PDF version:To Whom It May Concern Part 2
On October 9, 2017, the above letter was delivered to the investigating Senior Deputy Prosecuting Attorneys, Criminal Division, of the King County Prosecuting Attorney’s Office.
9-10:00 am perform office work with Nala in tow
10:00 – 11:15 teleconference with AAJ committee. Anne takes Nala for a walk and brings her back.
11:15 – 12:30 Meeting with co-counsel and new client who is in full rigid body brace. Nala tries to tip her over.
12:30 – 1:15 Put Nala in car. Head to court but first stop off at Whole Foods Interbay as frig is bare. Pick up fruit.
1:15 – 2:00 Drive. Park. Walk into courthouse. Early. Chit Chat. Go inside courtroom and watch Judge Shaffer make a ruling on another case.
2:00 – 3:00 Status conference with Judge Shaffer and a dozen or so other attorneys on “the case which shall not be named.” Though it can actually be named because Judge Shaffer takes a moment to remind the defense that freedom of speech is okay.
3:00 – 3:30 Debrief with Andrew. Smile with pleasure. Walk back up hill to car. Drive Nala home.
3:30 – 4:00 Alysha has arrived. Put fruit in frig. Run upstairs. Take off lawyer clothes. Put on sweats.
4:00 – 5:30 Drive with Alysha to No Bonz Tiki Bar in Ballard and have favorite vegan meal of eggplant sticks and Caesar salads with blackened tempeh while watching continuous loop of movie Blue Crush.
5:30 – 5:40 Drive home.
5:40 – 6:00 Sit down do a bit more email and let stomach get some rest. Pull on running gear.
6:00 – 7:15 Cruise with Nala through Queen Anne.
7:15 – 8:30 Come back. Shower. Change. Lulu lemon tights. Sleeveless tunic. Short sweater. Northface coat. All black. It’s going to be colder there than here. Pack smallest duffle bag with computer and earphones. No extra clothes. Kiss Alysha goodbye. Nala watches me go.
8:30 – 9:00 Drive to airport
9:00 – 10:30 Do everything to get to airplane and get seated. Take a Nyquil as have had cold since Tuesday. Hoping it will knock me out. It doesn’t. My legs are twitching. Cannot get comfortable.
10:30 pm – 3:15 am which is now 6:15 am Arrive at Dulles airport WA DC.
6:15 – 6:30 Go to restroom which is empty. Brush teeth. Put contacts into red eyes. Add a little mascara and give up on anything else.
6:30 – 7:15 am Take cab to Ritz Carlton for AAJ spring board meeting that starts at 9. Do not check into hotel. Do not go tidy up. Do not change outfit. Locate meeting room. No one is there.
7:15 – 8:15 am Since no one is there yet walk to Whole Foods. Buy and eat package of raspberries, old fashioned donut and drink some water. One of the two other men who are also eating appears to be finished. He is bent over. His face on top of the magazine that is lying on the table. Snoring.
8:15 – 8:30 am Walk back to hotel. Look at Chihully display on wall. Find another bathroom and brush teeth again.
8:30 – 12:40 am Say hi to AAJ staff. Sign in. Sit down. Read agenda. Watch meeting. Semi doze through part of it. Try my best not to. Pretty sure have caught most of the highlights.
12:40 – 1:00 pm Meet with Maria – co-board member from Washington state.
1:00 – 2:00 pm Make way back to airport. Arrive 3 hours early.
2:00 – 3:00 pm Walk up and down the B wing several times. Buy eye cream at Clinique counter (how handy). Consume delicious French fries from Five Guys. Buy a salad (to counteract French fries) for trip home.
3:00 – 4:30 pm Wait. Internet connection is poor. My devices won’t let me use the airport wifi because apparently it isn’t good enough. Call Noelle who is lying on a towel in her backyard sweating in 80 degree weather.
4:45 pm Board p lane. Ticket is rejected. Go to counter. Alaska my love has bumped me to first class.
5:30 – 6:30 pm Plane takes off. Guy next to me is already asleep. Since already napped during the meeting am now wide awake.
6:30 pm – 7:30 pm. Diligent maître d presents meal of gnocchi , salad and roll. The gnocchi looks and tastes like a Styrofoam peanut. Cover it in red sauce. That doesn’t help. The salad could have been good except the suppliers forgot to stock salad dressing. The roll can’t be justified due to too many potatoes. They take away meal. Pull out salad from Potbelly and eat the top of it. Very nice.
7:30 pm which is really 4:30 pm. Realize there are four more hours to go.
Why don’t I stay at least one night in DC. Because Sunday is Mother’s Day.
Photo: Red eye flight to DC.
Part 2: Deposition of treating providers in a medical negligence case resulting in bilateral leg amputations.
This next deposition excerpt series is summed up as: The Doctor Versus The Nurses.
Being evasive in a deposition does not play well in front of a jury. The witness here believes he is scoring brownie points by not answering the questions. The best way to deal with an evasive witness is to let them evade to their heart’s content.
Again, this does not work so well if the lawyer asking questions sticks strictly to an outline. If an evasive answer is given and you simply ask the same question again and again you become part of the problem. You will draw the customary objection: asked and answered. The witness will begin to simply repeat the same evasive answer to the same question. Until someone gives up.
In this excerpt, the doctor uses a word that will ultimately become perhaps the single most important word in the liability case. The word is not a medical term. It is a word of common usage. It will impact credibility. And will create a hole for the defense that will be impossible to dig out from. The word is: significant.
15 Did you review the nursing notes?
16 A We typically do not review the nursing notes.
17 Q If the nurses note abnormalities, how do you get that
19 A If they think it’s significant, they report it to us.
20 Q If there is a significant abnormality, do they have a
21 duty to report it to you?
22 MS. EK: Objection. Calls for a legal
24 A I cannot speak for them.
25 MS. GRIFFITH: Join.
1 Q (BY MS. KOEHLER) Do you expect nurses to report any
2 abnormal condition or symptom to you?
3 A If it’s significant.
4 Q How do they know if it’s significant or not?
5 A It’s their job. I can’t speak for them.
6 Q Is a – is it a significant finding if lower extremities
7 are mottled?
8 MS. EK: Objection. Incomplete hypothetical.
9 MS. GRIFFITH: Join.
10 A Depends.
11 Q (BY MS. KOEHLER) Were you aware – made aware by any
12 nurse at 8:30 p.m. – no; sorry – 8:30 would be a.m. on
13 October 27 that Ms. Spriggs’ lower extremities were
15 A No.
16 Q Would that have been a significant finding?
17 MS. EK: Objection. Incomplete hypothetical.
18 A Yeah. I can’t speak for the nurses.
19 Q (BY MS. KOEHLER) If you don’t know whether having
20 mottled extremities is significant, how would a nurse
21 know that?
22 MS. EK: Objection. Argumentative.
23 A Sorry. I don’t get that question.
24 Q (BY MS. KOEHLER) Why is it . . . Why is having mottled
25 legs not a significant finding?
1 A Who said it’s not significant?
2 Q Is it significant?
3 MS. EK: Objection. Incomplete hypothetical.
4 A I can’t – I can’t tell what the nurses saw or wrote.
5 Q (BY MS. KOEHLER) If legs are mottled, is that a
6 significant finding?
7 A I cannot speak for the nurses. You are asking a
8 hypothetical question.
9 Q I’m asking you as a doctor. If you saw —
10 A As a doctor —
11 Q As a doctor, if you saw mottled legs, would you find that
12 to be significant?
13 A Sometimes patients have skin changes that, you know,
14 would come and go, so this would make it insignificant.
15 If it’s persistent, it would make it significant.
16 Q Would it be significant if the change to the mottled legs
17 25 minutes later was that they were now cool and mottled?
18 A It – it doesn’t make much difference, the fact that it’s
20 Q Cold and mottled is no different than just being mottled?
21 A Again, you know, depends on the patient temperature, the
22 circumstances. This is very hypothetical. Many patients
23 have cold extremities with different diseases.
24 Q Well, you had known Ms. S from a month-and-a-half
1 A Correct.
2 Q You knew her medical condition.
3 A Correct.
4 Q She didn’t present with mottled extremities at the time?
5 A Not that I recall, no.
6 Q They’re not noted in any chart note in September.
7 A You mean in September?
8 Q Correct.
9 A No.
10 Q So in October, if the nurses were noting that she was
11 having some swelling and her lower extremities were
12 mottled, would that be significant?
13 MS. EK: Asked and answered.
14 Q (BY MS. KOEHLER) I’m asking specifically with respect to
16 A Swelling is part of the congestive heart failure.
17 Having, you know, skin changes can be part of the
18 disease, too.
19 Q So you don’t feel that those are significant findings?
20 MS. EK: Objection. Argumentative.
21 A I cannot speak for the nurses, what they saw and whether
22 it’s significant for them or not.
23 Q (BY MS. KOEHLER) But as a doctor, you would not be
24 concerned with HS, who you knew from a month
25 before, having mottled legs with swelling?
1 MS. EK: Object to the form and asked and
2 answered approximately six times now.
3 A We are always concerned about all our patients with any
5 Q (BY MS. KOEHLER) If the cool, swollen, mottled legs were
6 also painful, would that be a significant finding?
7 MS. EK: Objection. Improper and incomplete
9 A Patients with congestive heart failure tend – tend to
10 have leg swelling and leg pains.
11 Q (BY MS. KOEHLER) Cool and mottled?
12 A I did not see her the first day, so I cannot speak for
13 cold or mottled.
14 Q If the patient had swollen, cold, mottled, painful legs,
15 also with nonpalpable pedal pulses, would that be
16 significant to you?
17 MS. EK: Objection. Still incomplete and
18 improper hypothetical.
19 A I did not see Ms. S the first day, and I cannot
20 really comment on her examination. Part of the
21 congestive heart failure symptoms would be leg swelling,
22 you know, painful legs, you know, color changes.
1 (BY MS. KOEHLER) Were you advised at 8:30 a.m. on
2 October 27th by CP, LPN, that Ms. S’
3 lower extremities were mottled?
4 A No.
5 Q Were you advised at 8:55 a.m. by CA, RN, that
6 Ms. B had bilateral legs that were cool and mottled?
7 A No.
8 Q You were advised or . . . Let me ask this: Were you
9 advised specifically by MC at approximately
10 10:46 that Ms. S had plus one edema in the
11 bilateral lower legs and her pedal pulses were not
12 palpable and she had bilateral lower extremity pain
13 sensitive to touch and generalized achiness?
14 A I do not remember.
15 Q Were you advised at 16:52 on October 27th by RM
16 CAN, that there was mottling in Ms. Ss’
18 A No, not as much as I remember.
19 Q At 22 – the hour of 22 o’clock on October 27th, were you
20 notified by JR, RN, that bilateral legs were
21 cool and mottled?
22 A I do not recall that I was notified.
23 (Clarifying interruption by reporter.)
24 A I do not recall that I was notified about this.
The dilemma created by this testimony, is that nurses are trained professionals too. They may not have the same level of schooling as a doctor. But their care and decisions can have a profound impact on a patient’s health. Will the nurses back the doctor – admitting in essence that it is their fault he did not know of the patient’s clinical issues. Or will the nurses contract the doctor. Let’s find out.
9 Q When you did the shift assessment and found the patient
10 to have purple feet, no pulses from her knees down, did
11 you transmit that – well, first of all, did you find that
12 to be a significant finding?
13 MS. EK: Object to the form of the question. It
14 was mottled feet.
15 MS. KOEHLER: As what?
16 MS. EK: Mottled. You said purple feet.
17 Q (BY MS. KOEHLER) Were her feet purple?
18 A Mottled could be a variation of colors.
19 Q What color were her feet?
20 A That’s a subjective judgment.
21 Q In your subjective judgment, what color were her feet?
22 A Mottled. I don’t know how to describe in color any
23 better than that.
24 Q Well, you’ve used the words dusky. What does dusky mean?
25 A Dusky can mean gray. It can mean darker pigmentation.
1 Q So were her feet of a darker pigmentation?
2 A Yes, than the rest – compared to the rest of her body.
4 Q Would you describe them as being purple or not?
5 A I would describe them as mottled.
6 Q All right. What color was the knee area compared to the
7 feet area?
8 A Less mottled.
9 Q How much less mottled?
10 A To – to a degree of severity?
11 Q Yes.
12 A I wouldn’t be able to make, you know, a quantification on
14 Q Were they visibly noticeably a different color than the
15 rest of the upper part of her body?
16 A Yes.
17 Q From the knees down?
18 A Yes.
19 Q With the feet the darkest?
20 A Yes.
21 Q So whatever shade it was, which you’re hesitant to put a
22 shade on it, it was – the darkest part were her feet?
23 A Correct.
24 MS. EK: Object to the form of the question.
1 Q (BY MS. KOEHLER) Am I right? The darkest part were her
3 A The darker part of her body were her feet.
4 Q All right. So back to my question. When you noticed
5 that her feet were – from her knees to her feet were
6 mottled and you went so far as to use a doppler to
7 confirm that there were no pulses, did you find that to
8 be a significant finding?
9 A Yes.
10 Q What does significant mean to you in nursing, you know,
11 in your – in your role as a nurse?
12 MS. EK: Objection. Vague.
13 A A significant finding is – to me is something that needs
14 to be reported or assessed more frequently.
15 Q (BY MS. KOEHLER) Did you report the finding of the no
16 pulses from the knees down and the mottling to a
17 physician as soon as you made note of that?
18 A Yes.
19 Q Who did you report it to?
20 A Dr. B and NP.
21 Q And NP was the P.A. on duty?
22 A She was at bedside.
23 Q She was at bedside? Now, Dr. B was not at the
24 hospital. Am I right?
25 A Correct.
1 Q So how did you contact him?
2 A He had contacted me once and I had contacted him. I
3 attempted to contact him twice through my shift. I had
4 reached and discussed with him once. I was unsuccessful
5 on my third attempt to contact him.
6 Q So what time periods did you attempt to contact him?
7 A He called me to get an update at 2300. I called him
8 shortly after that. I’d have to look at my charting
9 here. Shortly after that, around 2330, I contacted him.
10 Then at the end of my shift – I’d have to look at my
11 charting again – about 6:30, 6:45, I called him and was
12 not – I did not get a response.
13 Q Okay. When he contacted you at 11 o’clock p.m. and you
14 contacted him at 11:30 p.m., did you actually speak to
16 A Yes.
17 Q Each time?
18 A Yes.
19 Q Did you tell him that there were no pulses from the knees
20 down and that there was mottling with the darkest
21 mottling being at the feet?
22 A I had told him my findings and my assessment of no pulses
23 in her feet, no pedal pulses, no tibial pulses and the
25 Q Is there any doubt in your mind that you told him that
2 A No. I told him that information.
3 Q Is there . . . When you looked at your charting, did you
4 see notation – notes that you had those conversations
5 with Dr. B?
6 A There was a note that I – Dr. Bcalled for update.
7 Q And that’s when you would have transmitted that
9 A Correct.
10 Q What other information did you transmit to him beyond the
11 no pulses and the mottling?
12 A General – my general assessment, general like vital
13 signs, labs that had come back, discussed medications
14 patient was receiving.
15 Q Okay. When he learned of the no pulses and the mottling,
16 did he give you any special instructions with respect to
17 that item?
18 A No.
Is this a classic case of he said, she said. Or there more to this story.
To be continued…
Photo: Another timeline PPT slide by Duane Hoffmann
John, Anne and I are a Toulouse Petite. Having our staffing meeting while eating breakfast.
A: Do we need to do anything else to take X’s deposition. We have the court order. The Assistant Attorney General says he doesn’t think X will agree to say anything.
K3: We could issue a subpoena and have him served. But he’s already in prison.
A: Can’t we just give it to the AAG.
K3: No, we didn’t sue the criminal, we’re suing the State. So they aren’t representing X. I guess we could send a notice of deposition to the Warden to give to X.
A: Okay. Well, you know he’s in the big prison right. The one where really bad people go.
K3: That’s okay, Ed (cocounsel) is coming too.
A: Right. Okay then I’ll get it set up. We’ll see if he’ll talk to you.
K3: Well, he may.
A: The AAG said they will arrange for extra security. Oh, by the way. Did you know that he’s a white supremacist.
A: Jody mentioned it to me the other day.
K3: Oh that’s just great. He’s going to really like Ed (African American) and I (Hapa).
A: I wasn’t sure if you knew.
K3: Fantastic. Well, I better just go do this on my own.
John: I can go with you.
K3: The Good Wife goes to jail all the time to talk to felons. I can handle it.
John: That’s tv.
K3: Trust me. Won’t be a problem.
A: If you don’t pull your hair back straight and leave it fluffy he might think you’re Italian or Mediterranean. It’s only when your hair is more flat that you look real Asian.
K3: Super. I’ll do my best to look as Italian as possible. We need to get him to talk.
Photo: Anne showing up with her sunglasses. on a completely overcast slightly dreary morning.
P.S. Notice my initials. Yes. My mother decided that it would be a good idea for me to “own” having 3 Ks as my initials. How appropriate.
Insurance companies cite the “duty to cooperate clause” when they are forcing the person they insure, to provide information. If you don’t give them the information they ask for, then they will maintain that the entire policy is void and you are not entitled to make any claim. In this case, I’m the one who said no on behalf of my client their insurer – and in return they quoted the clause.
Here is what happened.
This is a lawsuit against an insurance company brought by their own insured for Underinsured Motorist Benefits. The insurance company tried to get documents from a totally different insurance company to use against Mr. X. I said, no you can’t do that. They responded with this letter: “Mr. C, as a UIM insured seeking to obtain benefits under the terms of his UIM policy has an obligation to comply with that UIM policy. The cooperation clause of the UIM policy states…” It ended: “Please let me know if your client is going to continue objecting…”
I brought a motion to the court which included this:
Defendant’s threat to invoke the failure to cooperate clause based upon plaintiff counsel’s decision to bring this matter to the court’s attention is an abuse of the litigation process.
This Court has the authority to govern these legal proceedings and specifically, to decide whether a work product privilege exists relative to the other insurance file materials.
In a heavy handed attempt to avoid this Court’s involvement in compelling discovery, Defendant Insurance Co. threatened that it would invoke its failure to cooperate clause and void coverage if plaintiff counsel did not voluntarily permit production of the other files.
Most insurance policies have a cooperation clause. If the insured “substantially and materially” breaches such a clause, they may be contractually barred from bringing suit if the insurer can show it has been actually prejudiced. The burden of proving noncooperation is on the insurer. See Staples v. Allstate Inc. Co., 176 Wn.2d 404, 411, 295 P.2d 201 (2013).
In Staples, before suit was filed, the insured failed to submit to an examination under oath (EUO). The insured’s subsequent suit for bad faith was dismissed due to failure to cooperate to the EUO. The Supreme Court reversed due to the trial court’s failure to require a showing of actual prejudice.
A claim of actual prejudice requires “ ‘affirmative proof of an advantage lost or disadvantage suffered as a result of the [breach], which has an identifiable detrimental effect on the insurer’s ability to evaluate or present its defenses to coverage or liability.’ ” Tran v. State Farm Fire & Cas. Co.,, 136 Wash.2d at 228–29, 961 P.2d 358 (quoting Canron, Inc. v. Fed. Ins. Co., 82 Wash.App. 480, 491–92, 918 P.2d 937 (1996) (alteration in original).
In the case at bar, the alleged failure to cooperate does not stem from Mr. Cs’ acts pre-suit. Defendant never claimed that Mr. C failed to cooperate from the date the claim was first made until now.
Instead, the impetus for Defendant’s wielding of the failure to cooperate sword; is the resistance of plaintiff counsel to improper discovery. This counsel’s reasonable and justified actions should not trigger threats that coverage for Mr. C will be voided. D’s bully tactic should not be condoned by this Court.
To which the insurance company responded:
Insurance counsel’s reminder that the cooperation clause exists is not an abuse of the litigation process….Counsel’s reminder that the cooperation clause requires cooperation is similarly not an abuse, since discovery of facts, statements, and opinions of Plaintiff, his employer, and his doctors is authorized, especially where they will be called as testifying witnessees.
To which I responded:
Defendant’s threat to void the policy if the plaintiff pursues judicial relief does not have to technically amount to “abuse of process” for this court to enter a finding. The plaintiff has not (yet) alleged abuse of process. This is a bifurcated UIM damages and bad faith proceeding. Defendant’s behavior in telling plaintiff that his counsel’s bringing of a discovery motion will be used as grounds to void the policy should be addressed by this court now. Otherwise, as this matter heads towards trial, Plaintiff will be intimidated from vigorously advancing his case for fear of losing all claim to benefits.
Here are some tips from cases I’ve handled on how NOT to run down a pedestrian*.
- When the bus you are driving arrives at an intersection. And comes to a stop. And there are pedestrians already on the sidewalk curb getting ready to cross, wait your turn. Let them cross. They were there first. Do not turn your head to look for oncoming traffic and begin to drive forward as they are walking in front of you.
- If you are an elderly driver, it is raining, dark and you have a bit of difficulty seeing. And you are driving through a school zone with cross walk signs on every block. And if there are children crossing the road in a marked crosswalk. And even if they are wearing jeans and dark colored sweatshirts. Then consider lifting your foot off the gas. Maybe slow down. Make an effort to apply the brakes.
- If you are late. And driving a little fast. And a woman is inside of a crosswalk almost to the other side of the street. Then do not aim your vehicle at her and keep going. By the way – afterwards when the police come, don’t make up a story. Thinking you can get away with it because the woman will never be able to tell hers. Eye witnesses and accident reconstructionists will do you in.
- When you are emerging from a parking garage downtown, remember that you are passing over a sidewalk before you get to the road. This means you need to look both ways. To see who is walking on the sidewalk that you are driving through. This would have helped you to see the woman who is now under the right tire of your truck.
- If you are drunk you are not supposed to be driving. You may think you are driving well. But you are driving like crap. Realize that you are going to go to jail for hitting the college kid who is crossing the street.
- If you are an alcoholic, drink the night before, and get up early in the morning to drive your bus route, remember that you are still drunk. You are not supposed to be driving. When you run over a disabled man waiting to board the bus. And feel the bump but disregard it. And then drag him around town for miles and miles before the police arrest you, Realize that you are going to go to jail.
- If you are holding your cel phone to your ear and talking on it. And want to turn left at the light. First you have to make sure that the light is green. Then when you hit the person in the crosswalk, don’t try to lie and say that it is their fault. Especially if there are four eye witnesses.
*Sometimes an unavoidable accident will happen. But none of these were unavoidable.
If the driver admits they did something wrong then there’s no need to take the deposition. But there’s a reason that there are so many lawyers. Exhibit A – big bad insurance companies. Here are some of the pitiful excuses they make in straight forward rear end cases:
- the sun was in her eyes
- it had been raining
- the medication made him sleepy
- the car in front stopped too quickly
- foot slipped off the brake pedal
- was looking at the speedometer
- it was dark out
The list goes on and on.
Here is a very basic outline that can be used as a starting place to depose a defendant driver. If you are really prepared – you can insert what you already know in the “other info” column. It rattles the defendant when you ask leading questions confident already of the answers.
Family member testimony helps a jury understand the human impact of injury. The attorney will often become sidetracked by focusing on getting answers to specific questions that dot “i”s and cross “t”s. Stilted, formal, data-based questioning is a good way to shut down these valuable witnesses. Words after all, are less important than everything else that goes on when we form impressions.
The most important function a family member can serve – is to show love. The injured person is loved. The injured person is lovable. The injured person loves.
In this trial testimony excerpt, you can feel the love of Wally Petersen for his son.
Click here: WallyP direct.pdf
Photo: Ken Petersen trial exhibit
What kind of a doctor can make half a million bucks a year not even treating a patient? Why an insurance paid defense medical examiner of course. Not all of these docs are completely sold out. Some actually practice medicine and do these exams as a (well paid) hobby. But there is quite a list of not so lovely characters doing DMEs to fund their lifestyles of the rich and famous.
My favorite is the doctor with medical licensing problems because he forged someone’s name so he could write prescriptions for the jugs of codeine-laced cough syrup that fed his addiction.
There are plenty of less obvious examples of hacks doing unfair exams. Like the “neurologist” who “examined” our lovely older client, She turned out to be “pediatric neurologist” who didn’t treat adults.
In any event, when a court orders our client to submit to one of these exams, we shouldn’t assume our clients will know the true horror stories that surround this whole DME game. They shouldn’t go into the DME office thinking they are going to be seeing a normal friendly and caring neighborhood doctor.
I developed this DME client Ltr.pdf. Please feel free to use and share it.
Photo: A film scene featuring Dr. Aaron DeShaw, DC, JD and Edward Moore, JD. The Preparing your Client for a DME DVD is in the final stages of production. It will be distributed through Trial Guides. 100% of my portion of the proceeds are donated to WSAJ.