Saving Your Malpractice Case
The Fact Pattern
A 62-year-old male, Mr. Block, was in good health and had been a patient of Doctor Byrnes for many years. The patient had a history of rectal polyps which were removed in the operating room on several different occasions. The polyps continuously recurred despite adequate resection by Doctor Byrnes. The patient was compliant in every way and had a good relationship with Doctor Byrnes.
During a routine yearly visit, Doctor Byrnes found another rectal polyp. It looked suspicious and worrisome for a possible malignancy. Doctor Byrnes felt that a wider, more extensive local resection would be necessary. He told this to the patient, and the patient understood and agreed. Doctor Byrnes told Mr. Block that he (Doctor Byrnes) was now referring his operative patients to his younger associate, Doctor Madding. Doctor Madding examined Mr. Block. Doctor Madding concurred with the diagnosis and the proposed treatment plan. He established a rapport with the patient, explained the treatment plan and discussed potential complications with Mr. Block. In fact, Doctor Madding met twice with Mr. Block and did his best to explain the upcoming operation and tried to put Mr. Block at ease.
The operation to remove the polyp took place and went well. Mr. Block recovered and was discharged home.
On his first few postoperative visits, Mr. Block had no complaints. His first negative statement to his surgeon came approximately 3 months after his operation. He stated that he had been experiencing mild rectal leakage. He said that he could “live with it”. Doctor Madding noted the complaint.
Mr. Block then missed the remainder of his scheduled visits.
Doctor Madding was served with a lawsuit. The complaint stated that Doctor Madding had not given a correct informed consent and had “rushed” Mr. Block into the operation; an operation which caused Mr. Block to now wear a diaper. This fact had never been noted by Doctor Madding in Mr. Block’s chart.
Discovery (but not enough discovery)
During depositions, Mr. Block was calm and stated his case clearly. Doctor Madding did the same and it appeared that plaintiff’s counsel had a good chance to prevail. Doctor Twiling, a young surgeon with less than impeccable credentials, served as the plaintiff’s expert and was highly critical of Doctor Madding and his preoperative informed consent and of Doctor Madding’ssurgical technique; all of this despite the fact that an informed consent had been given on two separate occasions and that Doctor Madding was known to be a meticulous and skilled surgeon.
Doctor Madding’s expert was a highly respected academic surgeon and was quite supportive of Doctor Madding’s entire care of Mr. Block.
The Trial
At trial, all testimony went as expected. All parties were courteous and answered all questions with a calm demeanor. At one point, Mr. Block’s attorney engaged in an exchange with Doctor Madding that appeared repetitive and overtly aggressive. Doctor Madding became openly angry at Mr. Block’s attorney, addressing him by his first name and telling him that he (the attorney) was becoming demeaning. He told the attorney to stop this “ridiculous and insulting” line of questioning. The attorney did stop the attack.
Then the plaintiff’s expert, when questioned by the defense, became almost complimentary to Doctor Madding and his care of Mr. Block. His prior deposition testimony had been much harsher than his trial criticisms.
Although the plaintiff’s attorney thought that he had secured a verdict in favor of his client, the actual verdict returned in favor of Doctor Madding.
Lessons Learned
What went wrong and what can a plaintiff’s attorney learn from this case?
Although not known at the time that Mr. Block’s lawyer accepted the case, Mr. Block’s son had committed suicide around the time when Mr. Block stopped seeing Doctor Madding. Mr. Block was seething with anger and pain that should have been known to his attorney. His anger focused on Doctor Madding instead of his son and his own pain.
While not an overt error, this bit of social history collided with something that made the plaintiff’s pursuit of this case much more difficult. The plaintiff’s attorney did not obtain a “second opinion” from another expert regarding his own expert witness and his deposition testimony. Granted this might have been tedious to do, and even expensive, but it would have saved money and time invested by the attorney. As it turned out, and as was known to the defense, the plaintiff’s expert had grossly exaggerated the truth regarding critical medical and surgical points and had overstated his criticisms and his recommendations as to how Mr. Block’s surgical plan and treatment should have proceeded. The plaintiff’s expert was effectively neutralized by the defense academic surgeon who had prepared a cogent and easy to understand dismantling of the plaintiff’s expert testimony and criticisms.
To make matters worse, Doctor Madding felt that the jury seemed sympathetic to his version of events (to say nothing of the record in his chart). When the plaintiff’s attorney became testy, Dr. Madding felt that he could afford to become angry both to force the attorney to calm down and to gain further sympathy from the jury; a fact later confirmed by the jury in the hallway after the case had concluded. Referring to Doctor Madding, one juror said: “I wish Doctor Madding was my doctor.”
Finally, the plaintiff’s attorney was unable to elicit a plausible reason as to why his client’s first mention of wearing a diaper appeared in the legal complaint.
Attention to Detail
Attention to detail saved the day for Doctor Madding and effectively lost the case for Mr. Block. Had the plaintiff’s attorney dug a bit deeper into the strange timing of Mr. Block’s changing of doctors and had the attorney bothered to fact check his own expert, he might have discovered early on that he did not really have an airtight case. The plaintiff’s attorney also erred in thinking that Doctor Madding could be treated with something less than professional respect. He had not anticipated the very human and understandable response by Doctor Madding; a response that resonated with the hearts of the jury
Attention to detail is worth the extra effort. The plaintiff’s attorney was guilty of having a lack of insight into his client’s motivation, a public disrespect for the defendant (possibly borne out of hubris), and, for whatever reason, blindly trusted his expert (who may have testified as he did, for all of the wrong reasons;money, professional jealousy, a youthful lack of surgical experience, or a combination of all of the aforementioned reasons).
“A stitch in time may save nine” (spend the extra time to adequately develop your case). Or perhaps, “penny wise, dollar foolish” (spend the extra money to get skilled, high-quality experts). Or “pride goeth before a fall” (be humble and self-effacing. The case you save may be your own).
The expert who prepared this Sample case summary is an expert in Colon And Rectal Surgery and has expertise in hemorrhoids, fissures, fistulas, PPH, robot, robotics, colon cancer, rectal cancer, anal cancer, diverticulitis, colitis, Crohn’s disease, laparoscopic surgery, hernia, gallbladder, cholecystitis, appendicitis, lipoma, intestinal obstruction, colonoscopy, polypectomy, fecal transplant, FMT, THD, mesh (infections, failures etc.), obstetric trauma.
