If this were a lawyer joke, the response would be "Start with a case that's worth five million dollars and screw it up." But it's not.
In today's article I want to show you exactly what you have to have and what you have to do in order to get a jury to give you $1 million dollars. By the way, if you get a jury to give you this amount of money, this is not hitting the jackpot and I'll tell you why shortly.
Let's get right to it.
Your doctor tells you that you need surgery. You trust him. You've trusted him for years. He tells you that if you don't have surgery, your condition will get worse and you could die from it.
You believe him. You have no reason not to. He's been great to you for all the years you've been going to him. You say "Ok, I'll have the surgery." He quickly tells you there are some risks to the surgery but brushes it off and says "It's a routine procedure. I've done this surgery thousands of times. Piece of cake," he says with ease.
You're not feeling that great. Your stomach is bloated. You feel nauseous. The anesthesiologist tells you that this is normal after surgery and you'll feel better in your own bed. You don't know what to expect since you've never had surgery before. Before being discharged home, you start to get a fever. A nurse notices your elevated temperature and tells you to take tylenol when you get home.
You're given discharge instructions and told to call your doctor if your condition gets worse or return back to the hospital if you need to.
Once at home you try and go to sleep. You can't sleep.
Your belly is sore. The anesthesiologist said it would be sore from all the gas in your stomach.
Why was there gas in your stomach? They needed to inflate your belly during your laparoscopy, to see everything in your abdomen.
Your doctor told you that with a laparoscopy you'd be in and out of the operating room in no time.
"Minimal incision," he said.
f you were to have the surgery by cutting open your belly with a knife, you'd have a massive scar and be in the hospital for many days after your surgery.
You take two tylenol as soon as you get home. They do nothing for you. Your abdominal pain is bad. You haven't pooped yet and don't understand why. A young doctor-in-training in the recovery room said you had to wait to pee and poop first before they could let you go home. However, after six hours lying in bed in the recovery room they told you it wasn't a big deal if you hadn't pooped. Besides, they were so busy and needed the bed, they let you could go home.
The next morning, you feel like crap. This can't be the way you're supposed to feel. You call your doctor. His answering service tells you he's in the office seeing patients and will call you when he has time. Minutes turn into hours. You don't feel like eating. You feel nauseous. You are bareley drinking. You definitely have a fever. It's mid-afternoon and your doctor has not returned your call.
You have one of your family members call your doctor. It's the second time now. The receptionist tells you he's busy seeing patients and your husband leaves a message that includes your symptoms and a request that he call back right away.
"Hey, sorry about that, I was seeing patients. How are you feeling?" he asks.
"Terrible. I'm bloated. I have bad stomach pains. I haven't pooped yet and I have a fever," you say.
"How's your appetite?" he asks.
"Terrible. I haven't eaten anything today," you answer hoping he'll know what's going on and how to fix it.
"I'm going to prescribe you an antibiotic and narcotic pain killer. If your condition doesn't improve in two days, I want you to call me back," he says with authority. You listen to him. You trust him. You know he's looking out for your best interest.
Later that day your husband runs out to the pharmacy and picks up your prescription. You immediately start taking it. You also take the narcotic pain killer. It throws you for a loop. You feel out of it. You feel like you're floating. You feel like you're going to throw up. The nausea continues. You can't eat. Your fever gets worse. You feel worse than crap.
In the middle of the night you look like shit. Your husband calls your surgeon and reaches his answering service. Your doctor is not on call. The answering service tells him that one of his partners is on call and he'll call you back shortly. Twenty minutes later, a doctor calls you. You spend ten minutes on the phone explaining the events of the surgery and how you feel like shit. He asks a series of questions and tells you that this is normal.
You can barely sleep. Your fever hasn't broken yet. You can't stand up to go to the bathroom, since your belly is so painful. By morning, you can't even get up out of bed. You feel like death. You're weak. You're miserable. Something's wrong.
Your husband finally convinces you to get up and get dressed. Without calling the doctor's office, you get in a taxi with your husband and head to your doctor's office. When you arrive, you can hardly walk. You're stooped over. You're sweating profusely. You start vomiting in the waiting room all over your shoes, your clothes and the carpet.
You learn that your doctor isn't even in the office today. He's away on vacation. Another partner of his will see you shortly. Shortly means one hour sitting in that waiting room chair. Not being able to move. When your name is called, you try to get up and vomit some bile and apologize to the nurse profusely.
The surgeon comes in and examines your belly. You wince in pain when he presses on your belly and he immediately tells a nurse to call an ambulance. You wonder why.
"You have an acute belly," he says. "We need to get you to the hospital and run some tests on you. You'll need an MRI. You'll need a white count. You'll need IV antibiotics. By the way, were there any complications during your surgery?" he asks you, as if you know the details of what went on during your surgery.
"My doctor said everything went well," is all he said to me, you whisper weakly.
An ambulance arrives and after twenty minutes you're transferred to a stretcher and wheeled out of your surgeon's office. You still feel like crap. You want someone to do something to get you better. You feel like a piece of meat being man-handled as you're lifted and thrown into the ambulance.
When your husband asks which hospital they're taking you to, you learn it's the closest one. It's a large municipal hospital.
"But wait a second, you tell the ambulance attendant, your surgeon doesn't work at that hospital. Is there any way you could take me to the hospital where I had my surgery and where he practices?"
You're now entering the land of medicine where nobody knows you. Nobody knows you're coming. Nobody is familiar with your condition and what's happened to you over the past few days. It's also the beginning of July. That's when newly minted doctors begin their post-graduate training known as internship. Remember, just because someone is handed a certificate proclaiming that they've just graduated medical school, does not mean they are the world's best clinician.
Ok, let's get back to your story that only gets worse.
The ambulance trip takes ten minutes. You're wheeled into the emergency room right away. A nurse asks you why you're here. You can barely talk. Your husband fills in the details. Five minutes later a young looking doctor comes in to see you. He also asks you why you're here. Your husband does most of the talking. The doctor tells you he's going to examine you.
"I'll be back in a few minutes," he says.
Ten minutes later the young doctor is accompanied by another young-looking doctor who again asks why you're there. You don't have the strength to go through this again and point to your husband. Details of the past few days are provided along with your surgeon's name. This second doctor also examines your belly and as he presses on it, you scream out in agonizing pain. He immediately releases it and says "We'll be right back."
Ten minutes later an older looking man comes in wearing a white lab coat with lots of things hanging out of his pockets. He looks like he hasn't slept in days. "We're going to get you an MRI and an X-ray of your belly. The nurse will draw some blood and I'll try and reach out to your doctor. It's possible you're going to need surgery to see what's going on inside of you," the tired-looking doctor says.
Your spouse asks some questions about who would do surgery if needed. You only want the surgeon who did your procedure to operate. "He doesn't practice here and wouldn't be able to operate on you anyway. Don't worry, we have very good surgeons here," he says as he turns around and heads out the door to see another patient.
One hour after that another doctor, an older looking gentleman with a foreign accent comes in to see you. He tells you his name, which you cannot pronounce and tells you that he's reviewed your MRI and X-ray. "I see some fluid in your belly which shouldn't be there. We need to take you into surgery now," he says.
Your husband asks what he thinks.
"It's possible there's a perforation somewhere that is leaking fluid. We need to explore your belly to find where it's coming from," he answers. What he doesn't tell you is that he'll now have to open your belly from the bottom of your rib cage all the way to your groin. None of this small incision laparoscopy nonsense. You'll learn about that massive scar later.
You're taken to the operating room thirty minutes later. The anesthesiologist give you an IV with some white liquid and tells you to start counting backwards from 100. As soon as you reach 98, you're out.
You wake up hours later in the intensive care unit. You can't move. You've got an oxygen mask on. You've got tubes coming out of every part of your body. From both arms. From between your legs. From your belly. You look around and begin to panic. You start tugging and pulling at the tubes all over your body. You scream out in pain.
Two nurses immediately run over to you and put your arms in restraints to prevent you from moving around. They try and calm you down and reassure you that you're ok. You don't know how to reconcile what they're telling you with the reality of being in the intensive care unit. A doctor rushes over to give you a powerful sedative. You sleep for the next twelve hours.
"I have some bad news. You had a perforation in your colon. It was extensive. I had to do a total colectomy. You now have a colostomy bag which will need to be reversed in three months. You are infected. The infection has spread throughout your entire body. We are treating it with the most powerful antibiotics we have. You'll need to be in the hospital for a while. I'll check back on you later," he says in a foreign accent.
Not ony was it difficult to understand him, but he was using medical words that made no sense to you. What did he mean when he said I'll need to stay in the hospital for a while?
Also, why did I have a hole in my colon? From what? And what's a colectomy? What's a colostomy bag and why would I need one? "Where the hell is my own surgeon?" you ask your husband. All he can answer is "Let's get you better and get you home."
Days turn into weeks. Weeks turn into months. It's now two months that you've been in the hospital. Two freakin' months!
First is that not many doctors communicate effectively here. There's a language barrier. Many of the doctors are foreign born or foreign trained. Second, many are really young and inexperienced. Five different doctors ask you the same damn questions over the course of a day. "Don't they read the notes from the previous doctor?" you ask yourself each day.
The infection throughout your body is known as sepsis. None of the regular antibiotics they used were effective. That explained why you were getting sicker each day. One of the senior doctors suggested using a new super-antibiotic to get rid of your nasty infection. It's just starting to work now.
Then, you asked how you got infected to begin with. Was something not sterile during your first surgery?
That wasn't the issue at all.
Instead, during your first surgery, your surgeon apparently made a hole in your bowel. Not intentionally, but carelessly.
The fluid from your bowel leaked into your belly. That fluid contained fecal matter...poop. Shit.
That shouldn't be in your abdomen. That's what started the infection. It got worse since it went untreated for a few days.
You then learned what a colectomy was. Turns out that hole was a big deal. Usually, if a hole in the bowel is small, a surgeon can simply sew it closed and call it a day. The problem was that this wasn't a small hole. If it were a medium sized hole, a surgeon can remove that part of the colon containing the hole and a portion of the surrounding tissue. Then, he can attach the two remaining ends together. That's known as an end-to-end anastomosis.
Because the hole was huge. It was enormous. By the time your belly was cut open, it was not repairable.
That meant that your new surgeon, someone you'd never met, needed to make a snap decision about what do to. He decided the only thing he could do was remove most of your colon! That was the only way to save you. Yes, it was that serious.
When he took out most of your colon, you still needed a way to have your waste (poop) exit your body. The only way to do that is to create a temporary exit hole through your belly. Since it's not very pleasant to have diarrhea coming out of a hole in your abdomen your surgeon attached a plastic bag to that opening. That is known as a colostomy and a colostomy bag.
This is done to divert the poop and allow whatever is left of your colon to heal. After it heals, most times the poop can be rerouted back to your colon and hopefully your poop will then resume exiting your butt, where it was supposed to exit.
This is too much for you to learn. You break down. You cry. You get depressed. A psychiatrist is sent in to see you in the hospital. He asks "Do you have any intention of hurting yourself or others?" You cry even more when he asks you that. You never considered that until just now.
But there's another problem. One that has you confused. It's difficult for you to remember things. It's hard for you to verbalize your thoughts. Your husband is worried since you never had a problem with your memory or ability to talk before. He pulls your surgeon aside and mentions this.
When one of the young interns comes to check on you one day, your husband pulls her aside and tells her about these cognitive problems you're having. She says she'll see if she can find out why this is happening.
Meanwhile, your original surgeon has no clue what you're going through. You don't even know if your new surgeon ever made contact with him to tell him what he did and what he found. Your original surgeon never called you to see how you're doing. Nor has he ever visited you to check in and see how you're feeling.
The next day, that young woman intern comes into your room and tells you she went through your medical records from the moment you entered the municipal hospital until now. The only thing she saw that might account for these memory problems would be the anesthesia problem you had.
"What anesthesia problem?" your husband asks.
"Well, according to the notes, the anesthesiologist had a tough time intubating you. I don't know how long you went without oxygen before he was finally able to get you intubated for your surgery," she says innocently.
This raises red flags for you. It raises more questions. "Why didn't anyone tell you about this?"
"Is this memory thing permanent?"
"Will this get better?"
You're getting frustrated.
This young intern is the only one who gave you a straight answer.
When your new surgeon visits you the next day, you ask him about the anesthesia problem.
"I really don't know what you're talking about. When I came into the operating room, you were already intubated and I started surgery immediately. The anesthesiologist never discussed with me any problem intubating you."
More frustrating answers.
That's a non-answer.
After you are finally discharged home, a visiting nurse comes to help you with your colostomy bag. It's leaked multiple times when you've tried to change it yourself. It smells. It's disgusting. It's foul. Nobody wants to be in the room with you when you have to change your bag.
A nurse comes every day for the next two months to help you with this.
Finally you return back to the surgeon at the municipal hospital for follow-up. He's going to check you and determine if you're ready for surgery to reverse the colostomy bag.
After examining you, he determines that you're not ready yet. You still have a lingering infection from the sepsis. Even though you transitioned to oral antibiotics, he's afraid that by doing another surgery while your original infection has not been eliminated simply exposes you to more risk. Infections, especially like this one, can kill.
Days turn into weeks. Weeks turn into another two months.
You then return to the surgeon for another follow up.
He believes your infection is gone and he's scheduling you for the reversal surgery.
He warns you that even if there are no problems reversing this, you are at great risk for infection because of your recent history of illness and the violent strain of bug that infected you.
He is also concerned about your ability to get intubated again by anesthesia. He read the anesthesia notes and it did indicate that there were problems trying to intubate you.
"I can't live with this colostomy bag any longer. Just get this reversed!" you plead with him.
Surgery goes well. Anesthesia goes well. However in the recovery room, you pass out and suffer a cardiac arrest. A code is called and the code team rushes to your room to resuscitate you. You need the electric paddles. Medically, it's called defibrilation. You needed to be shocked three times to get your heart restarted.
When they do get you back, you're not conscious. You're unresponsive although you do exhibit reflexes when a doctor pinches and pokes your arm. This is bad. Additional testing reveals you had a stroke. Vascular testing indicates you had a blood clot in your leg that came loose and traveled to your brain. The neurologist tells your husband this is bad.
HOW COULD THIS HAPPEN?
HOW COULD THIS HAPPEN TO YOU?
You're religious. You believe in God.
What bad things could you have done to warrant such horrible injuries?
Your husband is filled with grief.
He doesn't understand what's going one and why everything you're doing is making you worse and worse.
One evening when he goes home to rest and wash up, he calls a family friend to tell him about this nightmare of a story involving you and your medical care. His friend listens patiently. The story takes forty five minutes to explain. After he's done telling your story, his friend begins asking questions.
"WHEN was the first surgery?"
"WHERE was the first surgery?"
"WHEN did the second surgery take place?"
"How much time went by from when she had the first surgery and when she was told to come into the surgeon's office for follow up?"
"Did you try going to the emergency room BEFORE returning to the surgeon's office for follow up?"
"Did you speak to any other doctor in between the surgery and when you saw his partner in the office?"
"Has any doctor criticized the care she received?"
"Tell me again how you learned that she may have had a lack of oxygen during her second surgery at the municipal hospital..."
Your family friend tells you that he needs to get copies of all her medical records.
From the surgeon. From the first hospital. From the second surgeon. Then, he'll read all those records and send them to a board certified surgeon to evaluate. "It won't cost you a dime," he reminds him.
Your family friend is a medical malpractice attorney in New York.
Since you are unable to sign permission slips to get copies of your medical records, your husband has to be named as your temporary guardian to make certain decisions for you. Also, the lawyer won't be able to get your medical records from the hospital you're currently in until you've been discharged.
It takes about three months to get your medical records. Since that time, you were discharged to a rehabilitation facility. You regained consciousness but have difficulty talking, eating and speaking. You can't move the right side of your body either. You have a droop on the right side of your face and your neurologist tells you that the nerve controlling that muscle has been damaged. "It's unlikely that will improve," he tells you.
As your lawyer reads through your medical records he's looking for a smoking gun. He's trying to find the initial events that brought you to this point today. He needs to determine if the treatment you received was appropriate or did it violate the basic standards of medical care. One month later, he has the answers to all his questions.
Your familly friend comes to visit you and your husband at the rehab facility and here's what you learn...
Your lawyers' surgical expert suspects that the doctors-in-training who were assisting your surgeon were inexperienced. He also knows that the hospital where your surgery was done was a teaching hospital, which means there's a good chance it was a young, inexperienced doctor who actually performed the procedure and your surgeon was merely assisting or supervising.
Had your bowel injury been recognized when it happened, you likely would have still needed major abdominal surgery, but there's a good chance you would not have needed to have your entire colon removed. Instead, a surgeon could have removed a segment of the damaged bowel and put the two remaining ends together.
When you went to the municipal hospital by ambulance and had emergency surgery, the anesthesiologist accidentally inserted the breathing tube into your stomach intead of your lungs. During this time, you were not getting ANY oxygen to your brain. Only after the oxygen saturation alarm triggerd did he realize the problem. Then, he frantically attempted to pull it out and reinsert in into your lungs.
It didn't work. He had to remove all the tubing after realizing this was not working. Minutes went by without you getting any oxygen to your brain. That would account for why you were having difficulty remembering and your inability to talk.
Months later when you went back to the municipal hospital to have your colostomy reversed, your doctors failed to account for your higher risk of developing a blood clot and failed to anti-coagulate you before and after your surgery. As a result, you suffered a massive blood clot from your leg to your brain resulting in permanent neurological injury.
Your family friend tells you that all of your injuries stem from your original surgeon failing to timely recognize and treat your bowel injury. The mere fact that your bowel injury happened is NOT evidence of malpractice. Instead, it was the FAILURE to RECOGNIZE your bowel injury that rises to the level of improper medical care.
Since this involves a municipal hospital, you have only 90 days from the date of the wrongdoing in which to file a notice of claim and only one year and ninety days to file your lawsuit. With regard to your original surgeon and the private hospital, you have two and a half years from the date of the wrongdoing to file suit.
Your lawyer tells you he can do all of this at once and get this rolling. You and your husband agree to proceed forward. You have no choice. You have now become permanently disabled. You have life-altering injuries and will require medical care and treatment for many years to come.
Let's recap briefly here...
In order for your lawyer to determine if you had a valid medical malpractice case, he needed to show that you were more likely right than wrong that (1) Your doctor was careless, (2) His carelessness caused you harm and (3) Your injuries are signficiant and/or permanent. All of those things had to be confirmed by a medical expert who either treated you or reviewed your records.
In this case, all three of those elements are present which now allows your lawyer to file a lawsuit on your behalf.
Let's fast forward through three years of hard fought litigation. You're now at trial. In New York, the trial level court is called the Supreme Court of the State of New York. Each county has their own trial court.
Your lawyer must put on witnesses and evidence to support your case. He must show that you are more likely right than wrong that the doctors and hospital staff violated the basic standards of medical care. He must also show that you are more likely right than wrong that the carelessness was a cause of your injury. Then he must show that your injuries are significiant.
There are two different types of damages they will consider.
The first is ECONOMIC damages.
That's where it can be calculated. For example, if you were earning $100,000 a year and have been unable to work for the past three years, your lost earning for all three years would be $300,000.
A jury will also consider the amount of earnings you will lose in the future. Again, if you were earning $100,000 a year and you can no longer work in the type of job you had and you would have worked for another 20 years, an easy calculation would be 20 years multiplied by $100,000 for a total loss in the future of $2,000,000.
But remember, the value of a dollar today will not be the same as the value of a dollar in ten or twenty years. That means we will need to bring in a witness who can explain to the jury how the value of money changes over time. This type of expert is known as an economist. This expert will explain how you likely would have received bonuses and your salary would increase over time. The benefits you received also had value that increases over time.
Another type of damages the jury will consider is NON-ECONOMIC damages. These are things that are not readily calculated. This includes the pain and suffering you've endured over the past few years. It includes your inability to do your life's daily activities. It involves looking at what you were able to do before you were injured and what you're unable to do today.
The jury will be allowed to evaluate the suffering and the pain you experienced from the time of the events up until the trial. That's known as 'past pain and suffering'. But what about the future? What will the future hold for you?
During trial, your attorney will have evidence to show what your life expectancy is. If you can be expected to live, statistically speaking, another thirty years, the jury will evaluate wether your injuries will affect you for the next thirty years. They are permitted to give you money for your future pain and suffering that you can be expected to endure during that time.
In the fact pattern I describe in this article, we have a failure to timely diagnose and treat a bowel perforation resulting in sepsis and the need for a total colectomy. There are multiple medical errors that continue to happen to this unfortunate patient that further compound her injuries along the way. Each one becomes responsible for the damages and harms they caused to this patient.
It is certainly possible that a jury listening to this fact pattern and medical experts could readily decide that you are entitled to receive $1 million dollars just for the pain and suffering you've gone through in the past few years. It's also possible for the jury to determine that your injuries into the future are worth many more millions.
That does not even begin to address the economic losses you've suffered because of your doctor's carelessness.
This is nonsense and let me tell you why.
Do you think any injured patient in their right mind would consider all they went through and all the injuries they suffered 'hitting the jackpot'? Do you think any rational person would say "Hey, give me a million dollars and in exchange, I'll gladly go through all the pain and all the suffering that you endured?"
The answer is, of course not.
But that's what you went through.
If I were to ask you which would you take, to go back in time to when you were healthy or go through this life of hell and get $1 million dollars for your lifelong permanent injury and disability, which one would YOU choose?
I know the answer.
So do you.
A jury verdict of $1 million dollars is NOT winning the lottery.
It's not a jackpot!
Instead, it's merely the only form of compensation our legal system allows.
It only happens when we can show that someone was careless and that wrongdoing caused you injury.