When the rules change.

"I am reversing my earlier ruling. Evidence of cocaine and alcohol in the plaintiff's system at the time of his admission to the hospital will be admitted on the issue of proximate cause only."

After several minutes, my heartbeat returned to a normal rate, my respirations deepened, and color returned to my face. The court's ruling posed a serious threat to our chances of success.

Being able to handle the unexpected is vital for a trial attorney. The experienced attorney must be able to handle each twist and turn of a case. In this instance, the challenge before me was considerable.

The ruling came in the middle of the second week of a five-week-long medical malpractice case. Before trial, my motion in limine had successfully excluded the defense expert's opinion that my client's quadriplegia was due to a cervical spinal cord infarct caused by cocaine and alcohol. This ruling influenced my voir dire, opening statement, and examination of the first six liability witnesses.

With this new ruling, each lawyer was walking into uncharted land without a compass. My worst fears had become a reality; the rules had changed.

Before proceeding further, I should note that the case was tried before an experienced and knowledgeable judge. He had been both patient and fair to each side. His pre-trial ruling was based on the deposition of the defense expert and the medical literature the expert relied on. Following a videotaped offer of proof by defense counsel, which the judge viewed over the weekend, he changed his opinion.

The expert provided new literature and offered a more detailed explanation of his theory. The judge ruled that there was a sufficient foundation to overrule my objections of speculation and admit the testimony. No fault can be placed at his feet.

My client, Andy, was a 28-year-old unemployed male who lived with his mother. In 1992, he was a passenger in the backseat of a car. The driver lost control, the car rolled over, and Andy was thrown out.

Paramedics were on the scene in minutes and immobilized Andy's cervical spine with a hard collar, sandbags, and tape. Andy was brought to a Level I trauma center. In the emergency room, he had sensation, reflex, and full motion of all extremities. His spinal cord was not injured.

Following appropriate protocol, the trauma surgeon ordered cervical spine plain films. The films, however, could not clear the C-1, C-2 area as free from injury and did show a questionable C-7 fracture.

Because the films were insufficient to exclude an unstable cervical spine, a cervical spine CT scan was ordered. In addition, because Andy had lost consciousness at the scene and suffered head trauma, the trauma surgeon ordered a consultation by a neurosurgeon.

The neurosurgeon testified that he saw Andy before he had the CT scan. In the neurosurgeon's opinion, the plain films showed the cervical spine as stable, and his examination showed no significant head injury. He indicated that there was no need for neurosurgical intervention and that he would follow up as needed.

But the CT scan told a much different story. It showed signs of several fractures at the same level, which were recorded in the progress notes. Unfortunately, the typed radiology report was not placed in the chart for seven days.

The trauma surgeon failed to recognize the contradictory findings of an unstable cervical spine on a CT scan and a stable cervical spine by the neurosurgeon. Yet, the trauma surgeon never questioned the neurosurgeon about this conflict and never called the radiology department to get the written report or listen to the report on tape. For his part, the neurosurgeon failed to review the CT scan and the notes of its result and so found the cervical spine stable. He based this conclusion on the cervical spine plain films.

With the apparent approval of the neurosurgeon, the trauma surgeon ordered that Andy remain in a soft cervical collar, a clear violation of the standard of care for a patient with an unstable cervical spine. Two days later, an orthopedic surgeon examined Andy for shoulder pain. He noted that there were significant neurological changes in Andy's upper extremities and that the soft cervical collar was not in place. The surgeon immediately ordered a neurosurgical consult.

A repeat MRI scan revealed severe injury to the spine and impingement of the spinal cord.

At the conclusion of discovery, the hospital produced a neurosurgeon as an expert. This neurosurgeon said that cocaine and alcohol in Andy's system caused a vascular event 52 hours after the accident, which caused quadriplegia.

Before trial, as mentioned earlier, I had filed a motion in limine to exclude the neurosurgeon's opinion. The primary basis of my motion was that the opinion was speculative. The neurosurgeon had never treated someone with quadriplegia as a result of a vascular event caused by cocaine and alcohol and had never heard of or read of this occurring. Also, the literature he provided at his deposition did not support his conclusion. The trial court had agreed with this position, ruling that an expert cannot offer opinions that education, experience, or medical literature do not support.

With the change in the trial court's opinion, I faced a new dilemma. The jury would now hear that Andy had used cocaine and alcohol. Although the evidence was being admitted on the issue of proximate cause, my primary concern was one of damages. I feared the jurors might be prejudiced against Andy because of his drug use.

To counter this evidence, my co-counsel, Dan Kotin, and I developed a strategy in which we asked the court to tell the jury about the cocaine and alcohol. We asked for limiting instructions to inform the jury that evidence of use of these substances may be admitted on the issue of causation. Also, we asked the court to tell the jury that this evidence was not produced earlier because of previous rulings by the court and that neither side was holding back evidence from the jury by not disclosing the information earlier. The trial judge did give these instructions. Although a limiting instruction tends to highlight the damaging evidence, we felt it was more important to show the jury that we did not withhold information.

Our second step was to introduce the potentially damaging testimony as soon as possible. We used a trauma expert to introduce the issue of standard of care. At the end of my direct examination, we brought the issue of cocaine and alcohol use to the expert's attention. We questioned him about his training and experience on the presence of cocaine and alcohol in trauma patients. Despite 20 years of practice in Level I trauma centers, he had never seen or heard of a case where cocaine or alcohol caused a spinal cord infarction 52 hours after the last injection of the drug. We took the same approach with our neurosurgical expert.

The defense attorneys did not challenge these opinions. Their primary purpose, in my opinion, was to let the admission of cocaine and alcohol smear Andy. The smear was directed at damages, not proximate cause. The defense was happy that we had to discuss the issue in front of the jury.

The final step in our strategy involved cross-examining the hospital's neurosurgical expert. We had three goals. We wanted to establish that Andy had an unstable cervical spine that was not immobilized and that he suffered a cord injury; to discredit the expert; and to attack his causation opinion.

We established through the X-rays, CT scans, and radiology reports that Andy was admitted to the trauma center with an unstable cervical spine and that he was able to move all his extremities at admission. We used the defense expert to show that the danger of an unstable cervical spine is future movement, which may result in spinal cord impingement, and that to prevent this catastrophe from happening, immobilization is required. This was our theory of liability and causation. Despite objections from the defendants, the trial court permitted us to explore implicitly the issue of standard of care while technically speaking of only causation.

The defense neurosurgeon conceded that appropriate care required immobilization of the neck. In this case, use of a soft, cervical collar was not appropriate.

A key point in the cross was to demonstrate that an MRI showed damage to the spinal cord and movement of the spinal support structures. These findings could not have been caused by a cocaine- and alcohol-induced vascular reaction.

Having established all the points that would support our opinion, we began our adverse cross-examination. Our starting point was the expert's credibility. He had testified in hundreds of depositions and trials, many times for the defendant hospital and the defense law firm. We also pointed out that he had not been given all the records in the case. In addition, we highlighted a mistake he had made in direct examination.

At this point, I felt the jury was ready to hear our cross-examination on cocaine and alcohol. I had the witness reestablish that he knew of no cocaine- and alcohol-induced vascular reactions that damaged the spine.

I then established indirect impeachment of his theory. We identified each physician who had examined Andy during the years after his injury. I gave the expert those physicians' records and had him agree that each had not reached any diagnosis remotely similar to his.

I then established that the cases in the literature the expert referred to involved large doses of cocaine taken in a short period of time before the infarct. The expert could not identify when Andy had used cocaine and alcohol, how much he had used, how much cocaine and alcohol was present in Andy's bloodstream on the day of the collision, and, therefore, how much was still in his bloodstream 52 hours later.

After the cross-examination, I knew the issue of proximate cause would not be a problem. I was still concerned with the jury's impression of Andy.

In closing argument, I emphasized the liability of the parties. If the jurors could be convinced that the defendants' negligence was unacceptable, they would focus less on Andy's cocaine and alcohol use. I made no attempt to apologize for Andy. A person who has made mistakes, even mistakes that threaten his own health, is entitled to the same level of care as any other person who enters an emergency room.

After a day and a half of deliberations, the jury returned a very substantial verdict in favor of Andy. I will never know, however, the impact cocaine or alcohol may have played on the issue of damages.

Kevin Burke practices in Chicago.