Charles A. Pilcher MD FACEP
A few years ago I was asked to review a case involving a death that occurred less than 24 hours after hospital discharge.
In a phone call with the attorney, the case seemed to have merit. I agreed to take a look at the records and was sent a brief synopsis and excerpts from the records.
The information I was provided painted the defense in a horrible light: failure to address past medical history, failure to follow up on abnormal labs, near fatal doses of a medication given with almost no indication, what appeared to be a premature discharge of a vulnerable individual with little or no follow up plan or caregiver education, etc. I agreed that things looked bad for the defense and agreed to help this attorney and client.
The attorney immediately named me as the plaintiff expert and sent me additional records. The second set of records, still incomplete, revealed some possible explanations for the “errors” that I noted in the preliminary excerpts. The record was still incriminating, but now some additional dates, times and notes by caregivers suggested that they were indeed concerned about the patient’s welfare and not dismissing the patient’s complaints out of hand.
I explained to the attorney that case did not look as strong as it did in the first excerpts, but still appeared to have some merit.
We proceeded onward, despite my discomfort. It seemed there was more to the story.
A few weeks prior to trial (the case was in another state that does not have the pre-trial discovery process with which I am familiar in Washington State), I was sent some additional information. Upon reviewing this, I could see that the attorney – and I as the expert witness – had an uphill climb.
I arrived in the trial city the day before the trial, met with the attorney and co-counsel, and again expressed my concerns. “Well, we start trial tomorrow, so let’s just see what happens,” was the response.
That evening – less than 12 hours before the start of trial – I received an unforgettable phone call from the attorney. I was told “There’s just a couple more pages from the record. It’s a statement from the patient’s caregiver. I thought it might help.” Anticipating that this would clearly indicate negligence on the part of the defendant(s), I obtained a copy of the new documents and reviewed them immediately.
Much to my shock, the caregiver described in great detail picking up the patient at the hospital, how “great” the patient looked, receipt of excellent aftercare instructions, and a pleasant and normal evening at home including dinner. The caregiver’s surprise – even shock – at finding the patient extremely ill the next morning was apparent. This seemed to deal a death blow to the plaintiff’s case, and I so informed the plaintiff attorney.
I arrived at the courthouse the next morning worried less about my testimony than about the grilling I would get from the defense. I’m not one to stretch the truth just to be on the winning side, and this turned out to be the worst nightmare of my career.
The defense prevailed.
The lessons I learned were these:
- A complete medical record is a must — including all statements of all parties with any information to offer, especially in a state with no pre-trial disclosure, discovery, or depositions
- If uncomfortable, be candid and ask questions about the background of the case. When something doesn’t feel right, it often isn’t.
- An experienced med mal attorney – defense and plaintiff – is an asset.
- Keep telling the truth. It’s the jury’s job to sort out the facts.
- Winning isn’t everything.