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Courtroom show-and-tell: Help your lawyer help you

It’s easy to proclaim that you’re a good doctor. It’s better to show it.

By Jack E. Horsley, JD

The old cliche about a picture being worth a thousand words is never more true than in a malpractice trial. You can explain the clinical situation to jurors with great clarity, but a physical demonstration of the facts really drives the point home.

In several cases I’ve tried over the years, anatomical information about the patient revealed extenuating circumstances that defied textbook approaches and explanations. Often at the suggestion of my physician clients, I was able to bring this evidence to light in a dramatic, visual way.

Visual aids can make the difference between losing and winning. Consider one case where we relied only on testimony. The patient claimed that her physician had failed to diagnose a hip ailment. She couldn’t walk without having the head of her femur slip. She’d fallen several times and once fractured her tibia. Although the physician and his expert witnesses explained how easily such a slippage could occur, their words didn’t convince the jury. It returned a large award against the physician.

To avoid the same result in a similar case, I had an X-ray blown up and set up on a screen in the courtroom. The projection showed that the patient had an obvious malformation of the pelvis. It slanted downward so much that the head of the femur could easily slip out of the pelvic socket. We’d explained this with testimony, but seeing the X-ray made it real for the jurors, who found for my client.

I once represented an anesthesiologist accused of improperly supervising a surgical nurse who’d missed the lumen of a vein in the patient’s hand. The Pentothal seeped into the surrounding tissue, and the patient developed chronic cellulitis as a result. My client took immediate steps, but the drug had spread so rapidly that nothing could be done. Had it not been for the doctor’s quick action to prevent further spreading, I told the jury, the result would have been worse.

In fact, the patient had inordinately flat veins. To demonstrate how that trait complicated matters, I lay down on the counsel table and had the nurse insert a needle with normal saline into a vein in my hand.

I’m blessed with good, full veins. Even so, we were able to show the jury how easy it would be, following the usual standards, to slip through the lumen of a flat vein. The best expert could have done it just as easily, we argued.

Did the demonstration work? I’d say so. Although the jury found for the plaintiff, the amount it awarded was about half of what the pretrial settlement offer had been. The demonstration carried much weight. Several jurors wanted to discharge the physician and nurse from liability, but finally compromised on a nominal figure.

In another case, an elderly patient complained of recent but constant chest pain in the intercostal area. An X-ray revealed that one rib was shorter than it should have been and was causing her discomfort. However, she insisted that the physician had misdiagnosed her.

I wheeled a skeleton into the courtroom and demonstrated, with the testimony of my client and two experts, how the rib was congenitally malformed and shortened. The physicians used the skeleton to show how this condition might have escaped notice until age took its toll.

I believe the physical demonstration helped carry the day for my client, who was cleared of liability. On other occasions, I’ve used a surgical mockup, complete with a table, lights, and other equipment from the operating room, to demonstrate that my clients met the standard of care.

Sometimes, a simple bar chart or timeline can help tremendously. A patient had sued a physician for failing to make sufficient calls on him during hospital rounds. By using a bar chart, I established how often the doctor visited and how long he spent at each visit. Verbal testimony would have presented the same facts, but letting the jurors see the evidence on a chart helped us sell our case.

Most of my demonstrative exhibits were suggested by clients. It’s one thing to proclaim your innocence, but it’s far more effective to show it. Physicians shouldn’t be reluctant to suggest ways their attorneys can present the case in the best light.

The author is a veteran malpractice defense attorney in Mattoon, IL, and an editorial consultant to this magazine.

Jack Horsley. Courtroom show-and-tell: Help your lawyer help you.

Medical Economics

2001;10.