Trial Magazine

More than 30 years ago, before I tried my first medical negligence case, I attended several CLE courses presented by experienced trial lawyers. Without exception, they declared that the only way to try these cases was to call the ­defendant doctor as the first witness and, through vigorous cross-examination, establish his or her negligence. But it only took one case—now supported by a lot more trial experience—for me to conclude there is a better way.

My first medical negligence case involved a young woman who was a patient in a psychiatric facility when she suddenly went into a coma. I was referred to a world-class endocrinologist who quickly explained the negligence. “You see these numbers?” he said. “They are grossly abnormal, and she required intervention.”

My client had diabetes mellitus and diabetes insipidus,¹ and her doctors’ failure to monitor and treat these dangerous conditions caused her to go into a ketoacidotic coma. The record revealed that, among other symptoms, the young woman had lost 34 pounds in a two-week span—impossible, my endocrinologist consultant explained, except by massive fluid loss from severe dehydration. My client’s physical and mental condition declined dramatically, but her attending physicians attributed her complaints to psychiatric behavior and failed to give her fluids or increase her diabetes insipidus medication.

Armed with this information, I started taking depositions. I asked the facility’s endocrinology consultant whether it was a deviation from accepted standards of care to ignore these numbers and symptoms when my client was a patient with “known” diabetes.² He answered yes, presumably because he assumed that the attending physician (a psychiatrist) was monitoring the diabetes. Unfortunately, the attending physician had assumed that the endocrinologist was monitoring the patient’s diabetic conditions. Here is a brief reconstruction of the attending physician’s deposition testimony:

Q. Your patient had both diabetes mellitus and diabetes insipidus. Were you aware of that when you were in charge of this patient’s care?
A. I don’t know.
Q. What is diabetes insipidus?
A. I don’t know.
Q. What are the signs and symptoms of diabetes insipidus?
A. I don’t know.

It went on like this for hours. To this day, I have never seen a worse witness.

Applying what I had been told at seminars, I called the attending physician as my first witness at trial. I expected to focus my cross-examination on her failure to understand even the most basic medical information about her patient. To my shock, however, she had studied, learned the medicine, and made a much better, even somewhat credible, witness defending a medically indefensible position. Although the case ended favorably, this harrowing experience caused me to question the universal practice of calling the defendant physician as a witness in the plaintiff’s case—much less as the first witness.

At best, no matter how skillful you are at cross-examination, calling the defendant doctor in your case will mean that one of the first things a jury hears is the defense side of the story. Here are some suggestions for how to try a medical negligence case without calling the defendant physician or any defense witness in your direct case.

Video Record Every Deposition

If it is worth deposing a defense witness, then it’s worth the cost of a professional video recording. The defendant doctor or nurse will be far less prepared to testify at a deposition than at trial. Their deposition preparation often consists only of looking at their notes in the record, and they may have little if any knowledge of lab and other results or what other health care providers noted or did.

I recently deposed the director of a hospital stroke unit who tried to excuse a physician assistant’s failure to page the stroke team because “other neurologists were qualified to examine the patient.” When I asked which neurologists had done so, it was the first time he realized that the patient had not seen a physician, much less a neurologist, for more than three hours. The look on his face when this dawned on him was worth as much as his answer.

If you do your job right at deposition, it will be too late for the defense to fix admissions at trial—especially if you don’t give them the chance to do so. Take your time at deposition, and use the opportunity to go through the record meticulously. If you come out of a six-hour deposition with five to 10 minutes of great answers, it is a rousing success. More to the point, if you cannot get a few minutes of devastating answers in a deposition, what makes you think you could do so at trial when the stakes are higher?

In almost every jurisdiction, the deposition of an adverse party may be used for any purpose—so use it.³ Instead of calling the defendant as a witness—much less the first witness—create a 10-minute highlight deposition reel, and play it at mediation or during trial when it best suits your purpose. You may be able to use the reel in opening, and almost certainly again in closing if you have shown those excerpts during your case in chief. In addition to the highlight reel, you likely will play more extensive excerpts of a witness deposition at trial as necessary to establish certain facts that help your case or provide a foundation for your expert’s opinions.

This practice solves several potential problems. You have complete control of the defendant’s “trial” testimony, and jurors will hear only what you want them to hear. You will have weeded out the boring parts and the surprises.

This strategy deprives the defense of the chance to “cross-examine” its witness and get his or her side of the story in front of the jury early on. In a complex trial with multiple experts, it may be a couple weeks before the jury hears anything other than the plaintiff’s witnesses and defense admissions. This creates a massive hole for the defense to climb out of and more opportunities to settle the case as favorable evidence mounts without any meaningful defense opportunity to respond.

You lose nothing by declining to call defense witnesses in your case in chief. When (or if) the defense case finally starts, the defendant doctor will have to be called as a witness, but you will be armed with significant unrebutted evidence in your client’s favor.

You also can use video deposition excerpts to fill in trial gaps. From time to time, we all have judges whose major concern is avoiding “wasted” time and who at 4:30 p.m. on a Friday will tell you to call your next witness. Video recording all depositions will give you flexibility to fill in the gaps with “testimony.” So keep a cache of deposition videos ready, even if they are not necessarily critical to your case.

Start a Different Way

For maximum impact with jurors, it is critical to get out your story early, starting with opening and continuing through the close of your case. Sequencing of witnesses and proof is always a significant consideration, and here are some ways to approach it.

Use a ‘teacher’ for your first witness. Jurors are inherently skeptical—at least until you establish that you are presenting undisputed facts and not just a one-sided spin of your contentions. One technique I have used is to call an expert to serve primarily or exclusively as a “teacher” of the medicine or science involved in the case, often without even expressing an opinion on the underlying negligence.

For example, in an obstetrics case involving placenta previa,⁴ the defense argued that although a complete previa occurred earlier in the pregnancy, it went away and somehow came back by the time of delivery. Although this is impossible, the jury would not know that unless they understood why. My first witness was an anatomist and embryologist whose role was limited to explaining the structure of the placenta, how it is attached to the uterine wall, and why—short of abruption—it cannot move from its location even as the uterus stretches. Since what he was stating was purely factual and he was not expressing any opinion on negligence (nor was he qualified to do so), there could be no meaningful cross-examination, and we laid the groundwork to completely eliminate the defense’s claim.

In medical negligence cases, anatomists or physiologists make great teachers to explain the physical structure of critical anatomy and how it functions in relation to the case. Because they often are not physicians, they are essentially undisputed fact witnesses. This approach can be used in multiple medical contexts—such as calling a pharmacologist to explain how a drug at issue works.

It works in other contexts too. For example, in a case involving the failure of rusted brake lines, a mechanic can explain how the car’s dual master cylinder works and how its failure could be devastating. Similarly, in a highway shoulder maintenance case I handled, a renowned highway engineering expert testified about what makes a safe shoulder and why it is important.

Establish liability and causation in the first five minutes. Another technique is to call an expert physician as your first witness. As soon as you establish the minimum qualifications to allow the witness to testify as an expert (you can always expound on his or her credentials later), ask these questions:

• Based on your review of the records, do you have an opinion with a reasonable degree of medical certainty as to whether the care that was provided deviated from accepted standards of medical care?
• What is your opinion?
• We will go through this in more detail in a few minutes, but in summary, can you tell us why you say that?
• Based on your review of the records, do you have an opinion with a reasonable degree of medical certainty as to whether the ­failures in care were the cause of the ­plaintiff’s condition?
• What is your opinion?
• We will go through this in more detail in a few minutes, but in summary, why do you say that?

This testimony will be the first thing the jury hears and will reinforce what you just said in your opening. Then go through the specifics with the witness in detail and with subsequent witnesses from various specialties.

Fortify Your Witnesses’ Testimony

Once you have decided on a different way to present your witnesses, think through the details of how to best enhance and reinforce their testimony at trial.

Avoid ‘cumulative’ objections to evidence by starting with the ‘least’ specific. In a medical negligence case, the plaintiff’s claim typically is strengthened by presenting as many different experts as possible to say that negligence occurred. Complex cases likely will involve several medical specialists, each testifying from a different perspective. Defense counsel inevitably will object to multiple witnesses as “cumulative.” One way to overcome that objection is to start the presentation of testimony with the least specific expert and then proceed to the most relevant specialist.

I believe that repetition of the theme is helpful to your case—rarely do you have a jury on your side at the start. To avoid “boring” jurors by hearing similar things over and over, break up the negligence or causation into parts and have different witnesses address them separately with minimal overlap.

In a tuberculous meningitis case involving a four-year-old child, for example, my first witness was an internal medicine adult infectious disease expert. He served as my teacher: He explained the disease, the diagnostic process, and the efficacy of treatment. During voir dire, and again during ­cross-examination, the defense objected because this physician was not a pediatrician. Of course, this went only to the weight of the testimony, not its admissibility. Later, I called a pediatric infectious disease specialist, and the defense predictably argued that her testimony was cumulative. My successful response to the objection was that “the defense objected to the previous witness because he was not a pediatrician, so how can they complain now?”

Defense counsel fell into the same trap during cross-examination of that witness too, arguing it wasn’t fair for a pediatric infectious disease specialist to establish the standard of care applicable to the defendant, a small town ­pediatrician confronted with diagnosing a fairly uncommon condition. That opened the door for me to call a general pediatrician to establish, now for the third time, the defendant’s negligence. You can use this same tactic when arguing damages; for example, by using a neurologist, a physical medicine doctor, and a developmental disability pediatrician all to establish a child’s condition, its cause, and the child’s care needs.

A corollary to this technique is not to use all of your arguments on one witness and, as noted above, to save some for the witnesses that follow. When there are multiple deviations from the standard of care, for example, let different witnesses describe different aspects of the negligence that occurred. Almost without exception, by properly sequencing witnesses, the defense just can’t help itself from falling into the trap. So go from the general to the specific.

Help your teacher demonstrate your case. Give your teacher witness the same types of teaching aids that might be used in a classroom. Use your imagination, and see if you can summarize your entire case in a few exhibits or less.⁵ It may sound “old school,” but big poster boards that the jury can take into their deliberations have some significant advantages over PowerPoint slides that are gone immediately after their display. But remember that just because you spent a lot of time and money on an exhibit, don’t be afraid to discard it if it doesn’t help your case.

This principle does not apply only to your teacher. Try to give your witnesses something to talk about and the jury something to see. It does not need to be complex—it can be just a blowup of an MRI frame or a medical illustration, for instance.

In the diabetes case described earlier, I created a large three-part chart consisting of two graphs and a calendar. The two graphs showed the steep downslope of weight loss over the same time period as the marked upslope of the plaintiff’s triglyceride numbers. A large calendar showed different types of documented physical complaints and behavior in four separate colored blocks for each day—gradually shifting from no color to all four quadrants being filled in the days leading up to the coma.

Another type of exhibit is what I call a “should be/was here” chart. For example, in a case involving negligent failure to provide adequate perfusion (blood flow) during cardiac surgery, intraoperative blood gas and pressure readings should have alerted the anesthesiologist to a severe oxygenation problem. We created a chart for trial with four rows listing the critical values, such as oxygen saturation and arterial blood pressure.

Across the top were two columns. The first column started with indisputable facts and listed the safe value parameters, which came from the hospital itself. The second column, initially covered by a sliding panel, showed how this surgery failed to measure up to those parameters. It was quite dramatic to see the witness slide open the panel, showing how critically below normal the numbers fell during this surgery.

Even if you do not apply any of these techniques, remember this important lesson: Learn from experienced trial attorneys, but do not do something just because a successful lawyer says so. Ask yourself why are they doing that? Does it apply to your case? Does it fit with your personality and skill set? Most important, is there a better way to do it?

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Michael W. Kessler is of counsel at E. Stewart Jones, Hacker, Murphy in Troy, N.Y., and can be reached at mkessler@joneshacker.com.

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Notes

1. Diabetes insipidus is a condition where the kidneys are unable to prevent the excretion of water. U.S. Nat’l Library of Med., Diabetes Insipidus, https://medlineplus.gov/diabetesinsipidus.html.
2. The key issue was what monitoring was required for a patient like my client with “known diabetes.” When the deposition transcript was returned to me, however, the stenographer had typed “no diabetes”—creating the exact opposite meaning. I got the transcript corrected, but this is another example of why you should video record everything without exception.
3. See, e.g., Fed. R. Civ. P. 32; N.Y. 3117 C.P.L.R. (2019).
4. Placenta previa is when the placenta is covering all or part of the cervical opening. U.S. Nat’l Library of Med., Placenta Previa, https://medlineplus.gov/ency/article/000900.htm.
5. For inspiration, refer to the works of Edward R. Tufte. See, e.g., Visual Explanations (1997), Envisioning Information (1990), The Visual Display of Quantitative Information (1983).