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Anatomy of a Civil Trial

stolen from him, and he wants to be paid back. And not just liberty was taken from him, but his pride, his dignity as an independent adult male who now cannot pull up his own pants properly and has to have his wife help dress him. His independence. Te liability aspect of this case—was there negligence, was

there cause of harm? Tose are the first four questions on the form. Tat’s, I would suggest to you, quite easy. [Now I return to the list of safety rules that I first presented

in the opening statement. Te jury sees the same list they’ve seen at least twice before—in opening and with the plaintiff’s expert, Dr. Healy. In a book about the Rules of the Road technique, why include a closing argument where I don’t explicitly discuss the Rules in detail until this far into the closing? Because, as we stressed in Rules of the Road itself, the rules of a particular case aren’t necessarily front and center at all phases of the trial, but they are an important core of the plaintiff’s liability case.] Let me show you what Dr. Healy discussed in his testimony,

just quickly. He talked about rules that surgeons are required to obey for patient safety. Tere was no real challenge to these. You’ve got to give the patient the safest option that does the

job. Common sense. You’ve got to avoid cutting near nerves if you don’t have to,

and ask for help if you lack experience. Dr. Tzeng could have even kept the case and kept the business, if he had just called in somebody with experience to work with him on the case. And finally, tell the patient the important facts, so that the

patient can make an intelligent decision. You know when Judge Weatherly told you about this

informed-consent doctrine? And I’m going to talk about it a little bit more. But this is a powerful part of freedom in the United States of America, because we, each and every one of us, even a Jehovah’s Witness who doesn’t believe in getting a blood transfusion—

MR. ROLING: Objection, Your Honor. MR. MALONE: —they have a perfect right to that— MR. ROLING: Objection, Your Honor. THE COURT: Overruled.

[Again, we work hard to bring the case down to fundamental shared values.]

MR. MALONE: —as long as they are informed of the consequences. Te point is, is that it’s a fundamental part of freedom to have the final say in what happens to your own body. And don’t think that the form here relieves Dr. Tzeng of any responsibility where they—when they get to the hospital and they have the patient sign, sign the form. Tat’s just the hospital covering itself.

[It’s important to dispel any notion that the signature on

the consent form is a waiver.] Te informed-consent conversation has to happen back in

the doctor’s office, and I’ll talk a little bit more about that later. But here are the basic rules. And of course, probably the most important one is last, which is putting the patient’s interests first. And just to remind you of who Dr. Healy was, Mr. Wood wins this case in any of three different ways. First, if he needed

this surgery, if he really needed this surgery, then it should have been done in the accepted way that everybody does it, or he should have been referred to someone else. And that’s one. Second, Dr. Tzeng should not have carelessly damaged that

nerve when he was in there. You heard Dr. Healy say that is not proper technique, holding a retractor on a nerve for a half hour or longer.

[Remember, we didn’t get this last “standard of care” point

until redirect examination of our expert.] Tird, he should have informed the patient that, among many

other things, this surgery could have been put off indefinitely. And you know, Mike Wood, as a middle-aged male who doesn’t want to hang around hospitals, if he knew that he could have put this thing off, boom, he would have been out of there. Now, Dr. Healy did one interesting thing in his testimony.

He basically threw out a challenge to the defense. Here’s what he said: Mr. Malone: Is there any textbook, any article, peer-

reviewed literature, that you’re familiar with, that says that Dr. Tzeng’s approach is one of the reasonable options? Dr. Healy: No. And then he goes on and talks about puncturing in the

groin with the percutaneous approach or at the elbow. He says: “You can also make a small incision at the elbow.” Tat’s what he says at the end. But those are the two approaches. [I had already made the point about the lack of literature

supporting the defense at the start of the closing argument. In coming back to it here, it was important not to just repeat the point, but to put it in a new way, as a challenge our witness had thrown out to the defense, which the defense then failed to meet.] So, you know, from a lawyer’s standpoint, I’ve put a big fat

target out there that would be easy to shoot at if they had any evidence at all. [In any malpractice case, you must work hard to get the

literature aligned with your side of the case. Literature is a powerful tiebreaker when both sides have paid experts saying opposite things. Note here that we had no specific quotes and no specific texts. But neither did the defense. So we set up the absence of literature support for the defendant’s surgical technique as a challenge. Of course, this required us to lay the groundwork carefully with interrogatory questions to the defendant and deposition questions to his experts, so that we would not be the victims of any eleventh-hour surprises. See the discussion of literature in Part Five of the new book, Bringing It All Together: Te Nuts and Bolts of a Medical Malpractice Case.] But how did the defense respond? Well, we asked Dr.

Tzeng, in Interrogatory 17:

QUESTION: Identify all medical literature which you regard as reliable authority, supporting any contention by you that your conduct concerning Mr. Wood conformed to all applicable standards of care.

DR. TZENG: No specific literature of which I am aware at this time.

Trial Reporter / Spring 2012 43

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