Why We Go To Trial
We go to trial because we represent people who are harmed by professionals. When professionals act or failure to act cause harm it is the American way to seek redress in the civil justice arena. The eye-for-an-eye and tooth-for-a-tooth era of days gone by are no longer acceptable in today's society. The only remedy is money. We make no apology for seeking money to redress the harms visited upon our clients by professionals who fail to do their job.
The Case We Lost
The case concerns a young woman who goes to the emergency room with worsening abdominal pain. A CT is done and the report shows worrisome signs of stercoral ulcerations or stercoral colitis. Each of these conditions can result in perforation of the bowel with a 60% chance of death. The doctor who was treating the patient did not know what either term meant and did not call the radiologist who stated these terms in the report. The doctor simply treated our client as if she had simple constipation and sent her home. Our client's bowel perforated within 19 hours or being sent home.
What We Had To Prove
In every medical malpractice case we must prove fault and cause. The plaintiff must prove that the doctor deviated or violated the standard of care meaning he is at fault. The plaintiff then must prove that the fault or the deviation or the violation of the standard of care caused the harm. Because the defendant doctor in this case was an emergency room doctor we also had to prove that his violation of the standard of care by "clear snd convincing evidence." Clear and convincing evidence is that which is greater than a mere preponderance or more likely than not, but something less than beyond a reasonable doubt.
The jury instruction on "Fault" reads:
Fault means any wrongful act or failure to act. The wrongful act or failure to act alleged in this case is "medical negligence" or "medical malpractice." They mean the same thing.
The jury instruction on "Cause" reads:
"Cause" means that:
(1) Dr. X's acts or failures to act produced the harm directly or set in motion events that produced the harm in a natural and continuous sequence; and
(2) Dr. X's acts or failures to act could be foreseen by a reasonable person to produce a harm of the same general nature.
The Jury's Verdict
The jury found that the doctor violated the standard of care by clear and convincing evidence. The jury then found that the doctor did not cause the harm to our client despite the violation of the standard of care.
My Take On the Case
Juries more often than not, get it right but sometimes they get it wrong. As a trial attorney I normally understand why we lose and why we win. In this case I am at a loss as to why the jury found that the deviation in the standard of care here did not result in harm. All I can fathom is that they believed that the bowel perforation was inevitable and even if the doctor had admitted our client the outcome would have been the same. Of course this does not account for the fact that our client was sent home from the emergency room with a pending abdominal catastrophe (bowel perforation) and this seemed to be OK with the jury.
A fellow trial lawyer recently wrote:
For many years I've had a front row seat to the process of trial by jury, either as a participant, advisor or simply someone who cares about the outcome. Through it all - the glorious victories and heartbreaking travesties - the one constant is courage. It's a courage that comes from caring more about doing what's right than what‘s easy. Risk-free is easy; it's less work and sure as heck less scary. Outsiders have no idea of the weight we carry on our shoulders or the wounds inflicted on our souls from being on the front line of the battle for Justice in America. As my wife says when I'm in need of sleep or healing, “If not you, who?” I want to pass on those words of wisdom, “If not you, who?” I salute each of you and your families who stand with you. I deeply respect your bravery. You are all heroes to me and I love you for it.
I could not agree more as I quote Theodore Roosevelt:
Far better it is to dare mighty things, to win glorious triumphs, even though checkered by failure, than to take rank with those poor spirits who neither enjoy much nor suffer much, because they live in the gray twilight that knows not victory or defeat.