I've Never Lost A Malpractice Case

January 31, 1990

Today I took a verdict in Supreme Court, Queens County.  The case involved a claim of obstetrical negligence.  It has been a very difficult trial.  The Judge didn’t like me or the case.  My adversary was much more experienced than I, and much more physically imposing.  I am about 5’8”; he is well over 6 feet tall and fairly heavy.  He was a little on the arrogant side and was the type who did not hesitate to avail himself of any opportunity to take advantage of a situation whether fair or not.

The Judge had inquired about the possibility of settlement before we opened to the jury.   I had been instructed that I could settle the case in the range of $350,000 to $500,000.  When the Judge asked what our demand was, I told him exactly that.  He then asked defense counsel if there was any offer.  There was not.  He told him to call the insurance company and get $250,000 and the case would be settled.  I told him that I did not have that authority, but he was already angry and didn’t care.

I realized afterwards that a demand of the amount I gave him was as good as telling him that it was not a case.  Nobody would settle a truly meritorious case involving brain damage to an infant for such an amount if there was a realistic chance of winning.

When defense counsel returned and informed the Judge that they would not make an offer, he nearly spat at me.  “Counsel!  They won’t even pay $250,000 for this case.”  “I know,” I said.   “Your honor, I am prepared to proceed.”

The Judge was apparently an officer in the State National Guard reserves.  Every morning when he entered the courtroom, the court officer stood at attention saluting the Judge.  Once the Judge ascended the bench, he would face the officer, return the salute and seat himself.

There were quite a number of incidents during the trial which reflected the Judge’s attitude toward me and my case, which I won’t get into now.  Suffice it to say that at one point, I found myself at the top of the courthouse steps in the morning, holding a trial bag in either hand, and literally had to force myself to go through the door to enter the courthouse and be subjected to the unpleasant treatment that was occurring on a day to day basis.

First thing this morning we gave our summations, and the Judge charged the jury.  They got the case right before lunch.  When we came back from lunch about an hour and a half later, there was a note requesting the direct testimony of plaintiff’s pediatric neurology expert.

The Judge called both lawyers to the bench to disclose the contents of the note.  He then asked defense counsel if he wanted to make a telephone call.  “No, Judge.”  The Judge said, “If I were the defense attorney and the jury asked for the direct testimony of plaintiff’s expert neurologist, I would run, not walk to the phones”.

“Judge,” he said.  I’m sure they’re just convincing one holdout.  I’ve never lost a malpractice case.”

It took a while for the testimony to be read back to the jury.  Just about two hours later, we received word that they had a verdict.  It seemed awfully fast, and I was not anxious to hear what it was.

The defendant doctor was sitting in the back of the courtroom when the jury filed in.  In response to the question whether the defendant departed from accepted standards of care, they answered “Yes.”  The defendant doctor let out a yell and bolted from the courtroom.  In response to the question whether the departure was a proximate cause of injury to the child, they again answered “Yes.”  Finally, they were asked the amount of damages they awarded.  I can’t tell you what the breakdown was between past and future damages.  All I can tell you is the total award was for $5 million dollars.  I had never had a case where the amount even nearly approximated a million dollars before.

I left the courthouse in shock.  All I could think of was how easily the answer could have been “No,” despite the fact that I would have expended the same amount of time and effort.

I did have one other thought – my adversary would never be able to repeat his claim to the Judge.

Plaintiff's Verdict - Nassau County

November 23, 2010

I took a jury verdict today in Nassau County Supreme Court.

Included below are redacted images from a PowerPoint presentation used during my summation.

The case involved a colonoscopy performed on November 18, 2005.  My client needed the procedure because he had a family history of colon cancer, a personal history of having a precancerous polyp removed from his colon, and a personal history of inflammatory bowel disease which increases his risk for colon cancer.

It was clearly documented in the record and the procedure room log that the procedure was done early in the morning and complete just a few minutes after 8am.  Normal vital signs were recorded in the recovery room at 8:15, 8:30 and 8:45.  The recovery room nurse checked off that he met all of the criteria for discharge.  There were no recorded complaints. 

He went home at 9:10am and around 3:30 he called the doctor who did the procedure (who was home at the time and returned a message to his answering service) and complained that he felt weak, washed out and felt as if he was having a stroke.

At 8:40 pm, an ambulance was called by a 9-1-1 dispatcher, and he arrived at the hospital nearest his home by 9pm.  A CT scan showed large amounts of blood in his abdomen.  He was taken to the operating room shortly after 11 pm.  His spleen was completely ruptured and out of its capsule and there were over two liters of clotted blood.  His blood pressure was 60/0!

The defense argued that there was no unusual trauma during the procedure.  It was their position that due to the fact that the patient had a splenic hematoma following a colonoscopy in 1999 by a different physician, “there must be something about” him that made him more susceptible to this rare complication.  They also suggested that it may have happened due to adhesions (scarring) which would decrease the mobility of the spleen and the bowel.  They claimed that the adhesions may have formed due to inflammation from Crohn’s disease which crosses the bowel wall.  They claimed that long term steroid usage (for an unrelated medical condition) may have caused a dysfunction of his platelets that made him bruise easily.

The medical records in evidence contained a report from a hematologist who saw him in 2001 to assess why he had the 1999 splenic hematoma.  The impression was a “probable” qualitative platelet disorder, meaning he had a problem clotting.  The defense argued that he therefore had a propensity to bruise or bleed easily and that this might explain the ruptures of his spleen.

There was not one single other medical record or note suggesting a bleeding problem or bruising.  The patient had undergone 9 colonoscopies, a flexible sigmoidoscopy and numerous upper endoscopies with biopsies on almost every one of those occasions and multiple biopsies on many of them, without ever having a bleeding complication.

The defendant himself had written a report to the primary care physician after his first evaluation of the patient in which he stated that the 1999 splenic hematoma had been due to “probable colonoscopic trauma”.

A report by his current gastroenterologist indicated that the patient had asked him what caused the 1999 splenic hematoma and he told him it was most likely an anatomic abnormality (meaning adhesions).

A surgeon who evaluated the patient for the hematoma reported in July 2000 that it had resolved to the point where it was a benign cyst which would appear on future CT scans, but would have no clinical significance.

The defendant testified at his examination before trial that before he performed his first colonoscopy in 2002 the hematoma had “completely resolved”.

The jury was also aware that the defendant had performed colonoscopy on this patient on two prior occasions; December 2002 and January 2005.  The goal of colonoscopy they were told, is to visualize the entire colon from the anus to the cecum and if possible to visualize the terminal ileum. 

The defendant had failed to pass the colonoscope beyond the hepatic flexure during either of his first two procedures.  In spite of this, his November report indicated that he saw polyps in the ascending colon “which were unchanged from the previous colonoscopy”.  At trial, he claimed the report was erroneous even though he had testified at his examination before trial that there were no corrections or additions to be made to that report.

Even though his report described visualizing the ascending colon, he did not take photographs of the cecum or any of the relevant landmarks documenting that he had performed a successful colonoscopy (reached the cecum).

In the end, the jury believed that there was no evidence that any of the alternative causes of the injury to the spleen were supported by the evidence.  

The jury found that the defendant doctor performed the colonoscopy in a traumatic manner that departed from accepted standards of care which caused the otherwise unnecessary surgery to remove the spleen, the near death experience and an increased susceptibility to infection due to loss of the spleen and two incisional hernias.  The hernias have not been operated upon because he is diabetic, on long term prednisone which suppresses his immune system and has no spleen.  He therefore wears an abdominal binder to prevent the hernias from strangulating which could lead to a surgical emergency and even death.

The defendants also argued that the damages were minimal due to the fact that the plaintiff was already debilitated by as many as 20 pre-existing conditions.

The award of damages included $250,000.00 for pain and suffering from November 18, 2005 until the date of the verdict, and $250,000.00 for pain and suffering from the date of the verdict for the rest of the plaintiff’s life, which the jury estimated will be another 7 years; 7 years less than the statistical average.

Justice Is Blind (and sometimes dozes)

March 2, 1992

-         Author’s note:  This week’s story describes another incident from the same trial as last week’s entry, but which took place one week earlier.

Today, I called our Obstetrical expert to the stand and I conducted his direct examination.  One aspect of the case deals with interpretation of tracings of the fetal heart rate patterns made by electronic fetal monitors connected to the mother during labor. 

Here is an example of what these tracings look like:

 

When the tracings come out of the machine, they are continuous.  When copies are made for the parties to a lawsuit, the copies are made on normal 8.5 x 11 inch paper, meaning that each segment is no bigger than that.  In order to give the jury a sense of the continuity of the tracing over time, I taped the segments end to end and posted them on large boards displayed on two side by side easels in the Courtroom.  I then asked the expert to stand next to the easels and interpret the tracings for the jury.

            The Judge’s bench is centered in the Courtroom.  The jury box is against the wall on his left side.  Our Judge has a habit of sitting with his back to the Jury and listening to the evidence with his eyes closed.  Whenever an objection is made, all eyes turn to the Judge, who then swivels around in his chair and makes his ruling.

            Apparently, today, he found the interpretation of the tracings to be a little tedious.  As I was questioning the witness, my adversary raised an objection on the ground that I was characterizing the witness’s testimony.  All eyes turned to the Judge for his ruling.  The Judge did not move or speak.  My adversary gleefully commented that it was an eloquent commentary on my exciting presentation.  There was a fair amount of laughter in response, which appeared to startle the Judge, who then opened his eyes and turned around.

            My adversary was kind enough to explain to the Judge why he had objected.  Although it was clear that he had not heard the question at issue, the Judge sustained the objection. 

            The exchange was memorialized to the best of the Court Stenographer’s ability as follows;

Q. Okay. You have next mentioned that some of these decelerations look like variable decelerations?

A.    Correct.

Q. And some of them you said you can't tell what it is. Why can't --

MR. [Defense attorney]: I am going to object to counsel's characterization of the testimony, with something as significant as these tracings, Judge.

I will withdraw my objection.

Judge, did you hear what I said?

THE COURT: Not exactly.

MR. [Defense attorney]: Well, this is eloquent commentary on how exciting Mr. Pollack is this afternoon.

THE COURT: I just heard you say you had withdrawn your objection.

MR. [Defense attorney]: I am going to object to counsel characterizing what the doctor said. The doctor can describe what he saw.

THE COURT: Yes, let's get the answer from the witness.

I am sure that I am not the first trial lawyer to have a Judge rule against him in his sleep.  I look forward to the day when a sleeping Judge rules in my favor.

Falling Off The Roof

March 10, 1992

Sometimes, your adversaries give you a gift. 

Today, they called a witness who performed a “psycho-educational” evaluation on my client who is claiming to have sustained a brain injury at birth due to negligence of the doctor who delivered her.

            The witness, on direct examination described herself as a “reading specialist and learning consultant”.  After eliciting that fact, my adversary (and the Court) had a very odd and eventually prophetic exchange with the witness):

Q         Sit back and relax. Have you ever done this before; have you ever testified?

A         No, I never have.

Q         It's just like falling off the roof of a building; it's very easy, just relax.

THE COURT: Except when you land.

            The defense position in the case was that there had been no negligence in the care rendered.  The child had a condition known as congenital ocular motor apraxia – an abnormality in the muscles controlling eye movements.  The defense was that the child’s intellectual difficulties were most likely due to the same unknown cause as this condition, and exacerbated by it. 

            On direct examination she described the educational tests she administered and the results.  Her conclusion was that with remedial assistance of the type provided by someone in her profession, the child should be able to improve substantially by the end of her educational career.  She also advised the jury that the school system was required by federal law to provide special assistance to the child during her school years.

            She immediately conceded on cross examination that she did not have a doctorate degree, was not licensed in psychology, and therefore was not qualified to administer standard intelligence tests.  In response to my initial question about her employment she said she is “currently self-employed”.  It turned out on further questioning however, that she had been “self-employed” for the entire twenty years, with only an occasional part time job for a school district.  It was also revealed that she was introduced to the defense law firm by a neighbor who is a pediatric neurologist who frequently appeared in Court as a defense expert.

            Review of the test books she used with my client revealed mathematical errors on her part in the scoring of the exams as well as erasures.  She admitted that she did not apply the time limits on one test which resulted in a higher score than would otherwise be the case.  None of the tests she used were the current version, meaning that revised versions were available.  With all of that, the child tested in the normal range on only one test – which involved testing vocabulary based upon picture recognition.  She used the 1959 edition of that test – in 1989!  She also revealed that she had not seen any of the child’s school records until 2 days before her appearance in Court.  The school records included testing administered by people with doctorate degrees in education using the current versions of the tests with results showing the child functioning at a significantly lower level than her test results did.

            In addition to all of that, my client, the child’s mother approached me during a break to tell me that the witness was repeatedly looking over to the defense lawyer and that there was silent communication going on between them during my questioning.  I did not believe it; I had and still have a very high opinion of the lawyer who defended that case.  But I decided after the break to stand next to the jury box so that the witness would have to look to her left (away from where defense counsel was seated) to see me.

            Once it had been brought to my attention, I noticed the witness looking away from me and the jury on several occasions.  Here is an excerpt of the transcript which reflects what occurred when I brought it up:

            Q         Do you think that Justine has multiple handicaps?

A         Justine has many problems.

Q         And do you think that her problems interact with one another and impact on her overall function?

A         That's possible.

Q         You say it's possible. You evaluated her, didn't you?

A         Yes, I did evaluate her.

Q         You keep looking over there.

A         No, I'm sorry; I’m not trying to be coached, if that's what you think.

Q         I wasn't suggesting that, I just notice that you keep looking over there.

A         Yes, I did evaluate her.

Q         And in your evaluation, did the different handicaps that she has interact with one another and impact on her overall function?

A         Yes

            The witness conceded that it was not acceptable in her profession to draw conclusions based upon the results of a single test which evaluates only an isolated area of function.  However, as we went through her report for the conclusion of my cross examination, it was clear that based upon her own tests, the child’s function was below normal in every category except the picture recognition test.  At that crucial point, in the conclusion of the questioning, here is another excerpt from the trial transcript:

Q         Did you?

A         It says, "However, considering that her receptive language abilities are intact" shall I go on?

Q         Yes.

A         "It is likely that Justine's reading and math could be brought to grade level and that her fine motor skills could be significantly strengthened by intensive prescriptive individualized instruction from a reading specialist or learning disabilities teacher".

Q         Isn't that what I read?

MR. [Defense lawyer]:     I’ll object, Judge.

Q         Why are you looking at Mr. [Defense lawyer]?

A         I don't know. I’m not looking at him for any reason.

Q         What that sentence means, Mrs. [witness], is that based upon this finding of what you described as intact receptive language abilities, all of this other, all of these other problems can be corrected, correct?

A         The math --

THE COURT: Is that what it means?

THE WITNESS:         Yes. The math and reading, I didn't say all these other problems.

Q         You said that it was likely that "reading and math could be brought to grade level, correct"?

A         Right.

Q         You said, "Fine motor skills could be significantly strengthened"?

A         Right.

Q         So, you're saying that these problems can be resolved because you found intact receptive language, right?

A         I found intact receptive language through the tests that I administered to Justine.

Q         Would you tell me where in this report, where you comment on the receptive language, other than in connection with the Peabody Test?

A         Not in that report, but as I explained to you before, the Slingerland, the - -

Q         I’m asking about the report. Where in the report do you describe anything about receptive language abilities, other than in connection with Peabody?

A         I do not. 

            I never realized that I miss so much of what goes on in the Courtroom.  From now on, I will ask my clients to be observant and to report to me any reactions they perceive on the part of jurors, witnesses or even the judge while I am questioning and perhaps too focused to notice.

The Golden Moment

July 1994

I am in San Francisco, California to attend the annual summer convention of a Bar Association for Trial Lawyers.  Last year was the first time in my career that I attended anything like it and it was truly a rewarding growth experience for me as a professional.  I met trial lawyers from all over the country.  I was exposed to techniques and strategies that were completely novel to me.  The programs included practical subjects like evidence and procedure, but some were inspirational, designed mainly to remind us of the most positive aspects of what we do; very much in the spirit of a professional pep talk.  We are helping injured people in need, providing access to the Courts for people who otherwise couldn’t afford it. We are protagonists in David against Goliath stories where we bring cases against the government and huge corporations with tremendous resources and powerful law firms at their disposal. 

One of the goals of Tort law – cases seeking damages for harm caused by wrongful conduct; is to try to eliminate the harmful conduct to avoid harm to additional victims.  It is beneficial to society that Ford Pintos with exploding gas tanks are no longer manufactured.  The same is true of drugs which cause birth defects in children, or heart attack and stroke in patients with arthritis or diabetes.  It was exhilarating to be reminded that I am doing work that provides a tremendous benefit to society.

We trial lawyers invest our own money in the cases we bring.  No interest is ever collected.  It may take many years for the case to be resolved and the investment to be returned.  If the case is lost, and the client cannot afford to repay it, it is a loss.  In addition, if the case is lost, the attorney will never be compensated for the time and effort devoted to the matter over the years it was investigated and prosecuted.

Today, I heard a presentation by a trial lawyer from the State of Alabama.  He must be fantastic with a Jury, because he was not only held the attention of about 300 trial lawyers for the better part of an hour, but he was entertaining and he taught me something which I can't wait to try. 

The subject of his talk was “The Golden Moment”.  He told us that in his opinion, it is essential, at least once during the course of a lawsuit, before the case comes to trial, for the trial lawyer to visit the plaintiff – the injured party – in their home.  It enhances your ability to understand what that person’s life is like, to experience the kind of compassion and empathy that is really necessary to effectively speak to strangers about the effect of the injuries on that person’s life. 

On rare occasions, if you are very fortunate, you will experience what he called the Golden Moment.  It can best be described as a flash of inspiration or an epiphany.  It made perfect sense to me.  I was completely sold and enthusiastic about it.

September 1994

Today, I actually experienced a Golden Moment.  I don't think I will ever forget the experience.  Shortly after returning from San Francisco, I received a telephone call about a potential new case.  In order to evaluate it, I had to go to the office of a large and well-known plaintiff’s medical malpractice firm to review the file which was in their possession.  It was a case that was already in suit; in fact it was ready for trial.  It involved a claim of Obstetrical malpractice on behalf of a twelve year old girl with very severe Cerebral Palsy and mental retardation.  She was confined to a wheelchair, and had no useful speech, able to make only vocal sounds.  It was claimed on her behalf that there had been negligence in the handling of her mother’s labor and the birth which caused her brain damage.

The attorney that started the case and prosecuted it had been disbarred.  The case had been reviewed and rejected by the firm that had the file, and by another prominent firm before that.  It seemed highly unlikely that I would be able to find a case where two experienced firms had not.  However, I thought there was nothing to lose by looking at the file. 

The injuries were so significant, that if it were a case it would be well worth the effort.  Lawyers who handle medical malpractice cases are compensated by a percentage of the recovery.  The worse the injuries are, the higher the amount of compensation the victim is entitled to, and therefore, the higher the attorney’s percentage of the recovery.  This is true even in New York where the actual percentage was reduced in 1985 from the 1/3 that it still is for ordinary negligence cases, to a sliding scale for medical malpractice.  The lawyers who specialize in these more difficult and strenuously defended cases get only 10% of any recovery above 1.25 million dollars – the very point of which is to discourage the attorney from risking the fee on the first 1.25 million, by trying to get the client what they are entitled to.  The example I give my clients is this;      

       If a person sustains injuries worth 3 million dollars in a negligence case, the attorney will be paid one million dollars as the fee.  If the same injury is caused by medical malpractice, the attorney’s fee is 450,000.000.  A pay cut of 550,000.00.

After reviewing the file, I decided to consult experts about the medical records.  I obtained favorable opinions from the experts and accepted the case for trial.

Since the case was already on the trial calendar, I decided to visit the client’s home before attending a conference to schedule the trial and respond to questions I knew the Judge would ask about the nature of the case and the possibility of settlement.

They were an Italian family and they lived in a modest middle class home in Brooklyn.  Marcella was in a family room when I arrived, watching the Disney movie “The Little Mermaid”[1].  I didn’t think much of it at the time.  I was directed into the adjoining kitchen by her father.  There I was introduced to her mother and several siblings.  I spent about an hour in the kitchen speaking to the parents about the case.  When we were finished, I was escorted back out through the family room. 

As I was leaving, the movie was had reached the point where the mermaid needs desperately to speak, but is unable to.  Marcella was on her feet, beating her chest, and making unintelligible but woeful sounding noises in empathy with the mermaid.  Her father explained to me that it was her favorite movie because she identifies with the mermaid, Ariel's inability to speak.

I was stunned.  I had just witnessed a clear and dramatic expression of the pain and frustration that this poor child feels and had thereby been provided with a way to convey her suffering to others.  I felt a little bit foolish and a little bit guilty that even though she was the subject of the case, I had spent most of my time in the home with her parents.  How easily I could have missed seeing what happened, and left with home without the understanding I had gained.

Nothing had changed in terms of my ability to prove her case, but my connection to her, my understanding of how she felt, and my gratitude for having had the experience gave me a determination and confidence I have rarely known.

The case was ultimately settled for the full amount of the available insurance - the largest settlement of my career up to that point, and for many years afterwards.

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[1] The mermaid, who has a beautiful voice, trades her voice to the Sea Witch in exchange for legs.