MEDICAL MALPRACTICE SUMMATION IDEAS

Here are some random notes of things I’ve argued in past medical malpractice cases I have tried. Some aren’t as wonderful as I thought they were when I said it, but there may be a thought or two in this collection which might have some benefit for you.

  • The defense seems to be: we did injure her, but we did it very carefully.
  • In all of my years of trying cases I’ve never heard a doctor testify they made a mistake. Instead, they and their lawyers always argue one of the “three dog defenses” used in dog bite cases: (1) my dog was chained up so you must’ve gotten too close (2) my dog doesn’t have any teeth and (3) I don’t even own a dog
  • Remember. only the doctors and nurses make entries in the patient’s medical records. They don’t show the record to the patient and give the patient the chance to put their version of what happened in the record. The records are kept in the custody of the hospital doctors and nurses who can access them at any time. These records are made after something has happened and when the doctor or nurse already knows the consequences.
  • In 1982 Paul Newman stared as a lawyer in a movie about medical malpractice. He told the jury in summation: “There is no justice in our system for the common person. The rich win, the poor lose. The poor are powerless. They are the victims of the system. We doubt the law. We doubt the system of justice. But, today, you are the law. All 12 of you. Not some book. Not some lawyer. Not even some judge or legislature. Today, you are the law.” That’s what I say to you today. Today you have all the power of a legislature and a judge to do what is right.
  • This was a totally preventable and unnecessary injury. A tragedy which didn’t have to happen.
  • Your verdict needs to make clear that doctors are not above the law. It is not only right, but fair and proper to say to doctors: “we love you. We think you’re a good doctor, but in this case you made a mistake and someone was injured as a result. You are as much accountable for your professional mistakes is I am in driving my car. When you drive through a medical red light and injure someone you must be held responsible just like anyone else. We believe everyone is human, even you. We believe everybody makes mistakes, even you. And when we make a mistake it’s our duty to acknowledge it like everybody else. If you refuse to acknowledge your mistakes than we must do it for you, because it is right and just and the American way to own up to our own mistakes.”
  • A verdict based on sympathy, bias or prejudice is an injustice and an improper verdict. A verdict of that kind is no different than a verdict based upon a bribe because it is not based on evidence and the law, but instead is based on how someone thinks about the situation in their preconceived bias.
  • It’s your duty to do the courageous thing. You could say to yourself: “This isn’t easy. I wish I weren’t here. I feel sorry for the doctors. But, I am a judge of the facts. I’ve taken an oath to do the right thing on the basis of evidence and the law without regard to any bias or sympathy I might feel for the doctor. I’ve swore to do my duty I’m going to do it no matter how hard it is because I want to be proud of my verdict. I’m not taking the easy way out. I’m not going to listen to any pleas for sympathy for the doctor or bias against the plaintiff. My vote is not for sale on that basis. I’m going to follow the evidence and the law.” Unless each and every one of you is prepared to say that to yourselves, your time here has been wasted and your jury service worth nothing. But, I know you will do that. I know you will do justice to manner but the personal cost to me.
  • The right and proper verdict requires an enormous amount of courage. The easiest thing to do is to duck the burden and responsibility. I pray that you don’t do that and have the courage to render a verdict that will allow you, in the months and years ahead, when perhaps working in the kitchen or watching a ballgame on television, to think back to this case and say to yourselves: “Yes, we the jury rendered full justice in that case. I’m proud of what we did.” Have courage to render a verdict that will allow you to tell your friends, neighbors and your children that you participated in the trial of historic significance in setting the value for human suffering. You have a rare opportunity to make a statement about the value of destroying an innocent life that would have been free from injury and pain but for the carelessness of the defendant.
  • In medicine small acts of carelessness can cause enormous harm. It’s like the nursery rhyme: “For want of a nail, a shoe was lost. For want of a shoe,a horse was lost. For want of a horse a rider was lost. For want of a rider a battle was lost – all for the want of a nail.”
  • Doctors and nurses are like airplane pilots who are trained to always be alert for possible problems. The pilot flies with one eye on the instruments and an ear for the sound o the engines. The slightest change in engine noise or change in the instruments alerts them to possible problems requiring their immediate attention. It is never right to put a piece of black tape over the flashing red light on the instrument panel or ignore warning signs that could mean serious consequences. In medicine, the same careful carefully attention is required in monitoring patients in a hospital.

About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, member of the National Trial Lawyers Hall of Fame & speaker at Spence Trial College
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