Professional Liability: How a Trial Lawyer Prepares a Medical Malpractice Case for Trial Joseph D. Jamail Jamail and Kolius, Houston, Texas

Introduction by Thomas D. Bartley, MD Our next speaker was to have been Joseph Jamail, a plaintiff’s attorney from Houston. He had airplane problems and got no closer to Chicago than the Houston Hobby Airport. He did FAX his talk here, and 1am going to read it to you. Many of you will find things to question in it, and so perhaps you could send those to me or to Dr Anderson in the form of letters, so that we can at least respond to some of the remarks that M r Jamail makes in this presentation. 1 am really sorry that he cannot be here. W e need to have the other side of the picture presented, which is what we intended when the committee thought of M r Jamail. He is an extremely colorful individual. He has become infamous, famous, or notorious through his tremendous representation of Pennzoil

against Texaco, as the lead attorney for Pennzoil in a case that resulted in afive hundred million dollar attorney fee. A book has been written about him. Three other books have been written about the Pennzoil-Texaco thing, and Joe is full of stories about this and other experiences in his legal career. He is a native Texan, the third generation of a Lebanese immigrant family. He speaks with a deep Texas drawl and uses flamboyant gestures and lots of colorful language, and 1 am sorry that he could not be with us this afternoon. 1will not be able to do his talk justice but I will do my best to read it to you so that you can understand it. The title is “Professional Liability: How a Trial Lawyer Prepares a Medical Malpractice Case for Trial.“

M

school of medicine says it is a case. I do not believe in filing an action against a physician before securing the opinion of a competent medical doctor that the defendant physician was negligent. Let me stop here and say that ”medical malpractice” is nothing more than negligence. Doctors are not held to any higher standard when they are performing surgery than when they are driving their car on the highway. Negligence is nothing more than a failure to act as a reasonable person under the same or similar circumstance-whether on the highway or in the operating room. Expert testimony from another physician is necessary in a medical negligence case simply because a layman is not competent to evaluate what is reasonable in the operating room. So, that is the first step in any medical negligence case that comes to me: consult an expert. A consulting expert must review all of the medical records before rendering an opinion. When evaluating a medical negligence case, every physician, hospital, nurse, clinic, or pharmacy that came into contact with the patient must be identified and records must be ordered for the consulting expert’s review. Only after a complete review of all applicable medical material can a consulting physician give an informed opinion on the medical negligence of one of his or her fellow physicians. A careful, competent trial lawyer will make sure that the consulting expert physician has had the benefit of all the facts. A careful, competent trial lawyer will make sure that the credentials of the consulting expert are impeccable. I would like to give you a short list of some actual quotations taken from notes of lawyers in my offices from inquiries from patients:

y topic is a trial lawyer’s perspective in the area of medical malpractice. I have been asked to enlighten you on the preparation and research that goes into the preparation of a medical malpractice case when it is properly conducted. Of necessity, you will hear the views and perspectives of a trial lawyer who has, for the past 30 years, represented injured people, bereaved people. I do not specialize in medical malpractice litigation, and never want to. A medical malpractice case is always a tragedy. Never is the plight of an injured person or a bereaved parent more wrenching than when it arises out of the action or lack of action of a physician, physicians, or a hospital. The physiciadpatient relationship only operates where there is trust and confidence. When trust and confidence have been breached, many emotions are released. For this reason, patients can be quick to call a lawyer over their doctor’s performance and a good trial lawyer must realize that not every call is a case. I really wish I could tape record my office phone for a week and play it for you. My office receives hundreds of calls every week-many of these are people who want to sue their doctor. Only one in fifty of these calls deserves a further look, and much less than that merit the filing of a medical malpractice action. The very first rule in my office is: No medical malpractice case is a case unless a medical doctor of the same Presented at the Interim Meeting of The Society of Thoracic Surgeons, Chicago, IL, Sep 21-23, 1990. Address reprint requests to Mr Jamail, 3301 Allen Center, Smith at Dallas, Houston, TX 77002. 0 1991 by The Society of Thoracic Surgeons

Ann Thorac Surg 1991;52:3624

0003-4975/91/$3.50

Ann Thorac Surg 1991;52:3624

“A doctor treated me for multiple sclerosis for nine years and now I am told I never had it.” “I had surgery on my lower aorta. As a result, my vocal chords were cut, I have no control over my bowels, I cannot walk, and my skin burns all the time.” “They amputated my father’s wrong leg.” “A kerlix gauze was left in my pelvic area.” “A sponge was left in my stomach.” (those are the easy ones. . . . .) “My father suffered a stroke and is brain damaged because air was injected into him during carotid angiography testing.” “The emergency room doctor did not recognize that my child had epiglottitis before my child stopped breathing and died.“ Finding the proper medical expertkonsultant to determine if there has been medical negligence is both the first step and the most difficult aspect of preparing a medical malpractice case. The fundamental purpose to be served by expert medical testimony is to prove that there was a departure from the proper and accepted standard of medical care and to prove that the injuries sustained were proximately caused by such departure. Whenever possible, my first step in securing an expert medical consdltant is to go to the patient’s current treating physician. Physicians who “bat clean-up” in the care of a patient can be the most credible of experts-they have usually no ”ax to grind”-but this must be carefully researched to be certain. The absence of a subsequent treating physician on the patient’s side of a lawsuit can work against the patient. The average juror thinks that the most knowledgeable and candid expert witness, in the battle of experts, would be the subsequent treating physician. Sometimes, he or she is the only “non-hired gun” in the case. In most cases, his or her absence from a case will be too conspicuous. When a medical expert renders an opinion that the standard of good and proper medical care has been breached and that such is the cause of injury suffered by a patient, further work can proceed. In recent years, states have enacted medical malpractice acts with varying provisions-all in response to cries and whines of ”insurance crisis”-of “tort reform.” In Texas, the legislature has required that before the filing of any suit for medical negligence, notice letters must be sent to the potential defendant health care providers and the plaintiff must wait 60 days before filing suit. Why wait? Because the legislature of Texas wanted to give the doctors and hospitals an opportunity to respond and potentially settle or provide explanation that would obviate the necessity for a lawsuit. Has this worked? I can only give you my experience: I have sent hundreds of notice letters to hundreds of doctors and hospitals throughout Texas and not one has even bothered to pick up the phone and talk to me. Why? Because their insurance company will advise them not to do so. This makes sense, I suppose, but the purpose of the statute certainly has not been in any way served in my experience. The next step in the process is to file suit.

INTERIM MEETING JAMAIL PROFESSIONAL LIABILITY

363

Who should be sued? I can best illustrate the steps to be taken in a properly managed medical negligence case by giving you an actual case experience I had recently: the case of Maria Irma Palacios. Mrs Palacios was a 40-year-old mother of four daughters, ages 1 to 6 years. She was obese. She entered a now-razed Houston Hospital for an elective gynecologicaVabdomina1 operation. She was evaluated by both a surgeon and an anesthesiologist and passed for operation. She underwent 4 hours of operation. In the recovery room she complained of being cold. An anesthesiologist who attended her the last hour of operation and in the recovery room gave her Valium for her complaints of cold. Mrs Palacios stopped breathing shortly thereafter. By the time the recovery room nurse recognized her distress, it was too late. Efforts to revive her were only successful in restoring her basic bodily functions. Mrs Palacios could breathe on her own but nothing more. She remained in a brain-damaged, comatose, persistent vegetative state for almost 2 years before her merciful death. Her childten and husband spent 2 years visiting their loved one, watching her limbs flex and distort; her eyes open; totally unaware of them or their anguish. The call to my office in Mrs Palacios’ case was simply: my wife went in for operation and she is now brain damaged. What happened? Who should I sue? Should anyone be sued? The expert anesthesiologist who initially reviewed the medical records could give me two opinions: it was inappropriate for Mrs Palacios to have been given Valium in the recovery room and this obese woman ”possibly” should have not been passed for this elective operation. Ordinarily this would lead a trial lawyer to sue only the anesthesiologist, the surgeon, and possibly, the hospital. But there was an assistant surgeon present, and another anesthesiologist started the case. The medical records themselves did not reveal any action on the part of the assistant surgeon or the first anesthesiologist that could have caused this occurrence. Who should be sued? The lesson to be learned here is that “discovery” must be undertaken immediately, because there is much to be learned about the events surrounding a case of medical negligehce outside the medical records. Here is what the medical records did not reveal about the ”care” that Mrs Palacios received: The first anesthesiologist left the operating room and entrusted his patient to anesthesiologist No. 2 because ”he had to go to lunch!” This was his explanation, as given in his deposition. Anesthesiologist No. 2 was an allegedly recovering Valium addict and his supervisor, anesthesiologist No. 1, knew this and still went to lunch leaving Mrs Palacios in his ”care.” Anesthesiologist No. 1 was not the only person involved who was aware of No. 2’s drug addiction: the hospital administrator was aware and the hospital management corporation’s officers and directors were aware. This doctor was allowed to come into

364

INTERIM MEETING JAMAIL PROFESSIONAL LIABILITY

this hospital and was allowed to administer anesthesia without any monitoring program in effect whatsoever. He was never required to submit to drugmonitoring tests of his blood or urine. His activities were never watched, monitored, or evaluated by the Director of Anesthesia-the fellow who “went to lunch.“ The acts and omissions of negligence that led to the persistent vegetative state and death of Maria Irma Palacios were too numerous to list. But the real lesson is that not all the facts appear in the patient’s chart. Nowhere in Maria‘s chart was it recorded that an unmonitored, former (or current) Valium addict was going to administer anesthesia. Nowhere in Maria’s chart was it recorded that the hospital administration was totally aware of the addiction and was allowing this physician to administer anesthesia. The medical chart also omitted the following facts which I discovered through interrogatories and depositions: that Maria Palacios was left in the recovery room flat on her back after four hours of abdominal operation; that the ”regular recovery room nurse” was not available to attend to Mrs Palacios because she had to attend a management staff meeting; that the nurse who was left with Maria’s care had no recovery room experience. The jury’s verdict? All physicians, the hospital, and the hospital management company settled for their combined policy limits before the jury returned its verdict. For technical reasons, a jury verdict was nevertheless received. The jury found negligence on the part of the surgeon, both anesthesiologists, the hospital, and the hospital management company. I gave you the facts of Mrs Palacios’s tragedy to illustrate what medical records do not reveal. But the case can teach all of us much more than where facts are buried and how to ferret them out. The case teaches us what jurors think of the conduct of a professional when the facts demonstrate a callous, careless, uncaring attitude on behalf of physicians and hospital administrators. Jurors want to believe that doctors have not been negligent. Jurors are patients too-they do not start out listening to the facts of a lawsuit with a preconceived notion that the doctor and the hospital must be guilty. I read every single result from every medical malpractice case that is tried in Harris County, Texas, and believe me, plaintiffs do not win very often. But when a case is tried-with facts that surrounded Mrs Palacios-jurors are very hard on the defendants. This jury awarded a total sum of damages of $52 million to the widower and four daughters of Maria. A jury trial is not something to be feared. I recently gave a commencement address to a class of graduating law students at Texas Tech University. My message to those students contained something that I would like to leave with you.

Ann Thorac Surg 1991;52:362-4

Patients who bring their grievances to court are saying by their actions: We are people who believe in law. We believe our court system has integrity and accessibility and fairness. When we seek help in the legislatures, we are powerless, for we have no money; no political action committees. The slumbering bureaucracies of government cannot be wakened by our pleas. Two choices remain to the people: the courts or the streets. If we pursue self help by direct action on the venue of the streets, in some modern form of trial by battle, we will eventually find ourselves in court, with a more serious case.

Our legal system is not a failure. It is not perfect. Today, lawyers are under seige because, just as in Shakespeare‘s day, those who seek to sack freedom know that it is lawyers and judges who guard the bridge between freedom and tyranny. Daily we take freedom for granted. Clarence Darrow put it straight: He said, “you can’t be free if I am not free.” You cannot have freedom yourself unless you are willing constantly to fight for it for others. The place for that kind of fight, short of revolution, has always been the courtroom. Just as you have the freedom to practice your profession, so have you the freedom that accompanies accountability. The same vigor that accompanies my quest for justice for an injured victim will accompany my defense of an unjustly accused defendant. But the fact remains-we must be accountable, responsible, and ready to stand before a jury at all times; Doctors and lawyers alike. We are professionals-we stand in the faith, trust, and confidence of our patients and clients. Many times, we hold the only key to the truth-whether revealing we have erred or have been reasonable. We can attempt to avoid and hide the truth but this will not withstand the scrutiny of a jury. Our jury system must be defended. It is sacred. It is a barrier to tyranny. There are those who would ”alternatively resolve” our disputes, singing a tune of peace and harmony among disputants. But where will truth hide in such a system? Truth can hide forever from exposure behind review boards, arbitration panels, mediators, and facilitators. But not from a jury, my friends. Do you think for one second that the Valium-addicted anesthesiologist, whose negligence (yes, negligence) caused harm, would have voluntarily stood up before an arbitration or mediation panel to speak the truth? Never. I am not here to defend every “bad” medical malpractice case brought by an attorney against a physician. I am sure that each of you has had a personal experience where you believe you were treated unfairly by the legal system. Our legal system is, as I said before, not perfect. But neither, my friends, is the medical profession. And we must all stand accountable for our errors when they constitute negligence under the law.