Preferential Treatment, page 28
“Well, we have no lock on a win, you know. It’s a med mal case, for Christ’s sake. It’s not like Montgomery was drunk when he operated. Anything can happen in these cases.” Fabian stopped. Maybe I’m talking too much. Better just to listen, he thought.
“That’s the point, Jack. If Ben and you hit one out of the park, I’m a goner at the firm. They’ll send me packing so fast I won’t know what hit me. Associates are a dime a dozen, and they know I’m expendable. Woodall, on the other hand, is the grandson of one of the firm’s founders and chair of the litigation section. He’s got job security, and sacrificing me will be a no-brainer for that sleaze-bag.”
“I see your point. It’s a conundrum, but you’re in the spotlight with this one, evidently. I’m telling you as someone I’ve gotten to know and respect—you’ll be all right no matter what the outcome. You’re talented and smart. If Woodall sees to it that you’re shit-canned, you’ll find another good job in a heartbeat. And one of these days, you’ll get your shot at Woodall. You might have to wait a while, years maybe, but I’ve found in this business that what goes around comes around. Patience while waiting to even a score is a virtue. Revenge, they say, is a dish best served cold. What’s more, as I said, we have no lock on this case. You’ve got a good-looking doctor who will make a great appearance before a jury that’s not going to want to find their hometown boy responsible for my client’s horrible problems.”
“Thanks for the words of encouragement. I needed them. I’m tired and need some sleep,” Amanda sighed as she rose to leave.
“Couldn’t interest you in …”
“Don’t even try to go there, Buster,” she said chuckling. “Goodnight.”
“Can’t blame a guy for trying. See you in the morning.”
The following morning, Amanda Cohen and Antonio Sienna, M.D., entered Conference Room C. Fabian rose, bid a curt greeting to Cohen, and extended his hand to the doctor. Introductions were made, and Fabian got down to business.
Uncharacteristically, Fabian opted not to ask his usual first zinger question right off the bat as he had done with the defendant, Montgomery. He was sure Sienna had been forewarned of this tactic by Cohen, and he wanted to begin the game with a change-up. “Doctor, do you have any ties to Abbington, West Virginia, or Nobel County where Abbington is located?”
“No, I’ve never been to West Virginia,” Sienna said.
“Do you know anybody who lives in West Virginia other than Dr. Montgomery and Ms. Cohen?” Fabian wanted to be sure that no possible prospective juror had any ties to or prior dealings with the doctor.
“I’ve met a few of the neurosurgeons from West Virginia University and have probably talked with other neurosurgeons from the state, but I don’t recall any of their names.”
“Have you ever treated anyone who was from West Virginia?”
“Not that I know of.”
“To speed things up, Doctor, I am handing you a document that has been marked as ‘Sienna Deposition Exhibit A’ and ask you if this is your current and complete curriculum vitae?”
Sienna riffled through the resume and handed it back to Fabian. “It appears to be complete and current.”
Fabian flipped through the pages. “I note here that you did a fellowship in microneurosurgery at the University of Southern Arizona Medical Center in 1985, and that the training lasted five months. Can you tell us what microneurosurgery is?”
“My training primarily dealt with the use of the operating microscope in neurosurgical procedures.”
“And in that training, did you employ the use of the operating microscope and microneurosurgical techniques while operating on intracranial aneurysms?”
“That was certainly part of it,” the doctor replied.
“Under whom did you train?”
“Dr. Sebastian Vitale was my mentor and teacher.”
“Any other training that you recall that dealt with operating on intracranial aneurysms?”
“Other than my general neurosurgical training, no formal training, but over the years I’ve gained experience from, and observed techniques of, other neurosurgeons I have worked with such as Wagner in Los Angeles and Graham in New York.”
“Would that be Fred Wagner and Robert Graham?” Fabian asked, proud of his awareness of the players mentioned by Sienna.
“That would be correct,” an impressed Sienna said.
“Would that work include aneurysm surgery?”
“Yes, intracranial aneurysm surgery, to be precise.”
“Do you consider Drs. Wagner, Graham, and Vitale to be recognized authorities in the area of aneurysm surgery?”
“Yes. All of them.”
Fabian was satisfied he had Sienna locked in on those aneurysm surgeons that he respected and looked up to. At trial, he would cross-examine him on literature each may have authored that had expressed views contrary to what his theories and opinions were.
“Doctor, this work and additional study you did with these doctors was done so that you could develop enhanced skills and skills that you can continue to develop over a period of time, is that correct?”
“Yes.”
“Do you agree that the more experience in a particular type of surgery a doctor has, the more proficient he or she becomes over time?”
“I agree, assuming that what you continue doing and the techniques employed were proper and good practice in the first place.”
“And along those lines, is it fair to say that a neurosurgeon fresh out of neurosurgical residency would not be as proficient at aneurysm surgery, generally speaking, as one who had, say, fifteen years of experience doing that type of surgery?”
“With the same caveat, I would agree.” Sienna paused. Fabian assumed that he had completed his answer. He was very happy with this concession. As he started to ask his next question on a different topic, Sienna suddenly realized that he was playing into Fabian’s hand, inadvertently supporting one of his theories of liability. “However, Mr. Fabian,” he interjected, “that is not to say that a newly trained neurosurgeon is not perfectly capable of doing an excellent job and have a successful outcome, too.”
Fabian decided not to argue the point but to use it effectively at trial.
“Doctor, what, in your opinion, are some of the most difficult aneurysm surgeries?”
“Well, you must first understand that all aneurysm surgeries are difficult and that you must take into consideration a number of things in determining the anticipated difficulty level. Among those are whether the aneurysm is large or small, where it is located, how it is configured, and how old the patient is. The older the patient the less able he or she would be to tolerate the procedure. That being said and all else being equal, I would say among the potential problematic ones are basilar aneurysms, anterior communicating artery types, ventral brain stem aneurysms, and, under certain circumstances, internal carotid artery aneurysms.”
“You named internal carotid artery aneurysm repair as being difficult in some circumstances. As you know, my client, Joseph Gunther, had two aneurysms that Dr. Montgomery was going to try to repair. Both were on the internal carotid. Would you consider this surgery on either of the aneurysms of the size, configuration, and location that Dr. Montgomery was confronted with to be what you would categorize as difficult?” Fabian paused briefly, then said, “And let me put the angiogram up on the view box I brought with me today.” Fabian clicked on the view box and slapped the x-ray up on the screen.
Sienna studied the angiogram. “Looking at the radiographic study, it looked to be possibly a difficult surgery to complete successfully.”
“And why is that?”
The doctor grabbed a pen from his pocket and used it as a pointer. He jabbed at the problematic aneurysm that appeared to be a prominent black blob protruding off squiggly black lines that were the contrast dye filled arteries in an around Gunther’s brain. “As you can see from the study, the lesion appears to be multi-lobular and located partially under the clinoid process.”
“Why would these factors, in your opinion, be cause for concern that the surgery might be a difficult one?”
“Because with the location of the aneurysm, especially since one of the lobes is under the clinoid process, first you would have to get rid of the bony process—get it out of the way if you will—and then you’re faced with the problem of getting the clip around this large lesion with two lobes located so close to the floor of the cranium.”
“So, keeping that in mind, what potential problems could arise with this particular aneurysm in this particular patient, if, in fact, the aneurysm ruptured suddenly?”
“You’d have to get control of the bleeding.”
“And if you couldn’t get a clip across the neck of the aneurysm, whatever the cause, how do you stop or reduce the bleeding and avoid a medical catastrophe?”
“Dr. Montgomery got control by suction, application of Cottonoid paddies and cotton balls, and applying aneurysm clips to the lesion,” said Sienna.
“But that was after the brain swelled so much it was necessary to amputate part of Mr. Gunther’s brain due to massive loss of blood and consequent brain swelling, isn’t that true?”
“He did it to save the poor man’s life. That’s all he could do at that point.”
“Doctor, don’t you agree that when confronted with this aneurysm, considering its size, its multi-lobulated configuration, its location on the cranial floor with little or no room to gain proximal control of bleeding in the event of a rupture, some game plan should have been considered to take care of that contingency should it occur?”
“They did the best they could, Mr. Fabian. The poor man had less than a twenty percent chance of successful outcome no matter who was operating on him.”
“You didn’t answer my question, Doctor. Let me put it this way. Do you believe that if Dr. Montgomery, prior to attempting to dissect out the paraclinoid aneurysm, had exposed the carotid artery in Mr. Gunther’s neck and placed a ligature around it in the event of a bleed or, in the alternative, had available for his use temporary aneurysm clips to place on the external carotid artery in the event of a rupture, that Mr. Gunther’s chance of satisfactory outcome would have been better?”
“It’s possible, but not a guarantee.”
“Nothing’s for sure but death and taxes. But you will agree with me, will you not, that occluding that artery and stopping blood flow temporarily to try to get a clip on the neck of that aneurysm would have improved the chances of a better outcome for Mr. Gunther?”
“Assuming that what you suggest was done, it may have improved his chances, yes. But I can’t say it would have improved them to better than twenty percent.”
Fabian pressed on. “And that’s because if the bleeding were stopped or slowed significantly by the occlusion of the artery in the patient’s neck, there would have been much less bleeding from the ruptured aneurysm, little or less brain swelling as a result, no need for the amputation that had to be performed as a life-saving measure, and would have given the surgeon more time to get the aneurysm satisfactorily clipped, true?”
“I think that may have been one method to attack the problem, but as I have said, these surgeries are difficult and risky. You never know what could happen. Bad results can happen in any surgery, even in the best and most experienced hands. They’ve happened to me. They could happen to anybody.”
Cohen felt that things had gone far enough at this juncture. Sienna needed a chance to regroup. “Could we take a break, Mr. Fabian? It’s the coffee, you know,” Cohen said sheepishly.
“Sure. Let’s take a fifteen minute break. Doctor, please do not discuss your testimony with anyone during the break,” said Fabian.
“Okay,” Sienna agreed.
After the short break, Fabian reconvened Sienna’s deposition.
“Doctor,” Fabian began. “I have studied your C.V. and note that you have written extensively in a number of neurosurgical and other medical publications on various topics in the field of neurosurgery—well over one hundred articles. Do you consider these articles to be authoritative on the topics you’ve written about?”
Sienna was ready for this oft ask question by plaintiff and defense counsel when interrogating the opposing medical expert. “What do you mean by ‘authoritative,’ Sir?”
Fabian, having heard this retort from experts and defendant doctors ad nauseum, was ready. “I’ll tell you what, Doctor. You give me a definition of the term ‘authoritative,’ and we’ll run with that.”
Sienna looked puzzled. He had never been given the option of defining the term before. He thought momentarily, then said, “I don’t use that word, Mr. Fabian. That’s a word that lawyers have come up with in these cases.”
Fabian smiled. “Would it be fair to say that authorities in a certain field of medicine write authoritative works?”
“Well, that begs the question, doesn’t it? You’re using the word to define the word. I can no more tell you what ‘authority’ or ‘authorities’ mean than I can define the word ‘authoritative.’”
“In questions I have asked you so far, Doctor, have I employed any term in my questioning that you have not understood?” Fabian asked.
“None that come to mind,” Sienna replied, not sure where Fabian was going.
“Miss Jackson,” Fabian said to the court reporter, “please find in your steno notes taken so far the part of the questioning I did of the good doctor regarding Drs. Vitale, Graham, and Wagner.”
The court reporter leafed through the stack of stenographic notes in her machine that had been piling up as a result of the testimony taken thus far. Suddenly, she stopped and said, “Found it.”
“Please read the question and answer,” Fabian directed.
“Question: Do you consider Drs. Wagner, Graham, and Vitale to be recognized authorities in the area of aneurysm surgery? Answer: I certainly would consider them as such.”
“Thank you. Now, Doctor do you recall that question I asked and your answer?”
“I guess,” a red-faced Sienna admitted. A bead of perspiration formed on his upper lip.
Fabian leaned forward toward the witness. “So, did you understand my question when I asked it?”
“I suppose.”
“Now, when I asked you whether these doctors under whom you studied and trained were authorities, what did you understand that term to mean?”
Sienna looked stumped. He hesitated, his mind temporarily blocking.
Fabian pounced. “Let me help you then, Doctor. I’ve looked up a few definitions in a well-recognized dictionary, and I would like to read them to you and see if we can agree on a couple of definitions. First, ‘authoritative’ means, and I’ll quote verbatim, ‘able to be trusted as accurate or true.’ Can we agree that in this deposition that will be the definition we employ henceforth?”
“That sounds reasonable,” Sienna conceded.
“And the second definition I would like to settle on, if that’s agreeable to you, is for the word ‘authority.’ That definition is ‘a person with extensive or special knowledge about a subject.’ Is this definition agreeable with you, too?”
“Yes, I suppose.”
“Good. Now, Doctor, using the definitions we have just agreed upon, do you believe that the journals in which you have published are generally authoritative?”
“Yes, generally, but that is not to say that I agree with everything written or that there is not more than one school of thought on a particular matter.”
“Fair enough. And I also see that you have written several chapters in various neurological surgery texts. Again, using our definition of ‘authoritative,’ do you believe those texts are generally authoritative in the field of neurosurgery?”
“Same answer.”
“Doctor, do you know our neurosurgical expert in this case, Dr. Robert Blakely?”
“Yes, I’ve met him in several meetings over the years.”
“Have you ever heard him lecture at medical meetings that you have attended?”
“Yes.”
“And were these lectures attended by you in order to expand or refresh your medical knowledge in your field of medicine?”
Sienna, had he told the absolute truth, would have said that he attended these seminars as part of the requirements to maintain his license in good standing in his state. CME it was called—Continuing Medical Education. However, Sienna thought it would be more politically correct to agree with Fabian. “Yes.”
“Had you ever read any of Dr. Blakely’s articles and book chapters?”
“Probably, a few articles, but no book chapters come to mind.”
“You are aware that he has written extensively in medical journals and texts on the topic of aneurysm surgery, correct?”
“As I said, I know he has written some articles. I’m not aware of any book chapters.”
“Many of these articles on aneurysm surgery are published in the same journals that you have published in. Again, using our definitions we have just agreed upon, would you agree that his articles published in these journals were authoritative in their area of discussion?”
Sienna knew he had been trapped. “I suppose,” he shrugged, “but I’d have to read them first.”
“So, Doctor, that would make Dr. Blakely a person with extensive or specialized knowledge about a subject, in other words, an authority on aneurysm surgery, true?”
