Part 1: Depositions of treating providers in a bilateral leg amputation medical negligence case

Photo:  First timeline PPT slide - by Duane Hoffman.

Photo:  First timeline PPT slide - by Duane Hoffman.

Am at a hospital.  Sitting on one side of a long table in a cafeteria.    With me is my partner Paul Whelan and paralegal Cheryl Baldwin.  Paul  has been handling medical negligence cases since I was in grade school.  He is my Yoda.  Cheryl screened this case and knows everything that I need to know.   Between the two of them, I'm covered.

To my left at the end of the table in front of a video backdrop is the witness.  He is not only the treating doctor.  He is the Medical Director of the Hospitalist Program and Chairman of Internal Medicine at the hospital.  Across the table are the defense lawyers, a risk manager and representative from the hospital.

My job is to ask questions that will pin the doctor down, expose his vulnerabilities, and figure out why he did what he did when treating our client.

I use words that I have never used before.  Like rhabdomyolisis which I pronounce correctly only because  listened to it on  I mispronounce words like pedal pulse and ischemia.  The defense lawyers smirk a little.

This doesn’t bother me.

One of the joys of being a trial lawyer who handles every imaginable kind of case – is the never ending challenge of learning something new.  Am not worried about making a fool of myself.  My preparation for this day has involved more hours of studying the records and medicine than the deposition will actually take.  Plus am an intense listener.

This is my practice tip.  When examining any witness:  your next question should flow from what their answer to the last question was.

Lawyers who stick to outlines are handicapped because they don’t place a premium on the art of listening.  If you don’t listen, then you cannot engage in repartee.   If you cannot engage in repartee, then you have less of a chance of being able to effectively examine a witness.

In this deposition excerpt, the doctor is on a mission to prove: 1) that he acted perfectly; and 2) that any fault belonged with his patient our client.  This particular blame the victim defense theme goes like this:   It was her fault for not moving to a more urban environment with better medical facilities.

Let’s see how this plays out.

4   Q   (BY MS. KOEHLER)  What was the plan of treatment that you

5         suggested to her?

6     A   She ran out of some of her medications.  We gave her the

7         medicine that she needed and we advised her to establish

8         care with a primary care physician and cardiologist.

9     Q   Did you advise her that she should consider living in an

10         area with access to the type of specialists and

11         treatments she was likely to need which are not --

12     A   Correct.

13     Q   -- available in Grays Harbor County?

14     A   Correct.

15     Q   Are you saying that Grays Harbor County does not have

16         sufficient medical care to take care of all people?

17     A   We do not have many specialists.  Correct.

18     Q   Do you believe that the hospital was not prepared to take

19         care of a patient like HS?

20                   MS. EK:  Object to the form of the question.

21                   MS. GRIFFITH:  Join.

22     A   Can you repeat the question.

23                             (Pending question read by reporter.)

24     A   The hospital was prepared.

25     Q   (BY MS. KOEHLER)  How was the hospital prepared to take


1         care of Ms. S if the community of medical providers

2         in Grays Harbor was not able to take care of Ms. S?

3     A   I think if we do not take care of these patients, with

4         the distance away from, you know, specialty - you know,

5         specialties, you know, many of them will not make it.  So

6         we're always the bridge between - stabilizing them until

7         they get, you know, to the bigger hospitals.

8     Q   So is it your advice that people with serious medical

9         conditions requiring specialty care not live in

10         Grays Harbor?

11                   MS. EK:  Objection.  Overly broad.

12     A   It's a very broad question.  In Mrs. S’s case, I

13         specifically advised her to be closer to the specialists

14         that she needs due to her age and, you know, her medical

15         condition.

16     Q   (BY MS. KOEHLER)  Is that something that you do often is

17         tell people that - with serious medical conditions that

18         they should not live in Grays Harbor?

19     A   Not really.  Sometimes out of concern for the patient's

20         safety, if I feel that they need way more services, then

21         I advise them for their safety, which has been very, very

22         rare.

23     Q   Can you think of one other case other than HS before HS that you advised someone

25         that they should not live in Grays Harbor?


1     A   Yes.

2     Q   How many?

3     A   Just a few.

4     Q   And what type of conditions?

5     A   You know, one that I remember was a young patient in his

6         twenties with a heart transplant that I didn't think, you

7         know, he would get the medical care he needs here.

8     Q   Any - any other example that you have other than a heart

9         transplant and Ms. S?

10     A   I can't think of any.

The doctor has portrayed himself as an extremely caring but worried treater.  HS’s condition is so severe that he has advised her to move out of town to access better care.   Let’s see what happens when HS returns to the hospital one and a half months later.  Just how well does the doctor’s concern ring true.


4     Q   Okay.  Once Ms. S was admitted to the hospital, how

5         long was it before she was seen by a medical doctor, not

6         a physician's assistant?

7     A   Okay.  We are supposed to see patients within 24 hours of

8         admission.  I first saw her at 7:00 a.m.  So within less

9         than the duration.

10     Q   You first saw her at 7:00 a.m. the next day?

11     A   Correct.

12     Q   What time was she admitted by Physicians' Assistant

13         C?

14     A   I believe she was admitted around noon the first day.

15     Q   And it was an average - average to busy day for you?

16     A   Correct.

17     Q   And you had seen her before?

18     A   Correct.

19     Q   But you didn't have time to see her first in the seven

20         hours that you were still at the hospital?

21                   MS. EK:  Object to the form of the question.

22     A   I did not need to see her.  She was admitted by

23         MC (the physician’s assistant).

24     Q   (BY MS. KOEHLER)  That wasn't my question.  So on October

25         the 27th, even though you had seen her a month-and-a-half


1         before and you were at the hospital for seven hours, you

2         did not find it necessary for you personally to go visit

3         her?

4     A   I did see her.

5     Q   On the 27th?

6     A   Is 27th the first day?

7     Q   Correct.

8     A   I saw her the 28th.

9     Q   Okay.  But I'm talking about the 27th.  Before you left

10         home that night at 7 o'clock in the evening.  You'd

11         already seen her once a month-and-a-half before.

12     A   Correct.

13     Q   You knew she was admitted.

14     A   Correct.

15     Q   You were at the hospital for seven hours.

16     A   Correct.

17     Q   It wasn't a terribly busy day.  It was either average to

18         busy average.

19     A   Correct.

20     Q   But you didn't have time to go see her?

21                   MS. EK:  Objection.  Misstates.

22     A   She was admitted by MC.

23     Q   (BY MS. KOEHLER)  Did you have time to see her if you

24         wanted to see her on the 27th?

25     A   I did not get that question.  Sorry.


1     Q   On the 27th, if you wanted to pop in and see her, did you

2         have time to do that?

3     A   I cannot remember the day.

The doctor has created a major inconsistency. On the one hand he was so concerned about HS that he advised her to move somewhere else to get better specialty care.  On the other hand, when she came back to the hospital a month and a half later, he was fine with her being examined and admitted by a non-doctor  physician’s assistant.

To be continued.