Patrick Salvi II · David Rashid · Przemek Lubecki
Kill Shots: Focusing On What Is Important While Your Opponent Does Not
December 6, 2023 6:30 PM||TLU n Demand
Billy, a 25-M who had Asperger’s syndrome and ulcerative colitis, had a pulmonary embolism in December 2013. Because of his ulcerative colitis, he was more prone to blood clots. Less than a week after completing his 6-month stint on a blood thinning medication following his pulmonary embolism, Billy had unexplained foot pain. He had not had any trauma or other reason for the foot pain. He goes to an urgent care center, which sends him to the ER to rule out a deep vein thrombosis, which can be a precursor to a deadly pulmonary embolism. The ER doctor rules out a venous clot but does not look for an arterial clot. The ER doctor recommends follow up with a primary doctor within 2 days. Billy sees his primary doctor the next day. His foot is still in pain, and now, he has specific pain in his little toe. The primary doctor, a family medicine physician, diagnoses musculoskeletal pain and orders an x-ray.
Two days later, not having heard about the x-ray results, Billy’s mom calls the office to ask about the results, to report that Billy’s little toe is now falling asleep, and to advise that BIlly remains in a lot of pain. The office advises that the doctor is out for the day, and they will obtain the results and follow up the following day. The next day, the x-ray results are reported as negative, and due to Billy’s pain worsening, an appointment is made for that day. By this point, Billy needed crutches to ambulate and was developing redness on his foot. The doctor diagnoses cellulitis and makes an appointment for Billy to see an orthopedic doctor the following morning.
The next morning, the orthopedic doctor sends Billy to the hospital where, after a few hours, his foot turns cold and blue. He is diagnosed with an arterial clot. His foot is not salvageable. Not long after, his foot is amputated at the ankle. Billy now has chronic pain and skin breakdown, along with significant disability as an amputee.
Billy sued the ER doctor, his group, the family medicine doctor, and her group. The verdict was $32.7M.
Teaching points:
- Using flip charts and the defendants’ testimony to break down hard-to-understand medical concepts into easy-to-understand principles that will compel your jury;
- Attacking the “but the diagnosis is so rare” and “common things are common” defenses;
- Attacking the “but look how many doctors reasonably believed the cause was something else” defense;
- Exposing the Defendants’ inconsistent causation and standard of care theories;
- Theming in a way that mirrors your evidence;
- Creating the halo effect for the Plaintiff; and,
- Non-economic damages where there are limited economic damages in evidence and a Plaintiff with limited social interaction.
