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A Medical Malpractice Victory

In a medical malpractice case, sometimes the attorneys for the victim do such a good job that defense counsel appeals just for the sake of appealing—out of spite, as it were.

Recent Example

In the case of Philippon v. Shreffler, the victim of malpractice by a novice surgeon was awarded $2.15 million for her botched hip surgery. In trying her case, her attorneys pulled out all the stops. They called multiple expert witnesses, including the physician who had treated the victim for her post-surgical pain and suffering, who testified that he could discern no other possible cause for the injuries than incompetence on the part of the surgeon. They obtained a copy of the surgeon’s “privileges list,” a document from the hospital showing which procedures the physician was authorized to perform and how many times he had performed them. They brought in a surprise witness, the assistant who had attended the surgery, who testified that he had made an unusual extra incision for the purposes of “removing a foreign object,” though she saw none removed. The assistant also noted that he (the surgeon) had done the procedure at most three times before. And they argued the case fiercely in closing arguments, pointing out how the defense team had delayed in handing over the privileges list and describing the defense attorney as “cocksure” (a term that quickly drew an objection from the other side).

The Defense’s Reaction

The defense team, clearly dismayed by the large verdict in favor of the plaintiff, decided to appeal the case before the Florida Court of Appeals. In their appeal, the hospital and surgeon argued that each of these trial tactics on the part of plaintiff’s counsel was unfair or improper. They claimed that the trial court judge had repeatedly abused his discretion in allowing the tactics to proceed, and that they should have been granted a mistrial on the basis of the unfair closing argument (they took issue especially with “the cocksure comment”).

The Court of Appeals, however, rejected all of the arguments, finding that none of them had legal merit. The additional expert witness for the plaintiff, they found, was perfectly fair as a way of balancing against the fact that there were two separate defendants. They saw no problem with the admission of the privileges list, since it was relevant evidence. They were unimpressed with complaints about the surprise witness, saying that it taxed credulity to imagine that the hospital actually was surprised by the existence of the surgeon’s assistant. And as for the “cocksure comment,” they said that, while perhaps a bit over the line, the remark was no basis for a mistrial. The verdict was fair in substance, and a single heated statement couldn’t serve as a basis for overturning it. In short, this was a victory for the plaintiffs on all counts.

This is the kind of trial every medical malpractice attorney aspires to conduct: one where the opposing side is so thoroughly trounced that an appeal is an utter waste of time. It’s the kind of trial you can expect from the medical malpractice lawyers at Gary Roberts & Associates.

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