The way to win: Teach the jury about medicine

Malpractice Briefing

The way to win: Teach the jury about medicine

This doctor was determined to dispel jurors' confusion. In the process, he taught them to find in his favor.

By Frank E. Mele, MD
General Surgeon/Philadelphia

After 38 years of surgical practice, I was hit with my first malpractice suit. There's little comfort in knowing that many blameless colleagues have also been sued, and that it's rare for a busy physician to remain untouched by the tort system. Reading that complaint stung me deeply. A patient's family felt I'd contributed to her death, and that hurt.

I knew I'd have to convince a jury I wasn't negligent. And I desperately wanted the patient's family to understand that I did all I possibly could, and that their loved one's death wasn't my fault.

I'd performed a laparoscopic cholecystectomy on the patient, who was one of my answering service operators, in the spring of 1995. A morbidly obese 46-year-old, she had experienced four prior abdominal procedures. A day after she was discharged, she reported a bout of vomiting. My office staff told her to inform her family physician, who gave her an antiemetic. We called the next morning to check on her. Her husband reported that she was feeling better.

That evening, she presented at the hospital emergency room because of vomiting. Tests revealed mildly elevated liver function and a small-bowel obstruction. She was dehydrated. With nasogastric intubation and hydration, she quickly improved.

I consulted a gastroenterologist, because I suspected that the abnormal liver studies could represent retained common bile duct calculus. Scans of the cholecystectomy area revealed no collections. Our CT scanner couldn't accommodate a patient of almost 500 pounds, so I requested endoscopic retrograde cholangiopancreatography to aid in diagnosis.

The consultant and I agreed that manipulation during intestinal obstruction might well cause adverse effects, such as vomiting and aspiration. So we delayed the ERCP a bit, until the patient's only abnormalities were an elevated white blood cell count and low-grade fever. She had no peritoneal signs or abdominal tenderness, and she'd experienced bowel movements.

We then transferred her to a nearby hospital. The gastroenterologist wanted to perform the ERCP there, because it had a state-of-the-art scope. The procedure ruled out any cystic duct leak, and no calculus was found. However, in the recovery room, the patient quickly deteriorated. Her pulse rose to 150. She became agitated, confused, and disoriented. Her condition worsened over the next few hours, until she finally coded and couldn't be resuscitated.

No one informed me of the patient's death until I made rounds the next morning. I'd expected to reassure her that she was on her way to complete recovery. Instead, I found her husband sobbing over her recently expired body.

An autopsy showed no abscess within the abdomen, no gross tears or areas of leakage in the region of the common bile duct, and no collection of fluid. Both lungs were extremely congested and edematous. The cause of death was listed as adult respiratory distress syndrome.

Clearly, some catastrophic event had developed immediately following the ERCP. Just as the two-year statute of limitations on filing a malpractice suit was about to expire, I was named as a defendant, along with three other physicians and both hospitals.

I attended every day of the trial. My attorney gave me strict instructions to remain expressionless, no matter what was said—no grinning, no eye-rolling, no disapproving head motions. I felt like an inanimate object.

The first witness was the patient's husband, who testified with great emotion about how he had to tell his two sons that their mother was gone. The jury was clearly moved.

Over the course of the litigation, I was pretty emotional, too—filled with fear, anxiety, self-pity, anguish, and depression. I had difficulty sleeping. I spent hours in our hospital's medical library, retrieving dozens of documents about my patient's condition, studying every line and entry, and taking extensive notes.

Expert witnesses for the plaintiff appeared from other states. They included surgeons, infectious disease doctors, internists, pulmonologists, critical care physicians, and an economist. It was hard to keep silent during the "expert" testimony. Some comments were inaccurate, accusatory, derogatory, and rude. One expert claimed to be clinical professor of surgery at a medical college I'd never heard of. His "appointment" was allegedly made two years before he was board certified. My attorney was effective in cross-examining him, but it was difficult for me to remain quiet.

Worse, the jurors appeared bewildered by the medical jargon, confusing charts of lab results, order sheets, and autopsy report, all of which had been placed upon large posters. They received little explanation. I knew they needed to hear the facts in language they could understand.

I implored my attorney to put me on the stand so I could defend myself. One of the stipulations the defense had to agree to was that when I testified, I couldn't refer to the ERCP or the doctor who performed it, since he wasn't named in the suit. This agreement made things confusing. I was a defendant, but the physician who was directly responsible for my patient at the time of her death couldn't even be mentioned. I didn't blame him. I suspected that, largely because of her obesity, the patient had experienced some oxygen deprivation while being sedated for the ERCP.

Eager to tell my side of the story, I gave my attorney a long list of questions to ask me and told her not to cut me short. I had to clear up the confusion left by the plaintiff's witnesses and give the jurors a chance to know me. I wanted them to realize that my patient was in good condition when she arrived at the second hospital, and that I had nothing to do with her demise.

My testimony began with my credentials. I addressed my comments directly to the jurors, looking at each one as I spoke. I defined my duties during my tenure as chairman of a hospital surgery department, my clinical professorship at a medical school, and so on, hoping this would help establish my credibility.

I also prepared five pages of definitions of terms used throughout the trial, to remind myself to define them during my testimony at every opportunity. I could see the gratitude in the jurors' faces.

The plaintiff's experts attempted to discredit the laparoscopic procedure I'd performed. Here's what they said, and how I tried to refute their testimony:

•"A bile collection was present, and Dr. Mele should have taken the patient to the operating room and drained it. This would have avoided biliary peritonitis and her death."

Since there had been several references to a bile leak and a collection of bile that should have been drained, I described the two ultrasound studies and read the radiologist's report. I pointed out that no intra-abdominal collections were reported, and reminded the jury that this patient had had four previous abdominal operations.

There was some ascitic fluid noted in her known recurrent ventral abdominal incisional hernia, bathing decompressed loops of small bowel within the hernia. The plaintiff's attorney kept referring to "acidic" fluid eroding this patient's intestines! I explained the meaning of ascitic fluid and watched grins appear on several jurors' faces as they comprehended the lawyer's fumble.

•"Rarely is it necessary to place more than four clips or staples. Dr. Mele must have had technical problems during the procedure. I counted 12 clips in a postoperative X-ray."

To refute this conclusion, I presented a large poster illustrating the procedure and explained it in lay terms. I demonstrated the trocars used. I illustrated the ductal and arterial variations of the biliary system, and showed that each tubular structure entering or leaving the gallbladder must be clipped and transsected. There is never a set number of clips to be used, I explained, noting that the endoscopic stapler contains 20 clips. "If only four or five clips were necessary, why would the instrument be designed to deploy 20 clips?" I asked.

•"I believe the clips became dislodged, and this caused the cystic duct to leak bile that produced biliary peritonitis leading to sepsis syndrome, which caused her death."

This time, I presented a soft styrofoam tubular structure representing a duct. I fired a clip across it, and handed the model to a juror to show that the clip couldn't be so easily dislodged.

I then displayed a poster of the autopsy report and pointed to the statement that said all of the clips were in place in the liver bed—intact, not floating freely. There was no generalized biliary peritonitis, the report said. Moreover, there were no collections of fluids. Previous expert testimony had avoided this statement. The report also revealed that none of the abdominal viscera demonstrated bile contact effect.

•"There were ventilatory problems, and there were oxygen saturation problems. Dr. Mele should have converted to open cholecystectomy. Then there would be no bile leak."

I addressed this by posting the anesthesia record, which showed stable blood pressure, pulse, and oxygen saturation, awake intubation (the safest technique in the morbidly obese), normal ventilator pressures, and other anesthesia parameters. Conversion to open cholecystectomy wasn't indicated and would have greatly increased the operative and postoperative morbidity, I testified.

•"It took Dr. Mele two hours to perform the procedure. He must have had a problem."

I showed the jurors published data involving hundreds of patients undergoing laparoscopic cholecystectomy, noting that the average time spent operating on the morbidly obese was 160 minutes. Given my patient's massive weight and the extra time need to lyse the adhesions that had resulted from her four prior abdominal operations, I was pleased that I'd been able to finish the procedure in less than 120 minutes, I added.

•"The second admission to the hospital was due to a bile leak, not intestinal obstruction. The X-ray findings represented a paralytic ileus, not intestinal obstruction."

I debunked that theory by presenting films on a view box. First, I revealed and described the massively distended small bowel that had caused her intractable vomiting as well as her subsequent dehydration and electrolyte imbalance. I made sure each juror understood my comments. Then I compared the films with a prior normal X-ray that showed no distended bowel. The jurors were visibly impressed by the difference. Next, I read aloud the radiologist's report of "mechanical small bowel obstruction."

Another part of my defense strategy was to present a near-life-sized mannequin whose chest and abdominal organs are easily disarticulated. I removed organs and explained the anatomy. It felt as though I was teaching eager medical students. Because my attorney gave me the time to fully explain things, I was able to create an environment in which I was comfortable.

The plaintiff's attorney was unable to shake me during cross-examination. During a break, a co-defendant's attorney told me that he had observed each juror's facial expression and had never seen such intense attention to a witness.

I had frequently addressed my comments to the family, too. I wanted them to know that I was truly sorry for their loss and had done all I could to prevent the end result. Although I realized that the jurors sympathized deeply with the bereaved family, I still felt I'd had my day in court and was pleased that I'd presented my views without trying to shift blame to the other physicians involved.

Those confident feelings lasted only a few minutes. Listening to the plaintiff's attorney's closing statement proved traumatic. "Don't let these guys get away with this," she told the jurors. "Did Dr. Mele know what he was doing?" she asked them. "You only need to be 51 percent sure of negligence," she pointed out. "Be generous in your settlement deliberations."

The judge's charge to the jury was equally devastating. "Remember, a verdict against the doctor won't prevent him from continuing the practice of medicine," the judge said, assuring the jurors that "the doctor will not lose his license if the verdict is for the plaintiff."

I'd fully intended to be present during the deliberations. But by that point, I felt completely vulnerable and couldn't bear another moment. To my attorney's disappointment, I left the courtroom. It was my birthday, and I wanted to spend what remained of it with my family. Three hours later, my lawyer called and said the jury would return soon. Would I come back to court? I declined, asking her to call me when the verdict was announced. Ten minutes later, she called and greeted me with, "Happy birthday! The jury returned a verdict in your favor."

The sudden emotional relief I experienced was powerful. The two-year nightmare had taken its toll on me. I'd lost 27 pounds. I'll never forget this distressing period, but will be forever grateful for the favorable verdict.

As my experience proves, the best way to win a malpractice case is to contribute to your own defense. You can't just rely on your lawyer's skill. He or she will welcome your input. Insist upon reviewing all of the data the attorneys have. Only then can you prepare yourself for both the deposition and the trial. Your attorney knows the law. You, however, know medicine.

You must present yourself to the jurors as a caring and competent physician. Do all you can to get them to see you as honest and sincere. Show humility, never arrogance. Pay attention to every word uttered in court, so that you can refute the inaccurate ones. Take notes, and be sure you know in detail and by memory your prior deposition. Resist the temptation to make any derogatory remarks, and don't try to shift blame. Plaintiffs' attorneys love it when defendants fingerpoint.

Remember, you'll never convince the plaintiff's attorney of your innocence. You can, however, convince the jurors. Look at them, and show them your concern. Speak to them in language they understand. If exhibits are appropriate, use them. Jurors love "show and tell"; it helps them understand difficult medical issues. If you've done no wrong and can present your case in a way that the jury will understand, you'll probably be rewarded with a favorable outcome.

My attorney polled several jurors following the verdict. How did they arrive at their conclusions? One said, "Dr. Mele took the time to explain to us, so we could understand what really happened. No one else did." Another added, "Dr. Mele seemed to really care about his patient. He did all he could to make her better."

I've taught for many years, but I've never had a more rewarding experience. My "class" really got the lesson.

How to get jurors on your side

We showed a prepublication draft of the accompanying article to several malpractice experts and asked for their opinions on the author's efforts and for their advice on how to educate a jury. Here's what they told us:

Be a patient teacher. "The defendant doctor must first educate his defense attorney about the medical issues, so that he can present the case in plain language to a lay jury," says David Karp, a risk management consultant with Medical Insurance Exchange of California. "Physicians should welcome the opportunity to explain to a jury what they did, what might have happened, and the meaning of the various tests and procedures they employed. This task should come naturally, since it's what doctors do for their patients every day, especially in surgical cases.

"It's no coincidence that the word 'doctor' comes from the Latin term meaning teacher," adds Karp. "Dr. Mele's effort to educate the jurors enabled them to understand the facts dispassionately and decide the case in his favor."

Put the jury in your shoes, says James Lewis Griffith Sr., a malpractice attorney in Philadelphia. "The more jurors understand what you did, why you did it, and why you believe that what you did was right, the more likely they are to agree with your position."

Prepare, prepare, prepare. "Articles, blow-ups, drawings, and models all aid in visualization and understanding," says Griffith. "Read the opposition's reports, depositions, and references. Research the qualifications of the so-called experts. Study all speakers, politicians, and clergy. Who convinced or touched you? Did they make leaps or slowly build a belief in the wisdom of their words? Delivery is everything. If you're prepared to be a polite, caring person, being a good witness will be easy."

Don't be afraid to express sympathy. "Dr. Mele mentions that he frequently addressed his testimony to the family, to let them know that he had done all he could," says David Karp. "I infer that he hadn't discussed the case with family before then. With the approval and advice of defense counsel, I've advised physicians to meet with family members following a loved one's death, to explain in plain language what happened, review operative or autopsy reports, answer questions, and express sympathy.

"This approach didn't always prevent litigation, but in many cases, it did," says Karp. "Remember, plaintiffs' attorneys contend that most people who come to them want answers, not litigation."

Face the jury or your lawyer? "There is a division among experienced trial attorneys about whether a witness should face and address the jury in answering each question," says Jack E. Horsley, a malpractice defense attorney in Mattoon, IL. "I favor a simple question-and-answer session between the lawyer and witness. Otherwise, it might look to the jury like a play or melodrama, something that's carefully rehearsed, so that the witness is lecturing the jury. But it's clear that in this case, Dr. Mele established good rapport with the jury."

 

Frank Mele. The way to win: Teach the jury about medicine. Medical Economics 2000;8:112.