Combating standard defenses in medical cases: a multilevel approach.

You can almost always count on a few standard defenses in certain medical negligence cases. Defendants frequently claim that the plaintiff's injuries resulted from a preexisting condition, that a timely diagnosis could not have prevented injury, and that a doctor who saved a patient's life should not be held liable for later negligent conduct.

To successfully overcome these defenses, you need to plan a strategy that begins at voir dire and continues through summation. Choosing jurors who will see these defenses for the smoke screens that they are and who will be receptive to evidence that the plaintiff has suffered compensable injury is just the beginning. You must persuade jurors during opening statement that the evidence will prove that the defendant owes a debt to the plaintiff. And by the end of your summation, the jury, must be convinced that you have done what you said that you would do.

Preexisting Condition

The defense will commonly, assert that a preexisting condition caused the plaintiff's current symptoms or that the symptoms of a preexisting condition cannot be distinguished from those of the injury resulting from the defendant's conduct. The very same causation problems arise when the plaintiff claims that the defendant's conduct aggravated a preexisting condition.

Combat this defense during voir dire by securing a commitment from jurors that they will assess damages only for the injuries caused by the defendant and not for any preexisting conditions. Explain that to do otherwise would be unfair to the defendant. Point out, however, that it also would be unfair to the plaintiff to minimize the damages caused by the defendant simply because of a preexisting condition.

In opening statement, acknowledge any preexisting condition that your client does have md clarify what damages are being claimed. For example, where improper surgery was performed in an attempt to correct a congenital defect, you might say something like the following:

At the conclusion of this case, we will ask you to assess damages only for those problems resulting from the wrong surgery performed by Dr. Smith and for the complications resulting from that surgery. Sarah Jones is not entitled to damages for the congenital defect that Dr. Smith failed to correct with his improper surgery, nor is she entitled to the damages for the surgery performed when Dr. Coleman subsequently corrected the congenital defect with proper surgery.

Likewise, if you can separate the damages the hospital nurses caused from the damages that Dr. Smith caused, please do so, because we want to be fair to every party involved in the litigation.

During trial, through the testimony of the plaintiff and the treating physicians, clearly distinguish between symptoms of preexisting conditions not claimed as damages and injuries sustained as a result of the defendant's conduct. When appropriate, use treating physicians to explain how your client's preexisting conditions may have been worsened by the injuries caused by the defendant.

This evidence can then be given the stamp of judicial approval by an instruction on the "Thin Skull Doctrine" when appropriate. This doctrine, which has been adopted by many jurisdictions, provides that a jury cannot lessen an award of damages because a plaintiff's physical frailties made him or her more susceptible to injury. (See, e.g., Schafer v. Hoffman, 831 P.2d 897 Colo. 1992).) The doctrine originated in England in a case describing plaintiff who had an "eggshell" skull - the plaintiff died from blows to the head that should have caused only minor head injuries.

The "Thin Skull Doctrine" instruction can be used in any case in which a plaintiff was more susceptible to injury (for example, if the plaintiff had scoliosis or a predisposition to neurosis). The doctrine applies even if the defendant could not have foreseen that the plaintiff's frailty would worsen die injuries the defendant's conduct caused.

During summation, you might say something like the following:

Defense counsel would have you reduce the amount owed to Jane because she was not in perfect health when the defendant caused her injury. Let me ask you this: Who is more seriously injured by the loss of an eye - the person who had two eyes when the injury occurred or the person who had only one? Who is more seriously injured or damaged by the loss of a leg - the person in good health who had two legs when the injury occurred or the person who had only one?

This injury was more devastating to Jane than it would have been to a healthy person. Consequently, the defendant's debt to jane is far greater than it would have been had he inflicted this injury on a healthy person. The law recognizes this distinction, and you have been instructed in this case by the judge to enforce the law.

So What?

When a lawsuit is filed because of a late diagnosis and treatment of a terminal illness, such as heart disease or cancer, the defense can often be summed up as follows: "So what? The plaintiff would have died anyway, and the defendant did not cause the underlying illness." This defense is often supported by expert medical testimony that the delay in diagnosis did not make a difference in the treatment rendered or in a reduced life expectancy.

Address this defense at every stage of trial. Use voir dire to identify prospective jurors who would react unfavorably to the plaintiffs claim. To identify them, inquire about each juror's experience with and knowledge of the disease in question. In a cancer case, for example, ask each juror if he or she knows about cancer from personal experience, from the experiences of relatives or friends, from literature or studies about cancer, or from any other source.

If there are jurors who have had experience with cancer, ask what type of cancer was involved, what stage it was in when diagnosed and treated, and whether the treatment was successful. Then, ask questions like the following:

From your own knowledge or experience with cancer, do any of you believe that cancer of the breast is an incurable and untreatable disease? Mr. Juror, what is the basis of that belief? How strong is that belief - is it a belief that is so strong that you could not listen with an open mind to medical testimony to the contrary?

Mr. Juror, what if all of the doctors who testify in this case agree that an early detection of breast cancer and an early treatment of breast cancer can make a difference in the outcome? Would you still have any doubt about that proposition?

In addition to detecting juror bias, it is important to establish a theme, at the outset, that early detection and treatment of breast cancer can prolong and save lives. When dealing with damages, explore the jurors' reactions to prolonging the life of a terminally ill patient. This gives you valuable information about jurors' attitudes about the value of life.

You will also want to detect their attitudes about assessing damages if the injury is the loss of a percentage chance of living a full life. For example, you may want to say something like the following to jurors:

Ladies and gentlemen, in this case, you will hear evidence that if the plaintiff's cancer had been detected and treated one year earlier by Dr. Brown, she would have had better than a 50 percent chance of living a full life. However, because it was not detected earlier, she now has less than a 50 percent chance of living 5 years, and she only has a 5 to 10 percent chance of living a full life.

Do any of you believe that you would be unable to assess damages because no one knows how long the plaintiff will live? Ms. Juror, why are you troubled by this? Why would you find it difficult to assess damages? Do you all believe that a person should not be deprived of a 100 percent chance of living a full life because of another's negligence?

What if someone, through their conduct, reduces your chances of living a full life by 90 percent, so that you only have a 10 percent chance of living a full life? Do any of you believe that the wrongdoer should not pay for depriving a person of a 90 percent chance of living a full life?

Is there anyone here who believes that a person who has cancer is destined to die because it is God's will or that the medical profession should not interfere with a disease like cancer? How many of you believe that treatment of a disease like cancer only prolongs pain and suffering? Mr. juror, what is the basis of that belief. Why do you feel that way?

Is there anyone here who has never gone to a doctor for an illness, disease, or injury? For those of you who have gone to a doctor, did all of you expect the doctor to exercise his or her best skill and knowledge in caring for you and in treating your condition?

In opening statement, carefully explain how the delay in treatment resulted in damages that the plaintiff would not have incurred with timely detection and treatment. For example, comments like the following may be effective:

Because Ms. Dean's cancer was detected six months late and it had already spread to the nodes, it was necessary that she undergo radiation therapy and chemotherapy. Her oncologist explained to her that this therapy would make her unable to have children safely and that she should have her tubes tied to prevent pregnancy. She was also told that there was a 60 percent chance she would die within five years.

Ms. Dean was engaged to be married at that time and wanted to have children, and, upon hearing this news, she and her mother sat in the car outside the medical center and cried.

Ms. Dean's oncologist will explain that the chemotherapy causes a hormone imbalance that would endanger her life if she became pregnant. She can never take birth control pills or hormonal drugs again because they increase the risk of cancer recurrence.

Ms. Dean had radiation therapy and chemotherapy for 32 weeks, lost her hair, suffered extreme nausea, and lost her energy and strength. All of this would have been unnecessary had the cancer been detected six months earlier by Dr. Brown.

During trial, use expert testimony to establish that the disease probably advanced during the delay in treatment and that if earlier treatment had been rendered, the patient could have been cured or the disease placed in early remission. Also, use expert testimony to show that early diagnosis allows more conservative treatment and less long-term damage or injury.

To help show the increased fear of cancer recurrence or death resulting from a late diagnosis, consider calling a psychologist or psychiatrist whose expertise is in treating cancer victims. These experts can testify that most cancer patients with a good prognosis can bounce back and get on with their lives, while patients with a poor prognosis are unable to do so because of their expectation of recurrence and fear of death.

In summation, defense counsel win often support the "so what" defense by arguing that since no diagnostic testing was done when the doctor first saw the patient, the plaintiff cannot now prove with 100 percent certainty the condition of her cancer when she first complained of symptoms. Therefore, the defendant will claim, the plaintiff cannot prove that a delay in diagnosis and treatment of the cancer allowed a substantial progression of the disease.

Combat this argument on summation with an argument like this:

Although our expert witnesses could not tell you with 100 percent certainty what the condition of Ms. Dean's cancer was when she first complained to Dr. Brown, they have rendered opinions on what her condition probably was at that time and why they believe the cancer substantially progressed before it was finally diagnosed.

Had Dr. Brown acted responsibly, the tumor would have been removed one year earlier, the nodes would have been examined, and we would know with certainty the extent of the cancer. The plaintiff was deprived of that opportunity by the defendant's negligence. Dr. Brown should not be permitted to now say, "I did no diagnostic testing or follow-up care, so you cannot prove what the plaintiff's condition would be today if I had treated her one year ago."

Consider using a variation of that same approach during summation in a heart disease case. Use the following as a guide:

Defense counsel tells you that Mr. Garcia would have died anyway. He tells you that Mr. Garcia's heart disease was so severe that he didn't have long to live. He tells you that it doesn't matter that his client was negligent in failing to diagnose and treat Mr. Garcia's heart condition.

But the expert witnesses unanimously agreed that Mr. Garcia might have lived a full life had he been properly treated. He had a 1 to 25 percent chance of living a full life. We don't know whether he would have lived a full life because he was robbed of that opportunity by the defendant's negligence. If Mr. Garcia were here to speak and to testify, I am sure that he would tearfully state, "It would not have happened to me. I would have lived." Give him the benefit of the doubt. He deserves at least that.

`I Saved a Life'

Defense counsel will often tacitly try to defend a medical negligence claim with evidence that the defendant physician saved the plaintiffs fife and, therefore, should not be held responsible for a negligent mistake made during follow-up treatment. This argument is intended to gain sympathy for the doctor, to focus the jury's attention on the doctor's heroic conduct, and to divert attention from the doctor's later negligent conduct.

To combat this defense, file a motion in limine seeking to prevent defense counsel from focusing on the irrelevant nonnegligent conduct. Argue that the prejudicial effect of this evidence outweighs the probative value. Emphasize that the evidence is being offered only to gain sympathy for the doctor.

Similarly, file a motion in limine to prevent any reference to procedures that the doctor performed on other patients. Argue that evidence that the physician was not negligent before is not admissible to show that the doctor was not negligent on this occasion. Again, argue that the potential prejudicial effect of this evidence far outweighs its probative value.

If the court denies the motion in limine, confront the "I saved a life" defense head-on in voir dire. Identify those jurors who would be inclined to excuse the negligence because the doctor saved a life.

One way to detect this bias is to present the evidence in the fight most favorable to the defense and ask detailed questions about each juror's attitude about that evidence. For example:

My client, Pete Smith, had a car accident because he was driving while intoxicated. He was brought to the hospital by ambulance, and Dr. Jones came to the hospital from his home in the middle of the night and saved my client's life. We allege that, at a later date, Dr. Jones was negligent in treating Mr. Smith.

It would be natural for some people to assume that if you save a person's life you should not be held legally responsible if you later negligently injure that person. Mr. Juror, how do you feel about that? How many of you feel that a doctor who gets out of bed in the middle of the night and saves a life should be legally excused if he later causes injury to the person whose life he saved?

Conduct further voir dire to minimize the impact of the doctor's role in saving the client's life. For example, you might ask the following:

Do you believe that anyone who saves a person's fife should then have a legal right to negligently inflict injury on that person? Mr. Juror, do you believe that a police officer who saves woman being threatened by an armed intruder should have a legal right to later negligently injure that woman? If the officer is later driving the woman somewhere for her protection and runs a red fight and the police car collides with another vehicle, causing serious injury to the woman, should the officer be protected from a lawsuit because he earlier saved her life? Do you understand that police officers, like doctors, are paid to save lives, although doctors may earn considerably more money for doing so?

If the court should instruct you that saving a life is no defense to negligence, would you be able to follow the court's instructions? Or would you be unable to do so because of the feelings you have expressed?

If no one in our society is excused from negligently injuring someone whose life they had earlier saved, should an exception be made for doctors - should they be treated differently? Do any of you believe that doctors are somehow above the law that applies to everyone and that they should be immune from lawsuits simply because they are doctors?

The "I saved a life" defense can also be forthrightly addressed in summation. For example:

I get tired of hearing how doctors save lives and therefore should never be sued. What does that have to do with this case? I suggest the defendant is trying to play on your sympathy, contrary to the court's instruction and the law. Besides, doctors are paid to save lives and, in this case, they were handsomely paid and now have the legal obligation to pay the plaintiffs for the damages caused by their negligence.

To combat standard defenses in medical cases, it is necessary to use trial strategy to implement a well-conceived plan. That plan should make effective use of every stage of the trial and, where appropriate, motions in limine.

Ask yourself how you can use each segment of the trial to combat the defense's strategies while, at the same time, minimizing the weaknesses of your case. Be creative work hard, and you will achieve success in combating standard defenses in these cases.

William A. Trine is a partner with Williams & Trine in Boulder, Colorado.