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How to win that 'unwinnable' case
Every risk manager eventually faces that malpractice lawsuit that seems too big, too tragic, too difficult to fight. When the circumstances are terrible and you can't imagine trying to explain your actions to a lay jury, the temptation can be strong to just settle it and make it go away - even if that means paying a large sum beyond your insurance limits.
No one wants to reach that point, but sometimes it seems the case is just unwinnable. A recent case in Florida, however, serves as a reminder that you shouldn't be too hasty in reaching that conclusion.
In that case, a Fort Lauderdale, FL, jury found an emergency department physician, the nurses, an internist, and a surgeon not responsible for a quadruple amputation on a patient suffering from a kidney stone. The plaintiffs alleged that the amputation was the result of an ED physician's failure to diagnose and failure to properly treat once complications arose. The mother of two, now a quadruple amputee, appeared before the jury and evoked great sympathy, yet the jurors found in favor of the defendants.
So how did the hospital and the other defendants manage a win? James J. Nosich, JD, the defense attorney with the firm of McGrane Nosich in Coral Gables, FL, says the defendants knew that they were not responsible for the tragic outcome and insisted on proving that to the jury.
Nosich defended the ED physician along with attorney Marc P. Ganz, JD, also of McGrane Nosich. The verdict came on Jan. 12, 2009, when a jury found no liability against the ED physician, the ED nurses, an internist, and a surgeon. Ganz and Nosich say they realized from the outset that sympathy for the patient would present an obstacle to obtaining a fair and impartial jury. However, through extensive jury selection, they were able to convince the jury to set aside the natural sympathy for Lisa Strong, 40-year-old mother of two, and focus on the facts of the case.
The trial took about 10 weeks and consisted of rigorous cross-examination and a battle of the medical experts. The plaintiffs alleged that the ED physician failed to diagnosis a "classic" presentation of a kidney stone that led to septic shock while the patient was still in the ED. The plaintiffs further alleged that the ED physician failed to properly treat the shock and then provided improper information to the internist over the telephone, causing him not to come into the hospital on a timely basis.
The plaintiffs went on to say all negligence by the subsequent treating physicians was causally connected to the ED physician, since they relied on the alleged medical mismanagement and wrong diagnosis by the ED physician.
"Obviously, this case involved catastrophic damages," Ganz says. "The plaintiff and her family were brought into the courtroom to testify, while experts on her behalf testified as to the significant economic damages associated with quadruple amputations."
The ED was defended on the medicine and the simple fact that although the plaintiff suffered from significant damages, her life was saved by the ED physician, Ganz says. Significant time was spent in trial by the attorneys for the ED physician discussing the disadvantages that plague any ED physician when faced with an unusual presentation of an underlying serious medical condition, he says.
Nosich says the case clearly was a challenge from the outset. The physicians, insurers, and the other parties on the defense side struggled with how to respond, because the plaintiff was asking for far more money than contractual limits of their malpractice coverage. The plaintiffs might have been willing to settle for the insurance limits, Nosich says, but the plaintiff was demanding much more out of pocket.
The defendants couldn't afford to meet those terms, yet they also didn't want to take the case to trial. No one liked the idea of a quadruple amputee mother appearing before a jury.
"You always have to worry, even if you believe the medicine is on your side and you have a good doctor, whether you can overcome the amount of sympathy that comes with that type of case," Nosich says. "I thought that everyone would be held liable because of the sympathy, so I wanted to be one of the defendants who might be held the least culpable percentage-wise. We were prepared mentally to take a hit."
Nosich tried to focus the jury on the medicine, explaining that the patient came to the ED with a kidney stone blocking the ureter, which produced symptoms consistent with a number of conditions, including kidney infection and gallstones. During the work-up for those diagnoses, the patient crashed from severe sepsis. Ischemia of the limbs set in quickly, and it may have been encouraged by the medications that kept the patient's heart beating. The woman survived the incident but the ischemia led to a quadruple amputation.
The malpractice allegation was that the ED physician failed to recognize the obstructed kidney stone quickly enough and get an expedited computed tomography (CT) scan. Everyone in the case acknowledged that a CT scan would have shown the kidney stone, Nosich says, and that would have prompted intervention by a urologist.
"They tried to say it was simple, that if you just removed the kidney stone, everything would have been fine," Nosich says. "I showed the jury that the diagnostic process was much more difficult than that."
Nosich employed several teaching aids for the jury, including moving time lines and PowerPoint presentations. He focused on helping the jurors understand what was reasonable under the circumstances, rather than what would have been ideal in retrospect.
Nosich also kept coming back to what he considered the theme of his entire defense, a message that was brutally to the point.
"I told them that she might have lost her arms and legs, but my physician saved her life," he says. "In closing arguments, I told them that every year on her birthday, her kids can bring her flowers and a cake instead of taking flowers to her grave. That's a hard thing to say, but that's really what it came down to."