What comes to mind when you think of the term “creative trial lawyer”? Probably someone who is skilled in the art of bending – if not completely manufacturing – the truth? For this reason, I have always been reluctant to tell people that one of the things I love so much about being a medical malpractice trial lawyer is that it allows me to use my creativity.
To be sure, being creative isn’t some politically correct term for lying in court. To me, being creative often means taking a terribly complex concept and figuring out a way to communicate it in a simple, memorable, and factually accurate way to the court and jury. As a medical malpractice lawyer, I see firsthand the seemingly endless ways that malpractice injures patients. It is therefore my hope that I can both educate jurors about what happened in the case they’re sitting on, and also arm them with helpful information that might protect them or their loved ones in the future. So let me refer you to an opening statement I delivered recently, in order to demonstrate how I used a bit of creativity and passion in preparing this case for trial.
The case involved the wrongful death of a 49-year-old man named Michael McKenzie who left behind his wife, their 10-year-old son and two adult daughters. The cause of death was the failure to diagnose a dissecting aortic aneurysm by an emergency room doctor (Dr. Kane at Good Samaritan Hospital in Suffern, NY) as well as by Mr. McKenzie’s primary care physician (Dr. Rao). Having suddenly and inexplicable lost my own mother when she was 48, it is probably not hard to understand why this case quickly became very close and personal for me. By way of a personal background, my daughter Carmen is her Grandmom’s namesake.
The facts of the case are as follows: Mr. McKenzie presented to the Emergency Room complaining of chest and back pain on a Wednesday, November 28th. He sat in the ER for several hours while being worked up for a heart attack. The hospital and doctors determined he wasn’t having a heart attack, and diagnosed him with a muscle sprain. He was sent home with a prescription for pain medication and saw his primary care doctor the next day. While home alone two days after the Emergency Room visit, Mr. McKenzie collapsed and died. His body was found on the floor of his bedroom by his 10-year-old son Michael, Jr. Significantly, the medical records were ambiguous about everything including the intensity, location, and even presence of the pain. The definitive test to diagnose a dissection of the aorta would have been a CT scan, but that test was never ordered by any of Mr. McKenzie’s doctors. The defendants and their insurance companies denied causing the death and were “no-pay all the way”, meaning they absolutely refused to offer any money to settle the case.
Further, I was acting as trial counsel to another law firm and therefore I had never seen the file until it arrived at my office ten days before the start of jury selection. In preparing for trial, my challenge became figuring out how I could read the file, learn the anatomy as it related to this case, learn the medicine, and then articulate all of it in a way that the jury would understand. This was no small task, especially since I’m a particularly slow reader.
I needed help, but being a solo practitioner I don’t have a prep team that I can delegate work to. So, I immediately turned for help to the person I am closest to in life: my then 4-½-year old daughter Carmen. My hope was that if I could explain the medicine and anatomy in this case to a 4-year-old, I would have no problem explaining it to the jury. During my first attempt at delivering the opening, I lost Carmen’s attention on the fourth word out of my mouth. I quickly learned that my goal was to figure out a way keep her undivided attention, and direct eye contact with me, at all times. The moment I lost her eye contact, even a momentary glance away, it was a sign that I had to change what I was saying. So I would stop, think of a new phrase, and then start all over again from the beginning. Whenever Carmen asked me what a word meant, that word was scrapped, replaced with another, and I’d start again. As sure as I’m writing this, we crafted our entire opening statement exactly this way – literally one word at a time — over the course of a week.
Being a single dad, it gave us a lot of uninterrupted time to work. So day after day I kept focus-grouping the opening statement to her. In an effort to keep Carmen’s attention, I also learned how to make a double-beat pumping action with my left hand that I placed over my chest in order to simulate my heart pumping. I would start the opening by making this pumping motion as I began delivering our opening statement. Carmen would sometimes spontaneously start mirroring me when I did this. It took some practice to learn to perform this double-pump of my hand independent of the words I was speaking, but I had the fortune of being able run through the opening many, many times. I also learned the value of touching each part of my body as I described it – like the major arteries in the neck, the brain, and the direction that the aorta and arteries carry blood away from the heart.
Finally, I discovered that the best way to explain all this anatomy wasn’t legally, and it wasn’t medically. I found the best way to explain the anatomy was in terms of biology. Each part of the body being separate and unique, but also interdependent with all of the other parts. My body and its parts, as a proxy for Mr. McKenzie, also became a metaphor for all human life.
By the end of that week, I remember delivering the entire opening statement in the bathroom with Carmen. I had to do it in the bathroom because that’s the only room where we have a mirror and I wanted to be able to see myself as she, and the court and jury, would be seeing me. I stood and delivered the opening statement in front of the mirror while Carmen sat on her little step stool earnestly watching me. Then something even more memorable happened as I was finally able to deliver the opening from start to finish with Carmen. Even though I stumbled a couple of times, she kept constant eye contact with me and listened attentively to the whole thing. But when I got to the end I felt dissatisfied. I felt it wasn’t good enough, it needed more oomph, a finale, something. I didn’t know exactly what it was. I barely talked about Mr. McKenzie’s death, nor did I even address what the loss of Mr. McKenzie meant to his wife and child. I’d never even hinted that Mr. McKenzie was found dead in the house by his 10 year son – there was just no way I could explain that to my daughter. Frustrated and anxious, I told Carmen it wasn’t good enough. She smiled and looked me straight in the eyes and said “Daddy, it’s really good”. I’m in tears as I write this just as I was at that moment and every similar moment when I’ve allowed myself to recall this experience.
After I delivered our opening statement in court, I asked the court reporter if I could have a copy of the transcript. The next day the original opening transcript, professionally bound, was waiting for me on my trial table when I got to court. I gave it to Carmen as soon as I got home, thanked her for her help, and told her that one day she might like to read it to remember how we created it together. She handled her transcript with as much reverence and care as I had in bringing it home to her. The rest of the trial continued to be nothing short of a six-week-long spiritual experience which culminated in a $3,446,000 verdict for Mr. McKenzie’s family.
…and for Carmen, when you are old enough to read this, I know your Grandmother is proud of us and what we accomplished.