My Longest Trial

Lee S. Goldsmith, M.D., JD

As a client, you put your case into the hands of an attorney and hope he/she has the experience and stamina to follow through with the commitment made to you when you first met. Too often your legitimate expectations are not met with reality. There are many attorneys with flashy websites or television commercials whose objective is to get cases and with volume make a great deal of money for themselves. The clients get short changed. 

We as attorneys earn our greatest income from settling cases, not trying the case in court. Trials are time-consuming and if the case is lost, the attorney has not only lost time but has earned no income. More malpractices cases are won by defense attorneys for the physician than are won by the plaintiff for the patient. There are many reasons for this, which I will explain in a future blog.

Taking a case to trial is important. If there is no offer to settle or a minimal offer to settle, there may be no alternative. A trial is important because it tells the insurance company that you will not sell your clients out for a minimal sum. A trial is important because it costs the insurance company money and they learn that your attorney is a fighter. Finally, a trial is important because if you win, the insurance company is hurt twice: the expenses of the trial and the expenses of the verdict.  

My longest trial was three months.  t started in the first week of January and ended during March Madness. 

My client was 27 years of age and a father of two children. He entered the hospital to have a heart valve replaced and he went through the surgery without a problem. A few weeks at home and he suddenly had severe pain in his chest. His wife immediately took him back to the hospital and he was rushed to surgery. His valve had come loose. The stitches had broken. His chest had to be re-opened and a new valve placed. Post-operatively he developed an infection and remained in the hospital until he died. 

There were five defense counsel, representing the surgeon, the cardiologists, the hospital, the valve manufacturer and the suture manufacturer, against me. This trial was me against a cardiovascular surgeon, two cardiologists, Montefiore Hospital, Ethicon, a division of Johnson & Johnson, and Medtronic. 

It took us one week to select a jury. The judge had never tried a malpractice case, let alone a product liability case while on the bench. This was his first. We lost a couple of days for snow. We lost time one day as we entered the courtroom, someone had left the windows open; the courtroom was freezing. Every one of my witnesses was cross-examined by five attorneys. Every motion that could be made was made and the inexperienced judge was slow in his rulings, at times delaying for hours. 

The jury received the case and started deliberating on a Friday. March Madness was in progress and the judge brought the jury back to deliberate on Saturday and he sat in chambers watching the games. 

The jury continued deliberating on Monday and reached a verdict for the plaintiff on Tuesday.