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Anatomy of a Civil Trial We asked the paid witnesses, can you refer to any objective

source? Oh, and by the way, let me be clear on one thing. I paid Dr.

Healy to come down here, but he’s not in some stable of experts who come into court over and over and over for the same lawyers. And one of them even stood right here and told you—or

maybe he said it sitting back there—and I said to him, really, Dr. Ruben, come on, you’ve got five or ten current cases with this law firm over here. Are you really telling the jury that you can be fair and impartial and objective? Oh, yes. And in fact, he found the question insulting. Well, but none of them could refer to any objective source.

Tey could have scoured the literature and come up with something, and it would have been easy to totally shoot down Dr. Healy, if there was any evidence. Or they could have said, you know what, I know Dr. Wye

up at Hopkins and he does it exactly like Dr. Tzeng did it with the axillary, and there’s a guy over at the University of Maryland and he does it the same way too, and there’s a couple of my colleagues at Suburban Hospital, et cetera, etc., etc. Did you hear anything like that? No. And the real proof of the pudding, do the defense experts—

do they do it the way Dr. Tzeng did it? Oh, no. Te first one told us, well, I’ve done it here a couple of

times, here just above the elbow, but most of the time I refer them to radiologists, to go through the groin, which is just, of course, what Dr. Healy said that everybody does. You refer them to the radiologist and you either go through the groin, and if that doesn’t work, because it’s a little tricky, you go through the elbow, you get nowhere near these nerves, the patient’s fine. Ten the second guy comes in and he says, oh, well, I have

my young endovascular guy, the navy guy, I have him do all of them, or I’ll bring in a radiologist, but I’ve never done it the way Dr. Tzeng did it either. So what are they saying? Tey’re saying pay no attention to

what I do, only pay attention to what I say. [Another good closing tactic is to throw out a question to

the defense that you know it cannot answer.] So let’s challenge Mr. Roling. When he comes up here, let’s

have him explain to us why nobody in the world, according to our evidence, does it the way that Dr. Tzeng does it. Now, I know that they said, oh, it’s fine, it’s fine, we’ll give it our blessing. But where is the concrete evidence of other people doing it the way he did it? So he broke these safety rules, and part of his problem was here, in the—one of the very last questions that I asked Dr. Tzeng:

MR. MALONE: You didn’t collaborate or consult with any of your partners?

DR. TZENG: I don’t see the need. Remember how Dr. Healy told us that team members work

together to deliver safer patient care? If he gets a patient who has some kind of problem that he doesn’t do every day, well, he brings in a radiologist or another vascular surgeon, and they’ll work together to give the patient the best care. Tat’s not the

44 Trial Reporter / Spring 2012

way they do it at Surgical Associates, Chartered, because they’re all out there on their own, and they only share expenses, as Dr. Tzeng told us in his video deposition. Now I want to talk for a minute a little bit more about this

informed consent, what the Judge told you about. I’ve put part of it on the board. And please, don’t take my word for it. You’re going to have a copy of the whole thing. I want you to read the whole thing. I’m just highlighting pieces that I think will be helpful to you. [I highlighted the choice tidbits of the lengthy informed-

consent instruction. I always stress with the jury when showing them an excerpt that I want them to look at the entire thing, to defuse the notions of any suspiciously minded folks.] “Te physician is required to explain the treatment to the patient and to warn of any material risks or dangers, so the patient can make an intelligent and informed decision about whether or not to go forward with the proposed treatment.” And then there was this. You must determine if Dr. Tzeng

failed to disclose information which a reasonable person in the position of Mr. Wood would consider material or important in deciding to have this particular surgical procedure. So it’s really not what doctors think so much that’s important; it’s what reasonable patients would want to know. [A powerful aspect of the patient-centered jury instruction

on informed consent—focused on what a reasonable patient would want to know rather than what reasonable physicians disclose—is that the experts on “reasonable patients” are sitting in the jury box. Again, you are enlisting the jury as the voice of the community.] Well, I’ve got a group of them right here. You get to think

about what reasonable patients would want to know, and whether or not the things that I showed you, the nondisclosures, should have been said. Here are the ones that were mentioned by the Judge. And she’s, of course, not endorsing our case; she’s just saying these were—our allegations. Would a reasonable patient have wanted to know that

alternative ways are available to treat this with much lower risk of nerve injury? Would a reasonable patient have wanted to know that there was a lack of urgency in treating this blockage? And, would a reasonable patient have wanted to know that Dr. Tzeng lacked experience in this particular surgery? Now, the funny thing here is, nowhere in this instruction does

it say that the patient has a duty to be suspicious of their doctor or to run out and get a second opinion and ask a lot of questions. [Te downside of an informed-consent claim in a

malpractice case is that it focuses critical attention on what patients did or failed to do to inform themselves. So it’s important to push back and point out that patients have no such legal duty to ask a lot of questions. But at least as important as the legal point is having some answer to the question on many jurors’ minds: Why didn’t the patient get a second opinion? See how we answered that below.] Now, if he’d done the right thing, of course he would have

said, hey, you’ve got plenty of time, go get your insurance, go talk to somebody else, and come back to me when you’re ready, when

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