Sometimes When It Rains

It has been an intense, emotionally draining week. On Monday I appeared at the court as summoned and I was picked to be on a jury. It turned out to be a malpractice suit that a jury of seven women were asked to judge. One lady had a medical emergency in her family and the alternate was named a permanent juror. Six women jurors with a woman as plaintiff against a male physician as defendant. She had a male lawyer. He had a woman.

From the very start it was obvious that the plaintiff's attorney was going to base his appeal solely on emotion. No one could deny that the woman had gone through a horrible experience. During a hysterectomy to remove her female organs, because of cancer, a sponge was left inside her and she contracted a serious infection and had to have more surgery to remove the foreign object. She had an open wound for sixteen months and further complications and further surgery was necessary to fix those problems.

Sounds pretty open and shut doesn't it? The doctor missed a sponge and she got ill because of it. What went wrong with the plaintiff's case? Arrogance on her attorney's part. He assumed that when he manipulated the jury to get all women that he could feed us pure emotion and ignore facts in the case. He gave us emotional family members and video taped depositions by doctors. At no point were we the jury able to ask questions, which is our right under law to do, because their doctors couldn't bother to be there in person. We wanted to ask her second surgeon about the wisdom of leaving a wound open for sixteen months but we couldn't because he was only there on a videotape. It wasn't important enough to bring him out in person.

One of the clearest facts in the case was that the doctor had to depend on the instrument count from the nurse assisting him. The nurse had set up for the surgery and told him that there were 15 sponges to start with. As the surgeon was ready to close he asked for the count of the sponges twice and was told twice that they had fifteen sponges. None were left inside the patient by the count of this nurse. What went wrong? Clearly she either counted wrong to start with or counted wrong at the end.

The defense lawyer appealed to our logical minds. She presented surgeons live that we could ask questions. She took us through an operation with graphics that a surgeon went step by step through, showing where everything is in the body, explaining how they go about the surgery, what the problems were for the surgeons, where sponges were used and how, what they looked like at the end. In other words they gave us information that we needed to understand as lay persons what had happened medically. Four surgeons said that they would have closed this patient up under the very same circumstances. Four surgeons explained why doctors are not able to count sponges or instruments while they are working. They clearly explained why surgeries are set up to have the head nurse and the head tech carefully count. That is their job. We learned from a plaintiff videotaped evidence that the nurse in the case admits she doesn't always watch the count.

In the end when we were in the jury room deliberating it came down to the law. By definition was the doctor guilty of malpractice? None of us could say he was. It was clear from the start that the fault lay with the nurse who gave the doctor the wrong information. He could only work with the knowledge he had. He had searched to try and find everything, he searched twice to make sure the opening was clear of foreign objects. We couldn't fault him for not acting on something he knew nothing about. He was told everything was accounted for.

The judge told us afterwards he was surprised by our decision. He felt that an all lady jury would be swayed by a pure appeal to our emotions. At the end of the day he was impressed with us. Did we feel sorry for the lady? Of course we did, she had gone through hell. The case had to be decided on the facts though and that is where her lawyer failed her. He could not prove that the doctor had committed malpractice. It was clear where the error lay and the hospital had admitted they were at fault and settled with the woman. She clearly should have gone after the hospital for more money then she did. Her lawyer should have remembered that women have brains in addition to hearts.

Was justice served today? I don't think anybody came out a winner today. Sometimes when it rains the sky is crying.