Posts
May 9, 2005
I am in New York Supreme Court. Today, we have our last witness on the stand, and then we will meet with the Judge to review the instructions he will give to the Jury and the questions that they will answer to decide our case.
My client is a Hispanic woman living in Northern Manhattan. She is diabetic and years ago had a stroke which caused her to have difficulty feeling things on the right side of her body.
On May 10, 2000 she went to her private doctor complaining about her right foot. The doctor was trained as a Pediatrician, but he treated adults as well. He diagnosed a condition called “Cellulitis” which is basically a skin infection. The foot was red and swollen, but he wrote in his chart that there were good pulses, meaning that the circulation of blood was not a problem. The doctor prescribed oral antibiotics and told her to return in 48 hours. Two days later, the lady returned to the office. The doctor’s notes indicate that the foot is tender and swollen, but he tells her to go to the hospital for intravenous antibiotics. His diagnosis is still cellulitis and he mentions specifically in his note that there is no fever or gangrene.
At the hospital, a careful examination revealed a puncture wound which the defendant had not noted, and a splinter of glass was found to be causing a severe infection. The plaintiff had not realized she stepped on glass because she could not feel on that foot. The doctors performed a forefoot amputation.
I represent the plaintiff in the capacity of Trial Counsel to the attorney of record[1]. This is a difficult case. Diabetic patients are extremely vulnerable to infections. They usually have poor circulation to their legs or feet. Poor healing is therefore a common problem, and injuries and infections or sores which do not heal because of decreased blood flow often lead to amputations of toes, portions of a foot, or worse. In fact, the defense expert testified yesterday that the two day delay in this case essentially made no difference because the patient would have needed the amputation even with an earlier diagnosis.
The main reason I accepted the case for trial is because of a very defensive office note written not by the doctor, but by his wife, who worked in the office as office manager. The note appeared to me to be completely superfluous, not a medical record at all, written in a self-exculpating manner which in my opinion revealed a consciousness of fault.
On direct examination, she tells the jury that after being born in this country, her parents moved to Santo Domingo when she was 15 years old. She obtained both a Bachelor’s degree and a Master’s degree in biology there and graduated from Medical School where she met her husband.
At that point, they moved to the United States where her husband completed his training and then joined an existing practice before opening his own office. She did not pursue her training, but had her children before going to work part-time for the medical practice. As her children got older, she began to work full-time and eventually became office manager.
Excerpts from her direct testimony:
Q Okay. Now, did you have any additional contact with Ms. [Plaintiff][2] at all after February of 2000?
A Yes.
Q What was the date?
A May 12th.
Q Is there a reason why you remember that contact?
A That was the last day that I remember seeing her.
Q Did you make a note that is contained within the chart on that date?
A Yes.
Q What is your memory of your contact, leaving the note aside, what is your memory of your contact with Ms. [Plaintiff] on May 12, 2000?
A Okay. My contact with Ms. [Plaintiff] was calling her son to come pick her up.
Q Okay. Continue. What else happened, if you remember, anything else?
A Yes. Once I called him, I actually walked out with her from the office.
Q How did you do that?
A I walked down the ramp.
Q Can you just describe for the jury where you started, how you got there and the description of the circumstances?
A Okay. She was actually sent by the doctor to the emergency room and she asked me to call her son. She gave me his cell number to call him up to tell him to please pick her up because she needed to go to the emergency room, so I did that.
Q Now, did there come a time when her son arrived?
A Yes.
Q How do you know that?
A Because he must have called up because I walked her out through the front door. She was in the waiting room waiting, and once her son came, she got up and we both walked out the door, and I -- she had the letter in her hand.
Q What letter was that?
A A letter that Dr. [Defendant] gave her to take to the emergency room.
Q Can you describe the hallway you walked down?
A Yes. It's about a 12-foot hallway and she was in the waiting room, so I walked her down -- we walked together down the 12-foot hallway.
Q Why did you do that?
A Because I wanted to make sure her and her son understood that they had to go directly to the emergency room.
Q When you're at the end of that hallway, where do you go?
A I went outside.
Q So you're on the street?
A Yes, I was on the curb outside with her as she was walking to the car.
Q Yeah. What happened at that point when you were outside with her?
A Oh, I asked her why she didn't call the doctor before, why didn't she call him the night before or the day before and, because she had his beeper and telephone number.
Q Did Ms. [Plaintiff] say anything?
A Yes.
Q What did she say?
A "Cosas de la vida".
Q What does that mean?
A Things of life. Things happen.
Q Okay. What, if anything did you say to Ms. [Plaintiff] son?
A I asked him if she felt so ill, why they hadn't taken her the night before to the hospital.
Q Now, on May 12, 2000, did you make a notation in the chart?
A Yes, I did.
Q As slowly as you can, would you just read what you wrote?
A Okay.
Q Nice and loud.
A "When patient's son came in to pick up mother to take to ER, I, [Mrs. Defendant], asked why patient, if she was so ill, why didn't she not go to hospital yesterday. Son stated that he had asked his mother the Thursday night before, and she said she was fine and did not want to go to ER."
Q Continue.
A "I also asked why did not call doctor," and answer -- this was Ms. [Plaintiff] answered this.
Q Read what it says, and just read it.
A And said, "cosas de la vida".
Q Continue reading the rest of your notes nice and slow, just as it reads?
A I also said Dr. [Defendant] has a 24-hour beeper service and did not beep him either.
Q Did you sign your name?
A Yes, I did.
Q Okay. Why did you make this note?
A I wanted to have a clear and -- encounter or actually a complete and accurate account of what had happened at that time.
Q Why was that?
A Because it was something strange about the situation.
Q Can you explain that to the jury?
A I couldn't understand why she would answer "cosas de la vida" knowing that she was that ill and that her being sent to the hospital and the way she was taking it, it didn't just seem right at the time.
Q Who did you speak to?
A I spoke to her daughter.
Q When was this telephone call?
A About a week later.
Q Who made the call?
A I did.
Q Why did you make the call?
A Because I was trying to -- what I usually do, I do with every patient, I follow-up. I was following up the condition of Ms. [Plaintiff] and what had transpired after she left the office.
Q Just tell the jury essentially what is contained on the Post-it notes?
A There are words and there is a telephone number.
Q What were the words?
A Infection, Vidrio, glass and time.
Q Can you spell the Spanish word?
A V-I-D-R-I-O, Vidrio, Infeccion is I-N-F-E-C-C-I-O-N.
Q Okay. One last thing. With regard to your interaction with your husband at the office regarding the patient, can you explain that a little bit to the jury?
A I am married to Dr. [Defendant], but I'm extremely professional. I don't consider him my husband at the office, he is my employer. I strictly work as an office manager and many times because I work as an office manager there are many things that I could jot down that I don't tell him about because this is my job and this is what -- it's part of my job and this is what I do.
Q How about at home?
A At home? Well, at home I'm the boss.
Excerpts of the cross-examination[3]:
Q How ill was Ms. [Plaintiff] on May 12th?
A How well?
Q Ill?
A I'm not a doctor.
Q Well, you told us several times that if she was so ill, you said to the son why didn't you take her to the hospital yesterday and you thought it was a strange situation because she was so ill. So I would like to know how ill was she?
A I mean, if she didn't feel that well, that the doctor actually had to give her a letter, she must have been ill, correct, to be seen in the emergency room.
Q So when you wrote down that in your note that "if she was so ill, why didn't you take her to the hospital yesterday," that was because the doctor gave her a letter to go to the hospital?
A I don't understand.
Q This is the note?
A I wrote.
Q This is in your handwriting?
A Yes, it is.
Q "I, [Mrs. Defendant], asked why patient, if she was so ill" -- you didn't know how ill she was, did you?
A Ill in what sense, sir?
Q In the sense you used the word "ill"?
A If she was sick and she had to be sent to the emergency room.
Q And why was she being sent to the emergency room?
A I don't know.
Q Why were you helping her down the hall?
A I wasn't helping her. I was walking down with her.
Q She didn't need help walking?
A No.
Q Was she limping?
A Was she limping? I can't recall that, either.
Q And is it true that you never on any occasion before May 12th, 2000, ever wrote a note in any patient's chart?
A Not this extensive.
Q Do you recall these questions and answers on page 45 of your examination before trial?
"QUESTION: Well, my question is whether or not you include statements like this as a matter of practice in your office depending on the circumstances of a particular case? In this case you mentioned that the overall circumstances concerned you?"
And your lawyer was Ms. [Defendant’s attorney] from [law firm’s name] said: "Just note my objection. Maybe you want to ask her if she's ever put a note like this in somebody's chart.”
"ANSWER: No."
Q And does the office that you're the office manager of concentrate in a particular specialty of medicine?
A Basically, we become doctor sees adult patient and children. It's become a family practice.
Q Do you recall on June 14th, 2004, at the offices of your attorneys you were questioned by Mr.[Plaintiff’s attorney] of [law firm name], the attorneys for Mrs. [Plaintiff]; do you recall that you did this?
A Yes.
Q And you were represented by Ms. [Defendant’s lawyer]; do you recall that?
A Yes.
Q Okay. Do you recall being asked this question last June and giving this answer?
"QUESTION: Does the office concentrate its treatment of patients in a particular field or is it a general practice?
"ANSWER: Doctor is a pediatrician."
Q Then your attorney Ms. [Defendant’s lawyer] said:
"No, he wants to know the patient population in general.
"ANSWER: Pediatrics:
"MS. [DEFENDANT’S ATTORNEY]: What about adults?
"THE WITNESS: Yeah. Adults come in but at their" --
Ms. [Defendant’s attorney] interrupted: "He wants to know what is the general patient population, is it a basic general practice?
"THE WITNESS: Doctor is pediatrics."
"QUESTION: Is it fair to say that the majority of his patients are children?
"ANSWER: Yes."
Q Do you recall that question and answer?
A That answer was completely wrong.
Q It was completely wrong. Did Ms. [Defendant’s attorney] take you out of the room and then you came back and said you wanted to amend an answer?
20 A Yes, she did.
21 Q And do you recall coming back into the room and your attorney said we had -- on page 14:
"We had an off-the-record discussion and she would like to go back and amend one of her answers concerning the patient population. I was concerned that she had said that there were more pediatric patients. I'm not quite sure about the number of adult compared with the pediatrics.
"THE WITNESS: Yes.
"QUESTION: You'd like to change an answer you gave previously?
"ANSWER: Yes.
"QUESTION: What is that change?
"ANSWER: It would be basically that they are the same. It would be about the same percentage pediatrics and adults."
Q So, first of all, would I be correct, I may have asked you this. I apologize if I did, but you have no memory of the patient having been in the office two days before May 12th, do you?
A No.
Q And so you noticed her sitting in the waiting room. Did you speak to her at all?
A No.
Q You didn't notice anything at that point?
A In regards to?
Q Anything about her condition?
A No.
Q Okay. And so you weren't present when the doctor spoke to the patient?
A No.
Q You weren't present when the doctor examined the patient?
A No.
Q But at some point you learned that she needed to go to the hospital?
A Yes.
Q How did you learn that?
A Probably when I went to the front to get something or to do something.
Q All right. You say probably, does that mean you don't remember?
A That was what happened, I went to the front desk to get something and the receptionist or the doctor must have advised me that Ms. [Plaintiff] had to go to the emergency room.
Q You said that you saw the doctor and the receptionist --
A No -- let me clarify. I came to the front and I was told -- I don't remember if it was a doctor or the receptionist that Ms. [Plaintiff] had to go to the emergency room.
Q So you weren't called, correct?
A No.
Q So you just happened to come out of your office?
Q And someone, you don't remember who, said the patient has to go to the hospital?
A Yes.
Q Did they tell you why?
A Did they tell me why? No.
Q Did you discuss with Dr. [Defendant] what is the diagnosis or what is the problem or what's wrong with this lady?
A No.
Q Did anyone tell you what hospital to send her to?
A No.
Q Does the doctor have the privilege of admitting patients to the hospital anywhere in the City of New York?
A Yes.
Q Where?
A St. Luke's and Bronx Lebanon Hospital. {Note: Not the hospital she went to}
Q Normally, when Dr. [Defendant] has a patient who he thinks requires hospitalization is the patient hospitalized at a hospital where he is going to attend to them?
A I can't answer that with a yes or a no.
Q And so she gave you her son's number and you called the son?
A Yes.
Q And other than telling him, "you have to come get your mother and take her to the hospital," do you remember anything else that was said?
A No, he said he was going to come and pick up his mother.
Q Now, was Ms. [Plaintiff] sitting in the waiting room while this happened?
A Yes.
Q And then did you stay with Ms. [Plaintiff] while she was waiting with her son or did you have other things to do?
A I was doing other things in the front, yes, and in the back. I was going from my office to the front desk.
Q Now, if I understood you correctly, the son called to say that he was there so that his mother could come outside?
A Yes.
Q So he was never in the office?
A No.
Q Do you recall being asked these questions and giving these answers on page 20 of your deposition, line 21.
"QUESTION: Can you tell me whether or not you recall having any conversations with your husband, Dr. [Defendant], regarding the visit of May 10th, 2000?
"ANSWER: No.
"QUESTION: And that includes not just that day, not just the day of the visit but any time subsequent up until and including today?
"ANSWER: No.
"QUESTION: You never talked to him about it?
"ANSWER: Patient, his patient/doctor relationship is his patient/doctor relationship and in my home and at the office that's not --it's not talked about."
Q So you didn't have any conversations with Dr. Defendant about this patient ever, did you?
A No.
Q So if the conversations took place outside the office and you never told him about it, how could he write a note where he talks about what the son said and what the patient said in front of you?
A I don't know.
Q Okay. Am I correct that you don't know why you wrote this note?
A No, I do know why I wrote the note.
Q On page 47, at line ten.
"QUESTION: My question is, specifically, do you want to preserve the statements essentially?
"ANSWER: No. I wanted more than the statement. I wanted a complete recollection of the situation of the day and the time and I didn't want to lose because I work with a lot of papers putting things away and speaking to people and I wanted to have an accurate account.
"QUESTION: Well, you said you have never done this before?
"ANSWER: No, I haven't.
"QUESTION: What was it that was so different about this particular case that you did it?
"ANSWER: Sir, I cannot tell you."
Q Well, is it a fair and correct statement that you were very concerned about the patient's condition on that day?
A Concerned? I was actually writing what I spoke to him and Mrs. [Plaintiff] about.
Q Were you concerned about the patient's condition on May 12th?
A Concerned in what sense?
Q In any sense?
A Doctor sent her to the emergency room.
Q Do you recall being asked this question and giving this answer on page 25, line 11:
"QUESTION: Now, what led you to write into this chart, this statement?
"ANSWER: The condition of the foot.
"QUESTION: What do you mean by that?
"ANSWER: I was a bit concerned.
"QUESTION: Why were you concerned?
"ANSWER: Um, a little bit of instinct."
Q Do you remember any complaints she made about her foot on May 12th?
A She might have said that she was walking that it hurt her, but she didn't -- other than that, I can't remember anything else.
Q Page 49, line 14.
"QUESTION: Do you recall specifically any actual complaints that she made that day regarding her foot?"
Ms. [Defendant’s attorney] said: "Other than what she's already testified to? Mr. [Plaintiff’s attorney], yes.
"ANSWER: No."
Q Is it true you didn't look at her foot that day?
A Did I look at her foot? No.
Q Without knowing what the condition of her foot is, without knowing what this illness was other than that it was a problem with her foot, a few days later you decided to call the house and find out how she's doing?
A No.
Q When you called on the telephone and spoke to her daughter?
A Uh-huh.
Q Did she tell you that her mother had been admitted to the hospital?
A Yes.
Q And she told you, you wrote down the word "Infeccion"?
A Infection, yeah.
Q And glass?
A Uh-huh, yes.
Q So she told you that they found a piece of glass in her mother's foot at the hospital, correct?
A Yes.
Q Well, did you know that Dr. [Defendant] had told her on Wednesday come back in 48 hours?
A No.
Q If a patient is told by their doctor comeback in two days, isn't it a good thing for them to come back in two days?
A Yes.
Q If the doctor gives the patient a prescription for medicine and says, "I would like to see you again in two days and see how you're doing," is the patient entitled to go home and follow the doctor's instructions and return in two days; is that a good thing to do?
A Depends on the situation.
Q Are the patients encouraged to follow the doctor's advice and that the doctor knows how to take care of the problems that they come to him for?
A Patients are supposed to follow the doctor's advice.
Q If Dr. [Defendant] told us that before he called the patient on May 22, you had told him or someone else that the foot had been amputated – first of all, it wasn't you that told him, correct?
A No, I didn't know it was amputated.
Q And you don't know who did tell him, true?
A True.
Q And did he tell you that he spoke to Mrs. Plaintiff while she was in the hospital?
A No.
Q He never told you that?
A No.
Q Did he tell you that her foot had been amputated?
A I don't recall.
{Note: After jury deliberations began, the insurance company made a settlement offer. Negotiations resulted in a satisfactory settlement.}
[1] Trial counsel is a relationship between a lawyer and a law firm where I am associated with the firm solely for the purpose of trying an individual case. Like the referring law firm, I am compensated only in the event of a recover, and in that event, I receive an agreed upon percentage of the total attorney fee which is set by statute.
[2] The names of the parties, witness, attorneys and law firms have been replaced with a captioned word describing their role in the case.
[3] On occasions during cross-examination, an attorney is permitted to confront a witness with prior statements made out of court if they are inconsistent with the witness’s testimony on the stand. This is called impeachment. In this transcription, prior testimony from the witness’s pre-trial deposition was read for impeachment purposes. That text will be bolded to distinguish it from trial testimony.
