating. It is the doctors who got lost. It was the doctors who forgot to follow the safe course. It was the doctors who veered off the course they, themselves, charted. They lost the way to safety, leaving Mr. X stranded on the rocks. He was no lost cause; they lost their way and he suffered the consequences.