Malpractice: When to Settle a Suit and When to Fight

Neil Chesanow

Disclosures

September 25, 2013

In This Article

A Tale of 2 Defendants

Early in his career, McMenamin defended a doctor whom he did not prepare well for trial. The doctor nearly succeeded in snatching defeat from the jaws of victory.

"This doctor thought the case was completely without merit, that it was utterly frivolous, and that the plaintiff's expert was an SOB who did not deserve the time of day," McMenamin says. "Which, actually, I agreed with," he adds. "But it wasn't me on the witness stand with my chestnuts in the fire."

As the doctor sat in the witness stand, he draped an arm over the back of the chair, slouched in his seat, and imperiously looked down on the opposing counsel, both literally and figuratively, when being examined, "and by his body language and facial expression, and sometimes by his words, he conveyed very clearly nothing but utter contempt for this lawyer," McMenamin says.

As a result, McMenamin is convinced, a case that was "eminently defensible" ended up with a hung jury, although the doctor ultimately prevailed at retrial.

"Do things like this have an impact on how a jury thinks and how they vote?" McMenamin asks rhetorically. "In a perfect world, no. But in the world we have to live in, I'm convinced that they matter."

Compare this to another of McMenamin's cases, in which the doctor, a pediatrician, "got in the game," as McMenamin puts it. "The doctor was accused of malpractice in the way he handled a child with asthma," McMenamin recalls. "As a result, the child was admitted to the hospital, where he died.

"But this guy was very smart and had truly immersed himself in the case," McMenamin continues. "There was a question put to him on cross-examination by the plaintiff's counsel, who was clearly hostile. It was one of the most important events of the trial.

"The question was: 'On the 13th, I believe the patient's potassium level was 3.7, was it not?' And the doctor, without the chart in front of him, said, 'No, that was on the 14th. On the 13th, it was 3.8. Check page 35 in the chart. You'll find it there.'"

The chart was "several inches thick," McMenamin remembers. "The jury was in awe."

As it turned out, it was a stupid question. The child's potassium level was irrelevant. The plaintiff attorney didn't know that, but neither did the jury.

That the question was irrelevant didn't matter. In his response, the doctor gave a bravura show of competence which, after all, was what was on trial.

"This doctor knew his chart so well that without benefit of referring to it ,he could correct the opposing counsel," McMenamin says. "It was remarkable. And the jury got the message."

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