The Velvet Hammer

The Velvet Hammer

Stritmatter Kessler Whelan
200 2nd Ave West
Seattle WA 98119
206.448.1777 tel
206.728.2131 fax

Tips for Attorneys: Begining the complaint with a bang – the case synopsis

Posted in About practicing law, About writing

heather1

 

We are changing the way we read.  Short has not just become better.  It has become essential in the quest to capture the attention of our audience.

Pedantic legal writing is no longer highly valued by judges.   With crushing case loads, our Honors need us to get right to the point.  They impose page limits on us.  And even then, will sometimes admit they haven’t read our pleadings.

On the other hand, we have legal formalities that must be followed.  And certain loaded legal phrases have precedential import and meaning.  For example we can’t just say – we are suing X.  We need to deal with our state’s community property laws and so say:  ”X and Y are husband and wife, the acts and omissions of X alleged herein were done for an on behalf of the marital community of…”

One of the most important lessons I learned in high school journalism, was to grab the reader’s attention immediately.  Not half way down the article.  Not with subtlety.  But meaningfully.  With oomph.

This lesson applies in litigation.  In complaints and motions of any length, I include a preamble or synopsis.   This writing device helps to frame the issues.  It is reader friendly.   And assists with digesting the numbers of details that must follow.  If a judge is swamped and cannot read the entire document,  knowing they have at least read that first initial preamble gives me some solace.

Here is the synopsis used in a medical negligence complaint.    The synopsis is 1 page long.  The complaint totals 14 pages.

CASE SYNOPSIS

Hospitals and their staff are in the business of diagnosing and treating emergency medical conditions.  This is what they are trained, expected, and paid to do.

27 year-old Heather Spriggs had been in the Grays Harbor Community Hospital before.  She was a survivor of childhood lymphoma and had ongoing health issues most likely related to the treatment of the cancer.

Around 5:00 a.m., October 27, 2011, Heather was taken to the ER with a new problem.  Her legs were painful, without pulse, and cool to touch.  She had difficulty walking.  The ER doctor assumed this was related to congestive heart failure and did not call in a specialist to address her leg complaints.  The physician’s assistant jumped to the completely wrong conclusion that her complaints were related to neuralgia (nerve irritation) and did not call in a specialist.

Heather was placed in a hospital bed and then left without further medical care until she went into cardiac arrest at 9:30 that night.  Not until 8:15 the next morning did a doctor examine her legs at which point he noted they were beginning to turn black.  Only then was a vascular specialist called in to see Heather.

By then it was too late.  The specialist opined that Heather had suffered a cardio-embolic event involving her legs.  Since she was now in acute multi-organ failure, the specialist could not perform an operation to save her legs.  She was flown to UW Hospital where her legs were both amputated above the knee.

If Grays Harbor Community Hospital had taken the time and used proper care to diagnose and treat Heather, she would have both legs today.  She would not have suffered the devastating consequences associated with the infarctions in her legs and multi-organ failure.

Photo:  Photo included in the case synopsis in the complaint.

Complaint:  Amended complaint

Breaking the SuperLawyer Glass Ceiling

Posted in About me, About Nala, About social networking, Women

cheekwood

J.R.:  Hi Karen, I thought of you when reading the SuperLawyer Top 10.  Are you the first woman to do this?  CONGRATS!

K:  Uh.

Go to www.superlawyers.com top list for Washington.  Interesting.  Appear to be in the top 10.  Walk down hall to Catherine’s room.

K:  Someone said I made Top 10 superlawyers.

C:  I told you that months ago, but you were typing and said – oh nice – and didn’t even pause.

K:  Oh.

Return to own office.  Look up past 11 years of superlawyers’ existence.  Two other females have made the top 10.  Carolyn Cairnes, an employment lawyer in 20o4.  Karen Jones, deputy general counsel for Microsoft, the last time in 2009.

Write back to J.R.:

K:   Hi J.R.  I didn’t even look at the list until I read your email.  I wish more women were listed in the top 100/top 10.  At least there’s 1 this year.

Stew.

And wish it didn’t matter.

Photo:  by Noelle Greig of me looking not particularly lawyer-like at Cheekwood Botanical Garden, Nashville TN

Link:  http://www.superlawyers.com/washington/toplists/Top-10-2014-Washington-Super-Lawyers/a5ae355fbd0de73bbc8ab3da0084a3a8

 

 

The almost tantrum: a tale of typical trial lawyer self control

Posted in About practicing law

straight

It’s a drizzly Sunday.  Have popped into the office to work on a settlement letter.  Nala is chewing on her antler.  Am eating my favorite pastry from Macrina bakery – the orange pinwheel.   Superb as usual.

Am working on the letter.  But also engaging in typical bounce around behavior.  Read incoming email from co-counsel on a different case. Defense attorney wants a continuance on a summary judgment motion.  This is the fifth motion in a string of motions.  Maybe it’s the fourth.  Or the sixth.  Have lost count.

E:     I assume everyone will agree to the continuance based on his past courtesies.  Anyone disagree?

K3:  Screw him regarding all of these MSJs.  No.

K3:  And if you want me to tell him so I’m happy to be the bad guy and tell him tomorrow.

E:    I have no problem if that’s our stance.  But why risk our relationship.  And he’ll just run to court and get the continuance.

K3:   I would like to risk my relationship with him and spare yours.  I’ve never had a case where they have filed this many piecemeal MSJs all in a row like this.  Screw them.

E:    We have been late on some deadlines as well.  I really don’t think we should do this.

K3:  (fingers in ears).

E:    Okay, I told him.  He’s not happy with us and is pointing out our own deficiencies.  Please let me know if you will reconsider.

K3:  Okay.  But when you tell him yes make sure he knows I’d like to scratch his eyes out.

… the next day

E:   What was all that about.

K3:  I was tired of being nice.   I felt much better afterwards.

E:   Well I told him we agreed to the continuance but also that you wanted to scratch his eyes out.

K3:  Really.

E:   No.

Photo:  Selfie with straight hair  courtesy of Joy from Gary Manuel.  It lasted for a day before reverting back to curly madness.

 

The non-visitor: a story about never saying you’re sorry.

Posted in About practicing law, Client heroes, True life stories, Women

MarissaCindyBrianna

Walk up to door one.  Open and walk through.  Door two.  Push button.  It clicks.  Enter.  Write name and time on log at front desk.  Write name on tag and stick on shirt.  Cindy arrives and says hello.  Follow her down the linoleum covered hall.  Past the man in a wheelchair.  An open door reveals a woman in bed watching tv.  A hunched over man looks at me from another open door.   His leg is bandaged.   Walk towards the eating area where several others are congregated.  Mostly in wheelchairs.  Chatting.  Average age probably middle 70s.  Or older.

Reach Marissa’s room.  She is in a wheelchair.  A plastic toy drum on her lap.  Eyes closed.  Sleeping.  Next to her is Brianna, her sister.   When I first met Marissa she was 20 and Brianna was in the 4th grade.  Brianna is going to be a high school junior in the fall.  Cindy sits on the bed.

Marissa had just graduated from high school when she was struck head on by a teenager who crossed the center line.    Marissa’s car was pulverized.   And so was she.  The other teenager exited her vehicle unscathed.  We sued the car manufacturer and the negligent driver.  Years ago.

Marissa sleeps.  Cindy, Brianna and I talk.

Me:  Has the other driver ever visited.

Them:  No.

Me:  Have her parents.

Them:  No.

Me:  A phone call.

Them:  No.

Me:  A card.

Them.  No.

Me:  It is not for me to forgive.  Marissa is not my daughter.   And I believe in forgiveness.  But I do not understand how you can forgive someone who changed your daughter’s life and that of your entire family – who has never even said they are sorry.

Them:  We thought that they would.  We were waiting for it to happen and wondering if it would make us feel differently.  We believed it would.  But they never did.  And we have given up thinking that they ever will.  And we try not to think of it.

Me:  I mean, maybe the insurance company or their lawyer told them not to say sorry because that would mean they were at fault.  Maybe I could understand that.  But this case has been over for how long now.

Them:  It happened eight years ago and ended six years ago.

Me:  Yeah.  No excuse.

Them:  Can’t believe eight years have gone by.

Me:  It’s not just that Marissa will have to live in a nursing home for the rest of her life.  It affected your entire family.  Brianna spent so much of her childhood in this nursing home.  You still come here every day.  You have spent hours, days, weeks, months, years here.  And they have never said they are sorry.  It just makes me mad.

Them:  We see them sometimes out in the community and they never acknowledge us.

Me:  It was not intentional.  She was a young, inexperienced and bad driver.  That did not make her a bad person.  But if my child had wrecked a family, I would feel morally obligated to reach out to them – to let them know that I cared and was so sorry.

Them.  Us too.

Me:  I mean, send a card.  Do something.  Do anything.  Be a decent human being.

Them.  Yes.

Cindy gently shakes Marissa.  She opens her eyes.  Gets cleaned up.   We caravan down the linoleum halls.  Past another locked door with a buzzer.  Out to an empty courtyard.  In the beautiful spring weather.  Under a tree with a red robin’s nest.  Listening to the chirping.  Waving away the occasional bee.  As Marissa bangs on her drum.

Photo:  Marissa, Brianna and Cindy.

 

 

Trial tips for attorneys: Throw these phrases out with the trash

Posted in opening statement, Teaching, Trial Tips for Attorneys

dan

We lawyers are trained to be precise.  Everything we say has to be supported.  If we’re laying out facts to a judge – we need to cite to the source every single time.   This breeds a habit of presentation that can be overly meticulous and filled with legalese.  It can be a hard habit to break.

In trial, a good way to doom an opening statement, is to recite lists of data.  We know that people learn more easily through story telling.  So we set out to tell a story.  But before long, we find ourselves lapsing into our data based ways.

The following phrases are loved by lawyers.  They are not loved by real people.  They are space fillers.  They are time wasters.  They interrupt the flow of a story.  They are triggers for the lawyer to spew data.  These phrases add nothing to an opening statement.  They need to be retired:

  • The evidence will show
  • The witness will testify that
  • You will hear from

Photo:  Dan’l Bridges giving the defense opening statement at the Advanced Trial Advocacy Program at Seattle U Law School today.  Hon. Judge John Chun presiding.

 

 

Protecting a disabled adult from an unfair deposition

Posted in About practicing law, depositions

order1

The betrayal via rudeness by a former associate was not just a story.  It was part of a case.

I said: we will not go forward on a deposition until the court rules on a pending a motion for protective order.  He responded by threatening to seek terms against me.  So we (Garth) filed a motion to expedite the protective order hearing.

As expected, when push came to shove, the defense lawyer did not seek the terms he threatened.  Still, he couldn’t resist: a) insinuating that because he used to work for us, he knew us and what we were doing; and b) engaging in hyperbole.

  • “I am a former associate and law clerk at the firm of Stritmatter Kessler Whelan Coluccio, which is currently known as Stritmatter Kessler Whelan. I have reviewed Exhibit 8, infra.  In the upper right hand corner is a circled “K3″. I know this to be Karen Koehler’s initial that she has reviewed a document.”
  • “Plaintiff’s counsel’s speculation regarding some nefarious plot by a rogue associate is highly inflammatory, completely false, and contrary to the record.”

In response, the Federal Judge swiftly entered our motion to expedite the protective order hearing.  The defense filed its ojection to our protective order motion.  And the Court granted our motion almost entirely in full.

Deposition protective order:  SKMBT_C55214050508300

 

Part 3:Depositions of treating providers in a medical negligence case resulting in bilateral leg amputations.

Posted in About practicing law, depositions

timeline4

One of the hospital’s defenses was that it was a small community hospital.  It did not have all the fancy equipment of a major urban hospital.   The problem with this defense was that the hospital didn’t need an expensive machine to make the correct diagnosis.  All it needed, was for someone to: a) notice the red flags; and b) pull a hand held doppler unit out of a cupboard. 

Let’s see what was done to check the patient’s pedal pulses:

The Physician’s Assistant

                            72

22   Q     What did you find with respect to the legs when you did

23         your examination?

24   A     My examination revealed pedal edema, generalized

25         tenderness throughout the lower extremities, cool to

                            73

 1         touch with deep tendon reflexes intact and sensation

 2         intact and capillary refill time intact.

 3   Q     What were your conclusions with respect to Ms. Ss’

 4         limbs, lower limbs?

 5   A     That she was edematous.  I believed it was likely her

 6         CHF (Chronic Heart Failure)  that was causing the edema.  And that she had some

 7         tenderness that I would treat and work up.

 8   Q     As you sit here today, have you second-guessed yourself?

 9         Did you make the correct call that day?

10                MS. EK:  Object to form.

11   A     Correct call in what sense?

12   Q     (BY MS. KOEHLER)  In your evaluation of her lower

13         extremities?

14   A     Did I do a good job?

15   Q     Do you believe that you did the correct course of

16         treatment for HS?

17   A     I believe I examined her appropriately and treated her

18         with what knowledge we possessed to the standard of what

19         she deserved as a patient at our hospital.

20   Q     Really?

21   A     Yes.

22   Q     During your relatively short career had you actually

23         examined and treated a patient who ultimately would go

24         on to lose their legs?

25   A     I have not.

                            74

 1   Q     She was your first and only?

 2   A     Yes.

 3   Q     How did you check the pulses in her legs?

 4   A     I had her lift her big toe to approximate where her

 5         pedal pulse would be and then using my first and middle

 6         finger attempted to feel for pulses.

 7   Q     Could you feel her pulses?

 8   A     I could not.

 9   Q     Did you make another effort to feel her pulse?  Did you

10         use any kind of machine?

11   A     No, I did not use any kind of machine.

12   Q     Why not?

13   A     She presented with an amount of edema that palpable

14         pulses would not be obtainable.

15   Q     Did you attempt to use a Doppler?

16   A     I did not.

17   Q     Why not?

18   A     I believed her main issue was the CHF and pulling the

19         fluid off would resolve her symptoms.

20   Q     But her main issue wasn’t her CHF, right?

21                MS. EK:  Objection.  Argumentative.

22   A     I – I don’t know that.

23   Q     (BY MS. KOEHLER)  If you couldn’t check her pulses

24         manually, why didn’t you use a Doppler?

25   A     As I said, I believed it was the CHF that was causing

                            75

 1         the pedal edema and diuresing, her as we did last time,

 2         would relieve that.

 3   Q     What – how did you double-check your belief?  Did you

 4         take your belief to one of the doctors that was on call

 5         or on staff and – and tell them of your assumption that

 6         the lack of pulse was due to CHF?

 7                MS. EK:  Object to form.  Compound and

 8         argumentative.

 9   A     Are you asking me if I discussed the patient or

10         discussed that specifically?

11   Q     (BY MS. KOEHLER)  That specifically.  I’m asking about

12         the specifical – specific decision when you couldn’t

13         feel a pulse –

14   A     Mm-hmm.

15   Q     — and just to assume that it was related to CHF and

16         that another course of treatment would resolve it, was

17         that something that you did on your own or did you use

18         the resources at the hospital to consult with at that

19         time?

20                MS. EK:  Object to form.

21            Go ahead.

22   A     I don’t remember if I discussed that specific finding.

23   Q     (BY MS. KOEHLER)  Who would you have discussed it with?

24   A     Dr. B.

25   Q     Was it concerning to you that you could not detect her

                            76

 1         pulse in her legs?

 2   A     No.

 3   Q     How many patients have you examined where you could not

 4         palpate their pulse?

 5   A     I can’t give an exact number, but many who have

 6         edematous lower extremities and CHF.

 7   Q     Yeah.  Like how many?

 8   A     I honestly couldn’t give a number.  It’s moderately

 9         small to moderately large, I would guess.

10   Q     Within – so you had been – you had been doing this for a

11         year.  You can’t give us an estimate?  Was it something

12         that happened all the time?  Was it something that was

13         occasional?

14   A     Well, we have –

15                MS. EK:  Objection.  Calls for speculation and

16         asked and answered.

17   A     We have quite a few CHF patients and at least half of

18         them will come in without palpable pedal pulses.

19   Q     (BY MS. KOEHLER)  Okay.  And how many of them will come

20         in with mottled legs that are cool to touch and – and

21         have no pulses?

22   A     All three of them?

23   Q     Yes.

24   A     I would say not many.

25   Q     Okay.

                            87

12   Q     (BY MS. KOEHLER)  Did you have access to a handheld

13         Doppler?

14   A     Excuse me.  Yes.

15   Q     Where was it?

16   A     I don’t know.

17   Q     Would it have been on the third floor?

18   A     Not necessarily, no.

19   Q     Would it be difficult to – if you wanted it to get it?

20   A     No.

21   Q     And if you were to use a handheld Doppler, how long

22         would that exam take?

23   A     Anywhere from 30 seconds to a minute depending on how

24         difficult.

The P.A.’s mantra – is that the patient had CHF (chronic heart failure) which caused her legs to be edematous (swollen) and because of that he could not detect pedal pulses.    Interestingly, the ER doctor testified exactly the opposite. 

The ER Doctor     

                            34

14     Q   Did you test her pulses in her legs?

15     A   Yes.

16     Q   Where is that noted?

17     A   It’s not.  It isn’t.

18     Q   What is pedal edema?

19     A   Pedal edema is swelling of the lower extremities, usually

20         foot, ankle region.

21     Q   She had that?

22     A   Yes.

23     Q   How significant was the swelling?

24     A   I don’t remember it being horrible, but enough to where

25         it bothered her.

                      62

12     Q   (BY MS. KOEHLER)  So you believe you did check her pedal

13         pulses but you didn’t write them in the chart?

14     A   I do.

15     Q   And if you check pedal pulses, aren’t you supposed to

16         write them in the chart?

17     A   Absolutely.

18     Q   And why is it important to write them in the chart?

19     A   Because it would be clearly documented.

20     Q   How did you test for them?

21     A   Just by palpation.

22     Q   Was that easy to palpate?

23     A   I don’t recollect.

24     Q   Could you easily detect them?

25     A   I don’t recollect.

                            63

 1     Q   Is it significant whether it’s difficult to palpate?

 2     A   It – it can be.  But it depends.

 3     Q   Sorry.  Just one moment.  Did her edema inhibit you in

 4         any way from checking her pulses?

 5     A   I don’t remember her being that edematous.  I mean she

 6         had edema.  But there’s levels of it I guess.  And I

 7         don’t remember hers being just so doughy and large that

 8         you couldn’t.

 9     Q   How – how much edema was present?

10                   MR. ANDERSON:  Object to the form.  Go ahead and

11         answer if you can.

12     A   Try to.  She had some pitting edema.  But it wasn’t like

13         she’d had an extra inch or layer of subcutaneous tissue

14         or anything like that.

15     Q   (BY MS. KOEHLER) Was edema only in her legs?

16     A   Yes.  As I recall, yes.

17     Q   Was it from the knee down, from the thigh down?

18     A   It was mostly just from the – the ankle area up into the

19         – what we call the pretibial region.

20     Q   All right.  Bilaterally?

21     A   Yes.

22     Q   Equal?

23     A   Reasonably so.

                            40

 3     Q   If you were – if you were unable to detect a pulse in a

 4         leg, would you use a handheld Doppler?

 5     A   You – oh, you could to see if they had a pulse.  I guess

 6         I misunderstood your question.  Yes, you could.

 7     Q   Okay.  Would that be standard of care?

 8                   MS. EK:  Object to the form of the question.

 9                   MR. ANDERSON:  Overly broad.  But you can answer

10         if you understand it.

11     A   It depends.

12     Q   (BY MS. KOEHLER) If you couldn’t detect a pulse, would it

13         be standard of care for a physician in your hospital to

14         use a handheld Doppler to see if you could detect a

15         pulse?

16                   MS. EK:  Object to the form of the question.

17         This isn’t a witness who’s an expert for all the doctors’

18         specialties in the hospital.

19                   MR. ANDERSON:  Lacks –

20                   MS. KOEHLER:  Your speaking objections, they’re

21         improper.  You’re just supposed to say, “Object to the

22         form.”

23                   MS. EK:  You’re asking him an expert question.

24         It’s inappropriate.

25                   MS. KOEHLER:  Then you just say, “Object to the

                            41

 1         form.”

 2                   MS. EK:  That’s not my objection.  My objection

 3         is your question is inappropriate.

 4                   MS. KOEHLER:  No.  But your – your objections

 5         are inappropriate.

 6                   MR. ANDERSON:  I’m going to join that objection

 7         and also say lacks of foundation.  Go ahead and answer if

 8         you can.

 9                   THE WITNESS:  Can you repeat the question?  I

10         got lost there.  I’m sorry.

11                   MS. KOEHLER:  I’m shocked that you couldn’t

12         follow that question now.  The court reporter will read

13         it back to you.

14                             (Pending question read by reporter.)

15                   MR. ANDERSON:  Same objection.

16                   MS. EK:  Same objection.

17     A   Because the answer is still not necessarily.

18     Q   (BY MS. KOEHLER) Can you elaborate?

19     A   Yes.  I mean I think that it may be helpful.  If you find

20         it with that, that could be helpful.  If you don’t, it’s

21         still – there’s still other means you might try to use to

22         find a pulse, once again getting radiology more involved.

 

It is a perfect mirror opposite.  The ER doctor says HS does not have much edema and that he felt her pulses but forgot to write them down in his chart notes.  The PA  says she had too much edema and that he could not feel her pulses. 

Enter the nurse.  Her knowledge is based upon her nursing notes.  This means, if she doesn’t keep good notes, she doesn’t have good knowledge.

The Nurse :

                            13

 

10     Q   Okay.  So she had edema in both of her legs?

 

11     A   Yes.  But one plus is not much at all.

12     Q   She had some edema in both of her legs.

13     A   Mm-hmm.

14     Q   Both of her legs are mottled.  And you don’t know if they

15         were cool to touch?

16     A   I do not recall.

17     Q   And she had dusky nail beds.  But you don’t know if those

18         were of the feet or of the hands.

19     A   I do not recall.

20     Q   Did you check her pulses?

21     A   I do not recall.  I’m sure I did, but I do not recall.

22     Q   Did you chart that you checked her pulses?

23     A   Well, we have a place where we chart that.  And we chart

24         by omission.  So if it was normal or present, then we

25         don’t put anything down generally.

                            14

 1     Q   Did she have pedal pulses?

 2     A   Let me look through here.  I don’t remember.  Where is

 3         the cardiac?  Where is the cardiac place?  Oh, here we

 4         go.  I didn’t mark anything so it must have been present.

 5         I can’t surmise that because I don’t remember.  But if we

 6         leave it blank, that generally means that they were

 7         present if we checked them.

 8     Q   They were present if you checked them, but you don’t know

 9         if you checked them or not?

10     A   No.  It was two years ago.  I don’t remember the

11         assessment.  I don’t remember her.  I’m sorry.

                             16

  13     Q   Did you ever use a doppler on Ms. S?

14     A   I don’t remember.

15     Q   Can you . . .  If you choose to use a doppler if you

16         can’t detect a pulse, are you authorized to use a

17         doppler?

18     A   Yes.

19     Q   How difficult it is for – is it for you to get one?

20     A   It’s not.

21     Q   Where are they located?

22     A   In the medication room in a cabinet.

23     Q   Are they on the same floor?

24     A   Yes.

25     Q   Do you need special permission for that?

                            17

 1     A   No.

Photo:  Slide from  Timeline PPT by Duane Hoffmann.

The bad student: a story from when I used to teach piano

Posted in About me, Teaching

bad student

 

I started teaching piano as a sophomore in high school.  By then, I was going on my seventh year of piano.  Vy Husted, my own teacher, acted as my supervisor.  And I went through a training program.  My parents let me turn part of our rec room into a classroom.  Two pianos and a double sided chalkboard.  This was no joke. 

The first year I had a small class.  They had one lesson with their partner.  And one lesson with the entire group.  Each week.

My students were for the most part conscientious.  They wanted to learn to play the piano.  Predictably there was one bad student. 

He wasn’t disruptive or rude.  He could have learned to piano if he had wanted to.  But he wanted to be kicking or hitting a ball around outside.  He slouched on his seat.  Never practiced.  And tried to fake his way through the lessons.

My first inclination was to wonder what I was doing wrong.  Why couldn’t I motivate him.  Eventually I stopped taking this so personally.  The kid just didn’t want to be there.  So his parents and I had a talk.  And we all said goodbye.

Years later, I reconnected with him. 

Blake Kremer is mainly a criminal defense lawyer, but also handles personal injury cases.  He’s running for the WSBA Board of Governor’s 6th district position.

Blake does a lot of pro bono work.  This is my favorite example: 

From the time I was a high school student I had a private ambition that I would someday be a lawyer fighting for a peace activist like Sister Anne Montgomery. Sister Anne taught troubled youths at the Street Academy of Albany, travelled internationally with Christian Peacemakers, and brought attention to nuclear weapons through her work with the Plowshares movement. When she and Father Bill Bichsel and several others broke in to Kitsap Naval Base in 2009 to bring attention to the stockpile of weapons there, I served as her team’s attorney, eventually joined by several others for their trial in Federal Court in Tacoma. That is when I began working with Ramsey Clark, a former US Attorney General and now peace activist. I have continued to represent peace activists on a pro bono basis, and occasionally meet with activists at local churches to discuss constitutional rights and arrest procedures.

 I hope you vote  between now and May 14, for this bad piano student turned true believer in the power of justice lawyer.  Here is Blake’s website:  www.kremerlaw.com .

Photo:  Carbon copy of a receipt directed to the bad student’s dad.  Note the mispelling of Mr. Kremer’s last name.

 

Part 2: Deposition of treating providers in a medical negligence case resulting in bilateral leg amputations.

Posted in depositions, Tips for Attorneys, Uncategorized

timeline2

 

This next deposition excerpt series is summed up as:  The Doctor Versus The Nurses.

Being evasive in a deposition does not play well in front of a jury.  The witness here believes he is scoring brownie points by not answering the questions.  The best way to deal with an evasive witness is to let them evade to their heart’s content.   

Again, this does not work so well if the lawyer asking questions sticks strictly to an outline.  If an evasive answer is given and you simply ask the same question again and again you become part of the problem.  You will draw the customary objection: asked and answered.  The witness will begin to simply repeat the same evasive answer to the same question.  Until someone gives up.

In this excerpt, the doctor uses a word that will ultimately become perhaps the single most important word in the liability case.  The word is not a medical term.  It is a word of common usage.  It will impact credibility.  And will create a hole for the defense that will be impossible to dig out from.  The word is: significant.

The Doctor:

                            49

15      Did you review the nursing notes?

16     A   We typically do not review the nursing notes.

17     Q   If the nurses note abnormalities, how do you get that

18         information?

19     A   If they think it’s significant, they report it to us.

20     Q   If there is a significant abnormality, do they have a

21         duty to report it to you?

22                   MS. EK:  Objection.  Calls for a legal

23         conclusion.

24     A   I cannot speak for them.

25                   MS. GRIFFITH:  Join.

                            50

 1     Q   (BY MS. KOEHLER)  Do you expect nurses to report any

 2         abnormal condition or symptom to you?

 3     A   If it’s significant.

 4     Q   How do they know if it’s significant or not?

 5     A   It’s their job.  I can’t speak for them.

 6     Q   Is a – is it a significant finding if lower extremities

 7         are mottled?

 8                   MS. EK:  Objection.  Incomplete hypothetical.

 9                   MS. GRIFFITH:  Join.

10     A   Depends.

11     Q   (BY MS. KOEHLER)  Were you aware – made aware by any

12         nurse at 8:30 p.m. – no; sorry – 8:30 would be a.m. on

13         October 27 that Ms. Spriggs’ lower extremities were

14         mottled?

15     A   No.

16     Q   Would that have been a significant finding?

17                   MS. EK:  Objection.  Incomplete hypothetical.

18     A   Yeah.  I can’t speak for the nurses.

19     Q   (BY MS. KOEHLER)  If you don’t know whether having

20         mottled extremities is significant, how would a nurse

21         know that?

22                   MS. EK:  Objection.  Argumentative.

23     A   Sorry.  I don’t get that question.

24     Q   (BY MS. KOEHLER)  Why is it . . .  Why is having mottled

25         legs not a significant finding?

                            51

 1     A   Who said it’s not significant?

 2     Q   Is it significant?

 3                   MS. EK:  Objection.  Incomplete hypothetical.

 4     A   I can’t – I can’t tell what the nurses saw or wrote.

 5     Q   (BY MS. KOEHLER)  If legs are mottled, is that a

 6         significant finding?

 7     A   I cannot speak for the nurses.  You are asking a

 8         hypothetical question.

 9     Q   I’m asking you as a doctor.  If you saw –

10     A   As a doctor –

11     Q   As a doctor, if you saw mottled legs, would you find that

12         to be significant?

13     A   Sometimes patients have skin changes that, you know,

14         would come and go, so this would make it insignificant.

15         If it’s persistent, it would make it significant.

16     Q   Would it be significant if the change to the mottled legs

17         25 minutes later was that they were now cool and mottled?

18     A   It – it doesn’t make much difference, the fact that it’s

19         cool.

20     Q   Cold and mottled is no different than just being mottled?

21     A   Again, you know, depends on the patient temperature, the

22         circumstances.  This is very hypothetical.  Many patients

23         have cold extremities with different diseases.

24     Q   Well, you had known Ms. S from a month-and-a-half

25         before.

                            52

 1     A   Correct.

 2     Q   You knew her medical condition.

 3     A   Correct.

 4     Q   She didn’t present with mottled extremities at the time?

 5     A   Not that I recall, no.

 6     Q   They’re not noted in any chart note in September.

 7     A   You mean in September?

 8     Q   Correct.

 9     A   No.

10     Q   So in October, if the nurses were noting that she was

11         having some swelling and her lower extremities were

12         mottled, would that be significant?

13                   MS. EK:  Asked and answered.

14     Q   (BY MS. KOEHLER)  I’m asking specifically with respect to

15         HS.

16     A   Swelling is part of the congestive heart failure.

17         Having, you know, skin changes can be part of the

18         disease, too.

19     Q   So you don’t feel that those are significant findings?

20                   MS. EK:  Objection.  Argumentative.

21     A   I cannot speak for the nurses, what they saw and whether

22         it’s significant for them or not.

23     Q   (BY MS. KOEHLER)  But as a doctor, you would not be

24         concerned with HS, who you knew from a month

25         before, having mottled legs with swelling?

                            53

 1                   MS. EK:  Object to the form and asked and

 2         answered approximately six times now.

 3     A   We are always concerned about all our patients with any

 4         findings.

 5     Q   (BY MS. KOEHLER)  If the cool, swollen, mottled legs were

 6         also painful, would that be a significant finding?

 7                   MS. EK:  Objection.  Improper and incomplete

 8         hypothetical.

 9     A   Patients with congestive heart failure tend – tend to

10         have leg swelling and leg pains.

11     Q   (BY MS. KOEHLER)  Cool and mottled?

12     A   I did not see her the first day, so I cannot speak for

13         cold or mottled.

14     Q   If the patient had swollen, cold, mottled, painful legs,

15         also with nonpalpable pedal pulses, would that be

16         significant to you?

17                   MS. EK:  Objection.  Still incomplete and

18         improper hypothetical.

19     A   I did not see Ms. S the first day, and I cannot

20         really comment on her examination.  Part of the

21         congestive heart failure symptoms would be leg swelling,

22         you know, painful legs, you know, color changes.

…..

                           135

 1      (BY MS. KOEHLER)  Were you advised at 8:30 a.m. on

 2         October 27th by CP, LPN, that Ms. S’

 3         lower extremities were mottled?

 4     A   No.

 5     Q   Were you advised at 8:55 a.m. by CA, RN, that

 6         Ms. B had bilateral legs that were cool and mottled?

 7     A   No.

 8     Q   You were advised or . . .  Let me ask this:  Were you

 9         advised specifically by MC at approximately

10         10:46 that Ms. S had plus one edema in the

11         bilateral lower legs and her pedal pulses were not

12         palpable and she had bilateral lower extremity pain

13         sensitive to touch and generalized achiness?

14     A   I do not remember.

15     Q   Were you advised at 16:52 on October 27th by RM

16     CAN, that there was mottling in Ms. Ss’

17         legs?

18     A   No, not as much as I remember.

19     Q   At 22 – the hour of 22 o’clock on October 27th, were you

20         notified by JR, RN, that bilateral legs were

21         cool and mottled?

22     A   I do not recall that I was notified.

23                            (Clarifying interruption by reporter.)

24     A   I do not recall that I was notified about this.
The dilemma created by this testimony, is that nurses are trained professionals too.  They may not have the same level of schooling as a doctor.  But their care and decisions can have a profound impact on a patient’s health.    Will the nurses back the doctor – admitting in essence that it is their fault he did not know of the patient’s clinical issues.  Or will the nurses contract the doctor.  Let’s find out.

The Nurse

                            24

 9   Q   When you did the shift assessment and found the patient

10         to have purple feet, no pulses from her knees down, did

11         you transmit that – well, first of all, did you find that

12         to be a significant finding?

13                   MS. EK:  Object to the form of the question.  It

14         was mottled feet.

15                   MS. KOEHLER:  As what?

16                   MS. EK:  Mottled.  You said purple feet.

17     Q   (BY MS. KOEHLER) Were her feet purple?

18     A   Mottled could be a variation of colors.

19     Q   What color were her feet?

20     A   That’s a subjective judgment.

21     Q   In your subjective judgment, what color were her feet?

22     A   Mottled.  I don’t know how to describe in color any

23         better than that.

24     Q   Well, you’ve used the words dusky.  What does dusky mean?

25     A   Dusky can mean gray.  It can mean darker pigmentation.

                            25

 1     Q   So were her feet of a darker pigmentation?

 2     A   Yes, than the rest – compared to the rest of her body.

 3         Yes.

 4     Q   Would you describe them as being purple or not?

 5     A   I would describe them as mottled.

 6     Q   All right.  What color was the knee area compared to the

 7         feet area?

 8     A   Less mottled.

 9     Q   How much less mottled?

10     A   To – to a degree of severity?

11     Q   Yes.

12     A   I wouldn’t be able to make, you know, a quantification on

13         that.

14     Q   Were they visibly noticeably a different color than the

15         rest of the upper part of her body?

16     A   Yes.

17     Q   From the knees down?

18     A   Yes.

19     Q   With the feet the darkest?

20     A   Yes.

21     Q   So whatever shade it was, which you’re hesitant to put a

22         shade on it, it was – the darkest part were her feet?

23     A   Correct.

24                   MS. EK:  Object to the form of the question.

25         Argumentative.

                            26

 1     Q   (BY MS. KOEHLER) Am I right?  The darkest part were her

 2         feet?

 3     A   The darker part of her body were her feet.

 4     Q   All right.  So back to my question.  When you noticed

 5         that her feet were – from her knees to her feet were

 6         mottled and you went so far as to use a doppler to

 7         confirm that there were no pulses, did you find that to

 8         be a significant finding?

 9     A   Yes.

10     Q   What does significant mean to you in nursing, you know,

11         in your – in your role as a nurse?

12                   MS. EK:  Objection.  Vague.

13     A   A significant finding is – to me is something that needs

14         to be reported or assessed more frequently.

15     Q   (BY MS. KOEHLER) Did you report the finding of the no

16         pulses from the knees down and the mottling to a

17         physician as soon as you made note of that?

18     A   Yes.

19     Q   Who did you report it to?

20     A   Dr. B and NP.

21     Q   And NP was the P.A. on duty?

22     A   She was at bedside.

23     Q   She was at bedside?  Now, Dr. B was not at the

24         hospital.  Am I right?

25     A   Correct.

                            27

 1     Q   So how did you contact him?

 2     A   He had contacted me once and I had contacted him.  I

 3         attempted to contact him twice through my shift.  I had

 4         reached and discussed with him once.  I was unsuccessful

 5         on my third attempt to contact him.

 6     Q   So what time periods did you attempt to contact him?

 7     A   He called me to get an update at 2300.  I called him

 8         shortly after that.  I’d have to look at my charting

 9         here.  Shortly after that, around 2330, I contacted him.

10         Then at the end of my shift – I’d have to look at my

11         charting again – about 6:30, 6:45, I called him and was

12         not – I did not get a response.

13     Q   Okay.  When he contacted you at 11 o’clock p.m. and you

14         contacted him at 11:30 p.m., did you actually speak to

15         him?

16     A   Yes.

17     Q   Each time?

18     A   Yes.

19     Q   Did you tell him that there were no pulses from the knees

20         down and that there was mottling with the darkest

21         mottling being at the feet?

22     A   I had told him my findings and my assessment of no pulses

23         in her feet, no pedal pulses, no tibial pulses and the

24         mottling.

25     Q   Is there any doubt in your mind that you told him that

                            28

 1         information?

 2     A   No.  I told him that information.

 3     Q   Is there . . .  When you looked at your charting, did you

 4         see notation – notes that you had those conversations

 5         with Dr. B?

 6     A   There was a note that I – Dr. Bcalled for update.

 7     Q   And that’s when you would have transmitted that

 8         information?

 9     A   Correct.

10     Q   What other information did you transmit to him beyond the

11         no pulses and the mottling?

12     A   General – my general assessment, general like vital

13         signs, labs that had come back, discussed medications

14         patient was receiving.

15     Q   Okay.  When he learned of the no pulses and the mottling,

16         did he give you any special instructions with respect to

17         that item?

18     A   No.

Is this a classic case of he said, she said.  Or there more to this story. 

To be continued…

Photo:  Another timeline PPT slide by Duane Hoffmann

Part 1: Depositions of treating providers in a bilateral leg amputation medical negligence case

Posted in depositions, Tips for Attorneys

GraysHarbor

Am at a hospital.  Sitting on one side of a long table in a cafeteria.    With me is my partner Paul Whelan and paralegal Cheryl Baldwin.  Paul  has been handling medical negligence cases since I was in grade school.  He is my Yoda.  Cheryl screened this case and knows everything that I need to know.   Between the two of them, I’m covered.

To my left at the end of the table in front of a video backdrop is the witness.  He is not only the treating doctor.  He is the Medical Director of the Hospitalist Program and Chairman of Internal Medicine at the hospital.  Across the table are the defense lawyers, a risk manager and representative from the hospital.

My job is to ask questions that will pin the doctor down, expose his vulnerabilities, and figure out why he did what he did when treating our client.

I use words that I have never used before.  Like rhabdomyolisis which I pronounce correctly only because  listened to it on http://www.howjsay.com/.  I mispronounce words like pedal pulse and ischemia.  The defense lawyers smirk a little. 

This doesn’t bother me.

One of the joys of being a trial lawyer who handles every imaginable kind of case – is the never ending challenge of learning something new.  Am not worried about making a fool of myself.  My preparation for this day has involved more hours of studying the records and medicine than the deposition will actually take.  Plus am an intense listener. 

This is my practice tip.  When examining any witness:  your next question should flow from what their answer to the last question was.

Lawyers who stick to outlines are handicapped because they don’t place a premium on the art of listening.  If you don’t listen, then you cannot engage in repartee.   If you cannot engage in repartee, then you have less of a chance of being able to effectively examine a witness. 

In this deposition excerpt, the doctor is on a mission to prove: 1) that he acted perfectly; and 2) that any fault belonged with his patient our client.  This particular blame the victim defense theme goes like this:   It was her fault for not moving to a more urban environment with better medical facilities. 

Let’s see how this plays out.

 4   Q   (BY MS. KOEHLER)  What was the plan of treatment that you

 5         suggested to her?

 6     A   She ran out of some of her medications.  We gave her the

 7         medicine that she needed and we advised her to establish

 8         care with a primary care physician and cardiologist.

 9     Q   Did you advise her that she should consider living in an

10         area with access to the type of specialists and

11         treatments she was likely to need which are not –

12     A   Correct.

13     Q   — available in Grays Harbor County?

14     A   Correct.

15     Q   Are you saying that Grays Harbor County does not have

16         sufficient medical care to take care of all people?

17     A   We do not have many specialists.  Correct.

18     Q   Do you believe that the hospital was not prepared to take

19         care of a patient like HS?

20                   MS. EK:  Object to the form of the question.

21                   MS. GRIFFITH:  Join.

22     A   Can you repeat the question.

23                             (Pending question read by reporter.)

24     A   The hospital was prepared.

25     Q   (BY MS. KOEHLER)  How was the hospital prepared to take

                            39

 1         care of Ms. S if the community of medical providers

 2         in Grays Harbor was not able to take care of Ms. S?

 3     A   I think if we do not take care of these patients, with

 4         the distance away from, you know, specialty – you know,

 5         specialties, you know, many of them will not make it.  So

 6         we’re always the bridge between – stabilizing them until

 7         they get, you know, to the bigger hospitals.

 8     Q   So is it your advice that people with serious medical

 9         conditions requiring specialty care not live in

10         Grays Harbor?

11                   MS. EK:  Objection.  Overly broad.

12     A   It’s a very broad question.  In Mrs. S’s case, I

13         specifically advised her to be closer to the specialists

14         that she needs due to her age and, you know, her medical

15         condition.

16     Q   (BY MS. KOEHLER)  Is that something that you do often is

17         tell people that – with serious medical conditions that

18         they should not live in Grays Harbor?

19     A   Not really.  Sometimes out of concern for the patient’s

20         safety, if I feel that they need way more services, then

21         I advise them for their safety, which has been very, very

22         rare.

23     Q   Can you think of one other case other than HS before HS that you advised someone

25         that they should not live in Grays Harbor?

                            40

 1     A   Yes.

 2     Q   How many?

 3     A   Just a few.

 4     Q   And what type of conditions?

 5     A   You know, one that I remember was a young patient in his

 6         twenties with a heart transplant that I didn’t think, you

 7         know, he would get the medical care he needs here.

 8     Q   Any – any other example that you have other than a heart

 9         transplant and Ms. S?

10     A   I can’t think of any.

The doctor has portrayed himself as an extremely caring but worried treater.  HS’s condition is so severe that he has advised her to move out of town to access better care.   Let’s see what happens when HS returns to the hospital one and a half months later.  Just how well does the doctor’s concern ring true.

                            46

 4     Q   Okay.  Once Ms. S was admitted to the hospital, how

 5         long was it before she was seen by a medical doctor, not

 6         a physician’s assistant?

 7     A   Okay.  We are supposed to see patients within 24 hours of

 8         admission.  I first saw her at 7:00 a.m.  So within less

 9         than the duration.

10     Q   You first saw her at 7:00 a.m. the next day?

11     A   Correct.

12     Q   What time was she admitted by Physicians’ Assistant

13         C?

14     A   I believe she was admitted around noon the first day.

15     Q   And it was an average – average to busy day for you?

16     A   Correct.

17     Q   And you had seen her before?

18     A   Correct.

19     Q   But you didn’t have time to see her first in the seven

20         hours that you were still at the hospital?

21                   MS. EK:  Object to the form of the question.

22     A   I did not need to see her.  She was admitted by

23         MC (the physician’s assistant).

24     Q   (BY MS. KOEHLER)  That wasn’t my question.  So on October

25         the 27th, even though you had seen her a month-and-a-half

                            47

 1         before and you were at the hospital for seven hours, you

 2         did not find it necessary for you personally to go visit

 3         her?

 4     A   I did see her.

 5     Q   On the 27th?

 6     A   Is 27th the first day?

 7     Q   Correct.

 8     A   I saw her the 28th.

 9     Q   Okay.  But I’m talking about the 27th.  Before you left

10         home that night at 7 o’clock in the evening.  You’d

11         already seen her once a month-and-a-half before.

12     A   Correct.

13     Q   You knew she was admitted.

14     A   Correct.

15     Q   You were at the hospital for seven hours.

16     A   Correct.

17     Q   It wasn’t a terribly busy day.  It was either average to

18         busy average.

19     A   Correct.

20     Q   But you didn’t have time to go see her?

21                   MS. EK:  Objection.  Misstates.

22     A   She was admitted by MC.

23     Q   (BY MS. KOEHLER)  Did you have time to see her if you

24         wanted to see her on the 27th?

25     A   I did not get that question.  Sorry.

                            48

 1     Q   On the 27th, if you wanted to pop in and see her, did you

 2         have time to do that?

 3     A   I cannot remember the day.

The doctor has created a major inconsistency. On the one hand he was so concerned about HS that he advised her to move somewhere else to get better specialty care.  On the other hand, when she came back to the hospital a month and a half later, he was fine with her being examined and admitted by a non-doctor  physician’s assistant.

To be continued.

Photo:  First timeline PPT slide – by Duane Hoffman.