A client recently asked me about my trial experience and the question gave me pause. Yes, I have tried cases in New Jersey, in about nine different counties and in New York, in seven different counties. However, I have also tried cases in North Carolina, Virginia, District of Columbia, Illinois and have worked on cases in Alaska, Pennsylvania and currently in Montana. Some medical malpractice, some involving physicians and their privileges and the last to represent a clinic defending itself against a major railroad because they have found asbestos-related cases.The railroad would have to pay major dollars if it lost.
The concept of medical malpractice is basically the same, evolving out of an 1896 decision in the New York case of Perlmutter v. Beth David Hospital, which has set the standard. That standard has been applied with few changes across the country. What is different is how a jury may be selected and how the case may be handled. There have been times when the “foreigner” is not warmly received by a local judge.
This and the next issues of this blog will discuss some of these cases. No trial attorney has ever won all of his cases and I am no exception; but I have been privileged to have had the experience, and have won far more often than I have lost. One only stays in this practice if they have found success.
I watched “To Kill a Mockingbird” recently, which takes place in a rural courthouse One case I tried was in rural North Carolina. My client was paraplegic. The courtroom was on the second floor of the courthouse and there was no elevator. Each day he had to be carried up the stairs in his wheelchair. Fortunately, the sheriff’s office took pity on me and carried my client up and down the stairs. This had a tremendous impact on the jury. The jury could see the extent of the impact that the malpractice had on the patient resulting in his paralysis. The jury realized how much I cared, as did the entire sheriff’s department. He worked as a dispatcher for the county sheriff before the accident. The malpractice was that the patient had been in an automobile accident and was thrown from his car. When the paramedics arrived, they lifted him to place him on a board and pushed broken pieces of vertebra into his spinal cord. The judge was absolutely impartial, and the trial was fair, and a settlement was reached.
That was the exact opposite of the first case I tried. It was in Oxford, North Carolina. It started with our picking the jury. The first juror in the box indicated that he knew the defendant surgeon and was scheduled to undergo surgery with the defendant “next week after we are done with this here case.” I asked the judge to excuse the juror. The judge asked the juror: “Are you going to be fair and honest in this here case?” And the juror responded: “Yes, yer Honor.” We ended up having six patients of the physician on the jury. The case was lost before it started and was reversed on appeal. Our client died in the interim and no further action was taken. However, I learned so much from this case. The defense attorney was seasoned and had many trials under his belt. Frustrated as I was, I learned from his tactics and use them to this day.
Another case lost and reversed on appeal. Brooklyn, New York this time. We picked a jury and then we were referred to a judge. While walking to the courtroom, I met a colleague who asked me the name of the judge to whom we had been assigned. I gave him the name and he looked at me and said: “You lost.” I was shocked. The attorney informed me that no plaintiff wins a malpractice suit before that judge. Lose, appeal and come back and you will be successful. That was the scenario. Our case was dismissed after I placed our expert on the stand and the judge for a nonsense reason would not allow him to testify. The Appellate Court reversed in a one-line decision. We won the second time around.
Lesson learned: If you think that your client is right, if you think that your cause is right -- you fight.