Arrogance as evidentiary gift.

Although many doctors are humbly dedicated to their life's work, some believe they are much smarter than us feeble-brained lawyers. That, in my experience, holds especially true for defense witnesses who righteously proclaim at the end of their direct examination, "Actually, I am not being paid anything for my time in this case.

This was just something I had to do when I saw such a baseless case."

I'll remember one such self-righteous expert for a long time. On Christmas Eve, my clients had come to my office: the elderly parents, two brothers, and spouse of Mark Alexander. Mark was in a coma, and they had been told he would not survive another week. Three days earlier, Mark had gone to the hospital for outpatient, arthroscopic shoulder surgery. Everyone expected him to be home by 3 p.m. the same day. But something had gone horribly wrong.

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We found that the written anesthesia record failed to record any vital signs for the final 30 minutes of the procedure.

The surgeon testified that he was approximately an hour into the surgery when he felt a fluttering under the surgical drapes. He stepped back and found the certified registered nurse anesthetist (CRNA) under the table holding a stethoscope.

She said, "Doctor, I don't think I am getting air in one lung." He pulled back the drapes to find Mark blue--cyanotic from head to torso. A code was called and Mark's heart was started, but the brain damage was deep and permanent. Mark died two weeks later.

We claimed an improper intubation went unnoticed, leading to respiratory arrest, which also went unnoticed for 20 minutes. The defense alleged that Mark had suffered a spontaneous (coincidental) heart attack while under anesthesia. They also claimed that it was immediately-identified and that Mark went without circulation for no more than three minutes.

The anesthesia record showed that Mark's vital signs, which were normal, had been taken every five minutes for 45 minutes--after that, the record was blank. We discovered that the supervising anesthesiologist had been in the operating room only five minutes, long enough to disable the alarms on the monitoring equipment that sound when vital signs fall out of the normal range. She spent the rest of the surgery in

the coffee bar while the CRNA attended to the patient.

We also obtained the printout of vital signs digitally stored within the electronic monitoring equipment used to measure blood pressure, pulse, and oxygen saturations during the surgery. The problem was that the clock setting in the monitoring machine was 20 minutes off from the actual time. The defense claimed that the clock was correct and that the printout proved that Mark lost a pulse within minutes of the code.

To establish that the monitoring strip showed that Mark had lain on the table for 20 minutes without a pulse, we developed a large demonstrative exhibit that had three movable bars of data. One bar of this "slide rule" showed time, and the other two showed Mark's recorded vital signs. By shifting the time bar by 20 minutes, we were able to show that Mark indeed was pulseless 20 minutes before any action was taken.

The exhibit was important, but the judge considered it to be hearsay, something we had created and for which no predicate could be laid to show that it was factual or not misleading. While demonstrative, it would not go back into the jury room--that is, until I got to cross-examine my arrogant new friend, the defense anesthesiologist.

He had a copy of the exhibit in his file, and I asked if he would find our exhibit helpful to his testimony. He could not help but one-up my invitation:

A: Not only do I find your exhibit helpful to my testimony, I have relied upon it in coming up with my opinion that there was no negligence.

Q: Well then, you agree this exhibit would be of assistance in the jury's deliberation.

A: I certainly do.

Q: And since it's a basis for your opinion here, you obviously think it has a sound factual basis.

A: I think it does.

Q: Surely then you don't object to it being used by the jurors themselves.

A: I would encourage it.

We reoffered the exhibit, the defense could not object, and it was admitted.

After returning a substantial verdict in the Alexander family's favor, every juror told us that the exhibit was the key to understanding the case. They unanimously agreed that, sliding the rulers and matching the times, it was clear that the CRNA had ignored a pulseless patient while her alarms were silent.

My only skill was allowing the doctor's arrogance to trap the defense. His demeanor was typical, but his mistake was underestimating the common sense of the jury.

JIM M. PERDUE JR. is a partner in Perdue & Kidd in Houston.