Lee v Westchester Medical Center
The case involved a 41-year-old man who suffered a Basilar artery stroke. His wife, who had last seen her husband at 10 pm heard a “thud” at 3 am the next morning. She then ran into the bathroom and found her husband unconscious and covered in vomit. She called 911. Her husband was emergently transferred to Westchester Medical Center, a Level One trauma center and certified stroke center. There, the admitting diagnosis was a stroke and he was appropriately worked up for that condition. However, the reading radiologist and neurologist, both of whom were residents, misread the CAT scan angiography, ruled out stroke and worked him up for infection and dissection. It was not until 3 hours later when the CTA was reread by a more experienced radiologist that the diagnosis was made and appropriate treatment given (a thrombectomy).
Our claim was that as a result of the misread, plaintiff’s treatment was delayed for three hours. Our claim was that delay in treatment resulted in significant brain damage causing severe short term memory issues — that the delay deprived plaintiff of a chance of a better recovery. Although the defense tried at first to dispute the misread they eventually conceded the point. The thrust of the defense was causation — that the doctors did not cause the stroke and that all of the damage had already been done between 10 pm and the time of arrival to the hospital. The defense called expert witnesses to explain that all of the memory issues were due to the severity of the stroke itself, that it involved a major artery providing blood and nourishment to the brain and that earlier treatment would not have allowed for a better outcome.
ISSUES
JURY SELECTION Concerns — How to deal with them Respect for doctors Complicated issues Stroke Experts Sympathy Cynicism Damages — prep for large award Use of answers from jury selection on summation
OPENING STATEMENT Admit what the defendants did right Spell out what they did wrong Develop a case frame No notes Use of analogies to explain complicated medical issues Tell the jurors what you want
DIRECT EXAM Call the defendants. Adverse direct exam Use of medical illustrations Defining terms Securing admissions Tracking the language in the court’s charge Dealing with departures and causation
CROSS OF EXPERTS Set the witness up, knock the witness down Use of exhibits Collateral attack Use of prior testimony
FINAL ARGUMENT Answering the defense points Working with missing witnesses Use of exhibits during summation Powerful argument Asking for money damages Economic Pain and Suffering Loss of consortium