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Anatomy of a Civil Trial

MR. MALONE: Absolutely no evidence this gentleman had emboli on April 7th, 8th, 9th, 16th, 26th?

DR. TZENG: I don’t see it clinically, but that’s not what my expert says.

MR. MALONE: Well, that’s what Dr. Ruben comes up with as his sole, after-the-fact explanation. It wasn’t yours, true?

DR. TZENG: Tat’s not mine, correct. Tat was not what I was considering at the time I saw Mr. Wood.

So, that’s story number two. And he was now saying, oh, well, it’s chest pain, noncardiac

chest pain, and maybe he would get ischemia in the hand, and he would have pain in the hand. Okay. Well, still, do you have a reason for doing the surgery?

Do you have disabling symptoms? Sorry, you don’t. But then, they saved the scariest one for last, and that’s

yesterday, and that’s the guy who came in, with the white hair, another paid professional witness, who comes in and says, stroke, gangrene, these were the possibilities here. [Tis was a reference to Dr. Salander. In closing, I usually

avoid referring to the adversary’s hired guns by name, as that shows more respect than I want to convey.] And I guess they’re hoping that you forgot, in the meantime, when the first fellow came on, he said, oh, no, it wouldn’t be appropriate to scare the man about the possibility of stroke or anything like that, because that wasn’t realistically in the cards. I’m an emboli man, but I’m not a stroke man. So, they’re hoping that you don’t see these gaping contradictions in their case. You would also think that in the entire universe of surgeons

they would have found one single surgeon, one single textbook, one single article, that says axillary cut-down, that’s a good option for doing this surgery and that’s the way we do it. But the evidence, there is none. [Notice that I open this closing argument with three of lines of attack: after-the-fact evidence, gaping

my strongest

contradictions between the defendant and his two experts on what justified the surgery, and finally the lack of any objective support in the literature for the defendant’s chosen surgical technique. I make each point with as few words as possible. Tere will be plenty of time later in the closing to come back and underscore each point. Ten you will see that, after a brief stumble, I turn to the big picture: the role of the jury as enforcer of patient safety rules or standards—“the rules that protect all patients.”] Now, the—well, my notes are out of order. Whoops. Okay. So why are you here? Why are we all here? You have the opportunity now to stand up for patient safety,

to help enforce the rules that protect all patients. Or you can choose to believe that the doctor never does anything wrong, that we must totally defer to the doctor in every decision they make, even if they come up with all kinds of contradictory reasons and no matter the outcome. So the question for you will be, is what happened to Mike

Wood three years ago just some random fluke of fate, or did it happen for a reason? Did it happen because a doctor made a series of bad choices where the doctor put getting some business ahead of taking care of his patient?

40 Trial Reporter / Spring 2012 What happened now on the facts of this case, it’s just

crystal clear. Sometimes I talk in closing arguments about preponderance of the evidence and how, you know, we win if you only have 51 percent in our favor. I don’t need to do that, because it’s so clear what happened here. Dr. Tzeng saw Dr. Fieldson at lunch in the cafeteria of

Southern Maryland Hospital. He came up to the room and mentioned that to Mrs. Wood, and she testified about that. So Dr. Fieldson says, I’ve got this patient with an interesting

problem. And Dr. Tzeng says, ah, I’m getting out of cardiac surgery and I’m coming into vascular surgery; I can help with that. Well, would you mind going to see him? Sure. Go ahead. So he volunteers to help. He goes to the hospital room. He doesn’t touch the patient.

Tony Harris was there, sitting on the radiator. He doesn’t touch the patient.

[I discuss the importance of issues like this in the opening

chapter of the new book. Te defendant’s failure to lay hands on the patient and do a physical examination in their first meeting may not be technically important to the medical issues in the case. But laypeople know instinctively that the sacred doctor- patient bond is created by the touch of flesh on flesh, and it is wrong to start a doctor-patient relationship without that.] He writes up a note that he reconstructs from other records.

He says in the note that he’s planning to do an angioplasty, which is the balloon procedure that we know about. Te patient comes in a week later, and he scares the patient

and his wife to death with ominous predictions that “you might not be so lucky next time.” So scary that they sign up immediately for the surgery, and they pay money on the barrelhead. Now, he leaves out all the key disclosures. Here’s a slide that

I showed you in my opening, and it still is true today. I call this the meeting that didn’t happen, the things that were not said. “I could ruin your hand by damaging the nerves.” Even

Dr. Ruben, the first defense paid witness, he said that yes, this is a normal possibility from this kind of surgery, either from damaging the blood vessel or the nerve, and yes, you should tell patients about that. So that’s left out of the picture. “Other doctors do it a different way.” In fact, all other doctors do it a different way, with minimal risk of ruining the hand by damaging the nerves, because they go through different routes and they don’t get anywhere near these key nerves up in the armpit. “I’ve only done this once or twice.” Tat was left out. And,

“You can put this off indefinitely.” Tese are the admitted nondisclosures. Te only tiny bit of controversy that we had in the case about what was said and what wasn’t said was the issue of, did he use the “N” word, the nerve word, at all. Mr. and Mrs. Wood said he never said anything about nerve damage. But Dr. Tzeng said, “Yes, I did say something about it.” But here is all he said. Take a look:

MR. MALONE: So what you said was, during dissection there is potential surrounding tissue injury, including nerves?

DR. TZENG: Tat’s correct.

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