An Academic Lackey inJudge Greenacre’s Court

Two weeks as a juror in the US legal system

A Serious MatterThis was a medical malpractice

case that involved the death of the patient.

Everyone at this proceeding was aware of the seriousness of this case and the importance of doing the right thing.

Some of my observations are on the lighter side – please don’t think that I’m not aware of the gravity of this or that we didn’t take this case seriously.

Jury SelectionMy legal adventures started with a simple

object: a hat containing the names of prospective jurors. Of the 70 or 80 folks in the room, my name was drawn first.

At Yale, the faculty almost NEVER got picked for jury duty – lawyers seem to want easily impressionable jurors. Perhaps Gunnison lacks enough such people to fill a jury.

The lawyers didn’t want anyone that wasn’t going to be happy – folks with work problems got dismissed without a fight.

Jury selection took an entire day – 8 jurors were empanelled.

The Jury

Our jury was very representative of Gunnison / Crested Butte:

• Professor, bank teller, landscaper, distributor, minister, salesman, plumber, and high school coach.

• We worked well together and enjoyed getting to know each other.

The Gunnison Courtroom

The highlight of our courtroom is a set of juror chairs that go back to the Alferd Packer trial:

Cast of Characters Judge Greenacre – he had to keep the lawyers in line

and interpret the law. 2 sets of lawyers, one senior and one junior each for

the plaintiff and defendant. You knew that something wasn’t very important if the junior guy was speaking. These lawyers had previous history and were at each other’s throats constantly.

2 assistants running computers with exhibits on them Plaintiff (daughter) and defendant (orthopedic surgeon) Jury consultant (first day only) Bailiff (the jury’s pal) Court recorder (pity her when the doctors get going) 8 Jurors Witnesses: Drs, Economist, Family, Coworker

Technology in the Courthttp://www.verdictsyste

ms.com/software/Court recorder: she used

a stenographic keyboard (very cool!) and was producing a transcript as the trial went on. Monitors on the lawyers tables and judges bench allowed them to see the transcript as it was typed.

The ComplaintApril 3: A 52 year old woman missteps and breaks her

ankle. An orthopedist is called to the ER and he operates (an “ORIF”) that evening

April 6: Patient is released from the hospitalCheckups after April 6 show normal progressMay 10: patient starts walkingMay 14: patient complains of pain and swelling. An

ultrasound is used to image the leg veins for blood clots – nothing found

May 18: patient has breathing problems but doesn’t go to ER

May 20: patient has serious respiratory problems and goes to ER

May 21: patient dies of a pulmonary embolism (blood clot blocking the lungs)

Judicial ProcessSuit is filedExperts are shown patient records and give

a short description of their opinions and what they would say

Depositions are gathered from experts you want and opponents experts

Based on these, they depose people again on topics in other depositions

And again …At trial, you’re really just repeating

questions from depositions. No real surprises.

A Jury-Based Medical EducationI’ve had what is effectively a 3

credit hour course in DVT, Hematology, Orthopedics, Radiology, and Internal Medicine, taught by experts in the fields. And it was free!

I can tell you where you the popletial vein is or what a thrombus is.

I can spell Prophylaxis if I try hard.

Basic Medical IssuesA DVT (Deep Venous Thrombosis) is a clot

that forms in the veins of the extremitiesIf the clot grows and breaks off it can

travel to the lungs20% of the time this results in deathLots of things increase your chances of

clotting: inactivity, surgery, age, drugs like Estrogen, family history.

Clots grow on scars on vein wallsSmall clots may move from small veins to

larger ones

Preventing ClotsDrugs like LMWH (Low Molecular Weight

Heparin) help prevent clotting but carry risks of bleeding.

In some surgeries, you always treat with blood thinners like LWMH afterwards to prevent clots. Avoid even small clots when patient is at highest risk (immobile, surgical trauma) so that no scarring will occur.

If you exhibit signs of PE (clots travelling to the lungs), powerful anti-clotting drugs can help dissolve these clots.

Issues in this case

Should the doctor have put the patient on anti-clotting drugs after ankle surgery?

Should he have performed further tests after the ultrasound found no clots on the 18th?

Did he tell the patient what the symptoms of DVT are so she would go into the emergency room at the first signs of PE?

Misleading MathLawyers are not like professors –

their job is to win at all costMath was one of the main

weapons used at this trial – much of it was deliberately misleading

The basic point of contention involved risk analysis – determining what different risks are and weighing them against each other to determine treatment

Risk Assessment

We all make risk assessments. Here’s mine on those late night drives up from Montrose:

Deer on the road

SwerveHit It

Antlers in the chest

Minor car

damageMissed

Bottom of Blue Mesa

Risk AssessmentThis isn’t of any use unless I know

roughly what the likelihood of these outcomes is. I’ll add probabilities:

Deer on the road

SwerveHit It

Antlers in the chest

Minor car

damageMissed

Bottom of Blue Mesa

.95 .1.05 .9

Risk AssessmentIn the real world,• There are far more possible outcomes• We don’t really know what the

probabilities are• Value judgments personalize the

analysisUltimately we need to know these risk

probabilities as precisely as possible to make an educated judgment

Doctors have to do this all the time!Much of this is done intuitively.

Risk FactorsTo estimate probabilities, we need to look at

risk factors – things that increase “normal” risk of an event.

Just about anything could be a risk factor: age, weight, history, other conditions.

Doctors can observe these intuitively (my older patients seem to develop more blood clots …)

Careful studies are needed to put numbers on individual risk factors

Doctors tend to reduce probabilities to simpler conditions: High / Low / Medium

ExampleTwo highway patrolmen look at the cars

that have been wrecked after deer swerves.

One notices that most of the drivers were male.

Another notices that most of the wrecked cars were SUVs.

Both publish papers identifying a risk factor for rollovers when you swerve.

Now everyone knows that being male or driving a SUV is a risk factor.

The Big Question!

Does this mean if you’re a male driving a SUV that you’re a higher risk for rolling over if you swerve than someone with just one risk factor?

ExampleNo! It might, or it might not. Maybe it

means that male drivers are more likely to own SUVs (the risk factors are not independent). Maybe it means that SUVs are easier to roll over and that men tend to swerve more violently (the risk factors are independent).

You can’t tell until you study both parameters at once!

What’s NOT true is that being both male and in a SUV guarantees that your risk is higher than either a male or a SUV driver.

Univariate vs multivariate analysisA study looking for a correlation

between a single factor and its risk is univariate.

A study in which you look at how these factors fit together is multivariate – this might show that only owning a SUV is important – being male might be inconsequential.

Double Blind vs. Retrospective AnalysisSuppose a group of drivers decides to carry a

sealed envelope in their cars that will say “swerve” or “hit”. These are assigned randomly ignoring differences between drivers. This would yield “high quality” data on actual probabilities.

A retrospective study would be to find reported deer incidents and look at outcomes / risk factors.

This yields much lower quality information.In this trial, all papers cited were retrospective

analysis trials so it was hard to treat any of the papers as conclusive.

More Confusion

Note that risk factors can affect both choices.

For example, driving a SUV might make it more likely to survive a deer collision.

Many factors don’t contribute to the probabilities enough to change the decision. Your decision on whether to swerve will be the same regardless of whether a factor is present.

AlgorithmsThis risk assessment stuff can be turned

into an algorithm. This will instruct the driver which risk factors to assess and present a decision process based on these.

Unless an algorithm is validated by studies, it’s just someone’s guess. There are lots of algorithms in the medical literature that haven’t been validated!

PS – don’t swerve. That’s what the highway patrol will tell you about deer. (Not sure about moose though!)

Confusing the Jury with NumbersLawyers often avoided the truth by

focusing on numbers that were not directly connected to clinical decision.

Refusal to talk about absolute probabilities: did you know that factor X increases risk by Y%? But if you don’t know the actual probabilities this is meaningless!Did you know that wearing

a helmet while hiking decreases the risk of being killed by a meteor by 20000%!

Confusing the Jury with NumbersIgnoring risk in the alternatives.In this case, the plaintiff wanted

you to assume that there was NO RISK in using blood thinners.

Did you know that wearing a helmet while hiking increases risk of heat exhaustion by 2%?

Confusing the Jury with NumbersWe were constantly reminded of all the

different risk factors that this patient had for blood clots. But can you just “add up” these factors? Although it seems logical, this ignores a lot:

• The actual numbers are ignored – just because something is a factor doesn’t mean that it contributes significantly

• If risk factors are not independent of each other, there’s no mathematical justification for adding them up

Treatment Lock InA doctor develops a new

procedure (say knee replacement)

The doctor guesses that this involves some particular risk (blood clots) and includes anti-clotting measures in the standard treatment

The procedure becomes widely accepted.

But there is no solid evidence that this anti-clotting is needed!

Treatment Lock InWhy is this relevant?• It was argued that if the risk of clotting in

knee replacement is so high that anti-coagulants are always needed.

• So in a somewhat lower risk surgery on a higher risk patient you would probably need them too.

But it’s almost impossible to study whether these are needed in knee replacement since withholding them would violate the standard of care, even though this standard isn’t based on hard science!

Reality vs. ScienceReality is what you experience as a

practitionerScience is what you can prove through

research studiesWe couldn’t admit science post 2002 that

would have provided a picture of reality in that year – only science that was known in 2002 or earlier was admissible.

But the experience of practitioners would match the science, whether in 2002 or 2008!

Evaluating Experts

We’re constantly bombarded with expert opinions on things that are too complex for us to understand unaided:

Global WarmingVaccinations and AutismEconomicsOn all of these issues, there are

“experts” on all sides with differing opinions. So how can we get at the truth?

Evaluating ExpertsIt’s guaranteed in this sort of a case that

the plaintiff will have an expert that says “this doctor screwed up” and the defense will have one that says “did the right thing”.

You wish that one of these guys would get thrown in jail for perjury but that doesn’t happen!

Our task was to side with one set of experts or the other – given that the jury has far less medical expertise this is a daunting task!

Evaluating ExpertsThings we had at the trial:• Personal opinions formed from

watching the demeanor of the witnesses.

• Professional credentials and work experience

• Papers and studies which backed up / refuted the experts

• Financial ties to the trial process: fees, frequency of testimony, which side the expert usually took.

Our Experts Two academic “true believers” – these guys spent

a lot of time talking about DVT and all sorts of ways to detect, prevent, and treat it. They never said much about the risks of these treatments and were convinced that every doctor ought to know what they did about the risks of clotting.

These guys came off as sincere but very focused one specific thing.

They weren’t orthopedic surgeons.They couldn’t demonstrate a history of well

researched, widely read articles backing their point of view – they seemed to be on the fringe / cutting edge (you can’t tell which!)

Our Experts

The “sockpuppet”. This orthopedic

surgeon seemed toshare EXACTLYthe views of hislawyers. With 100% certainty. And he did a lot of legal work for those same lawyers. And he practiced in a very different environment. A long ways away.

Our ExpertsThe numbers guy. He did a great job of

telling us EXACTLY what the probabilities were in the risk analysis. And why risk factors don’t just “add up”. And why it’s so hard to get exact numbers from studies. And what was known from solid studies versus what was just being guessed at.

I asked him a question about multivariate vs univariate analysis. He gave a great answer.

He had a much better math background than a lot of the other experts.

Our ExpertsThe economist.How much would you be worth if you died? Lots!Future income. Help around the house. Insurance. It

adds up!She did a good job explaining the math and everyone

on the jury thought she did a good job justifying her numbers.

She used a lot of bureau of labor stats to justify things that couldn’t be measured directly.

This is what you do with a PhD in Econ and don’t teach!

The other side spent a lot of time arguing that the decedent was about to get a lower salary but this was basically horse puckey.

Interestingly, they couldn’t get the employer to figure out the actual cost of the company health plan.

Our Experts

The no-BS locals. These guys had practices similar to the defendant. They refused to let the lawyers put words in their mouths – there was a lot of legal theatre going on.

They were both new at this trial thing and seemed rather amused at the various lawyer tricks.

Other Experts• The autopsy doctor – he found

the lung clots but couldn’t prove where they came from. We had to sit through the gory details of how autopsies are done.

• The radiologist – he told us all we ever would want to know about how accurate ultrasounds are. He said the technician did a good job and ruled out clots in the large veins on the 14th.

The Community of ProfessionalsHow do professionals get information?Would you know of information in a

journal you don’t subscribe to?Would you not know information in a

journal you don’t subscribe to?Where do professionals get most of their

information?This was one of the big issues – had the

Dr. read article X? Note that there are FAR more journals out there that anyone can keep up with!

Stupid Lawyer Tricks

Deposition “Gotcha!”• We spent untold hours listening

to doctors and lawyers argue about minor inconsistencies between deposition answers and courtroom answers.

• BORING!!!• None of the witnesses really had

issues with this.

Stupid Lawyer Tricks

Didn’t You Know THAT?Find some obscure journal that

might not even be in the same field. Express amazement that the witness hasn’t appreciated the wonderful wisdom of some small paragraph buried with an article.

Stupid Lawyer Tricks

But That’s Not an Orthopedics Journal!

This is the opposite of the previous trick – assuming that a Dr. is only responsible for knowledge published in his own narrow specialty.

Stupid Lawyer Tricks The “Perry Mason Moment”These can’t really happen in

civil trials – everything hasto be disclosed in advance.

The plaintiff lawyer made a big deal about a “suspicious” note that the Dr. made after the death. Why was it not filed where it should have? Who transcribed it? Is it a SECRET ADMISSION OF GUILT?!??!

We never felt this was a big deal but evidently it occupied endless time at the depositions!

Stupid Lawyer Tricks

Is It Possible?Get a witness to admit that some

very far-fetched idea is at least possible. They hope to confuse the jury that “possible = likely”. Since almost everything in medicine is uncertain you can always play this game.

Is It Possible?Is it possible that the moon is made of

green cheese?Have you been to the moon?Have you ever seen the other side of

the moon?How many different places have moon

landings occurred? Could the moon landings have been

faked?Doesn’t the moon look sort of green

some nights?

Funny Stuff

Little bits of humor to break the monotony:

I cannot answer that with a simple “Yes or No” but I can expand on this if asked.

A witness refuses to let a lawyer put words in his mouth.

Funny Stuff

Don’t you mean the “Journal of Foot and Ankle” instead of “Foot and Ankle International”?

That’s a PODIATRIST journal!

Analyzing the Arguments

The plaintiff’s case was superficially about various experts who believe they would have treated the patient differently.

But there was a strong emotional subtext that was meant to persuade us more than the facts of the case.

Arguments of the Plaintiff’s Lawyer• Arrogance of specialists (those

orthopedists think they don’t need to know about clots!)

• Lack of personalized interaction (I know most people wouldn’t need special treatment but this one did – you treat everyone the same)

• Mathematical bamboozlement (you know that someone taking Estrogen has an 18 times higher risk of clotting!!)

• Someone died so someone must have messed up

The Elephant in the RoomWe all knew it was there but nobody could

speak of it: the US health systemDid the decedent worry about money when

deciding not to go to the ER on the 18th? On the 14th she was very worried about the cost of the ultrasound and whether it would be covered on insurance (this was disclosed after trial)

The plaintiff wanted us to believe she didn’t go because of poor Dr’s instructions. The defense couldn’t bring up issues about insurance.

Jury InstructionsCivil cases are decided by the

“preponderance of evidence” standard.We had to find:• Harm (H)• Negligence (N)• That the negligence led to the harm (C)Per our instructions, this was defined asP(H)>.5 & P(N) > .5 & P(C) > .5I would have expected P(H & N & C) > .5

DeliberationsYou can’t assign blame based on outcomeNeed to be careful – there are very serious

consequences if we’re wrongOnly have exhibits to reason from (transcript

not available!) Jury instructions are crucial – they indicated

that we had to compare the Dr’s behavior to others in the same specialty

Everyone wants a “win-win” situation but you can’t do this at a trial.

We had to assume that the doctor was following standard practices in cases where there was no evidence either way

We took about 12 hours to make the final decision.

DeliberationsMost of the expert testimony was considered

irrelevant – the testimony of the doctors in his field that don’t spend their whole time in court was the most important.

Patient records were very terse – there was little to go on when deciding whether the patient had been informed or asked about things.

We focused on whether the Dr. did a good job of finding the patient history (her father’s blot clotting problems were not disclosed until the 20th) and whether the reason the patient didn’t go to the ER on the 18th was due to poor instructions.

The VerdictWe found for the defendant (the doctor).• There was no good evidence that the

patient would have been at high risk according to studies available in 2002.

• There was no indication that he deviated from the standard of care at any time. The plaintiff presented no hard evidence of malpractice – they just assumed we would assume that the death should be explained by a lack of care.

About the DecedentAll of on the jury had a lot of sympathy

for her and her family.But the family testimony indicated that

she was very much in this alone – there was never another family member with her at the Dr’s and the family didn’t seem deeply involved in her care.

We can’t know the real situation but it made is all resolve to participate more in the care for our loved ones.

About HealthcareOne of the things all of us took away from the

trial was that there is no way a doctor can tell you everything about your condition or the risks involved in your treatment. We had weeks of consultation on this case and still don’t know as much as the Dr’s do.

I believe it’s important to do your own research – knowledge would have helped her know the seriousness of DVT and its symptoms.

We believe that the Dr. did a good job at providing this information but the more information you have the better.

About Healthcare

Something that we looked hard at in the jury was the history provided by the patient at the ER and Dr’s office.

All of us on the jury will probably start taking these forms a lot more seriously – it takes time to gather family health history so you can answer thoroughly but it’s really important!

About Healthcare

It’s hard to take risks like “0.04% chance of death” for what appears to be a very simple operation seriously.

But 0.04% is NOT zero!Next time you break an ankle

remember that surgery isn’t a sure thing, no matter how many people you know that have had no problems.

Effects of the TrialBoth defendant and plaintiff had to take over

two weeks off to sit in the court.This was obviously very stressful on both of

themWhat did the lawyer tell the plaintiff? Did he

say this would be easy? Was he behaving ethically? Did he realize how weak his case was?

Going to trial is certainly not to be taken lightly – sitting there hearing people criticize your work / loved one or going endlessly into private medical details is something I wouldn’t wish on anyone.

Thinking About Western …How does this affect me as an educator?• Math is really important – understanding

the case required understanding probability and statistics

• Communication an essential skill – these experts were judged just as much on the communication skills as their knowledge

• Evaluating experts is something we need to talk about – ordinary people need to be able to judge the accuracy, credentials, motives, and character of “experts”.

Thinking About Western …• An understanding medical research procedures is

important – what is the difference between retrospective analysis, double-blind trials, and anecdotal evidence.

• The academic process needs to be understood – how to we arrive at truth? How does this truth propagate? What is peer review? What makes a journal authoritative?

• Everyone should understand basic standards of professional behavior – record keeping and continuing education were crucial aspects of this.

• Students need to understand their civic responsibilities. I hope my willingness to serve will be an example for them.

CostsEvery expert witness was asked how much

money they were getting. This was usually $30K - $40K for assessment,

multiple depositions, travel, and testimonyI guess that at least $250,000 was spent just for

expertsThe 4 lawyers probably spend at least 3 months

each on this trial – there’s probably about $250,000 spent on them with expenses

The amount of money in dispute was $700,000 of which the lawyers would collect about $300,000

The state put up at least $60,000 for the judge/courtroom/jury/court personnel.

Aftermath• The Dr. had experienced a patient bleed to

death on anti-coagulants but wasn’t allowed to testify about that

• They didn’t ask for pain/suffering to avoid opening up questions of family behavior / dysfunction.

• There were many fights with the judge over prejudicial testimony – a LOT of stuff was suppressed.

• They had no idea why this case was brought to trial – there were no offers to settle at any time.

AftermathI exchanged email with one of the defense

experts and he summed things up very well:

I was outraged about that surgeon being sued when in reality he probably did better than most surgeons would do with this patient. It is always very sad when a patient dies but we can rest assured that she received the best possible care. … On the other hand the physicians on the plaintiff side should be ashamed at what they are doing.

Thanks to …Steve, Josh, Connie, Robin, Alyson,

Amy, and Mike – we really enjoyed getting to know each other

My suffering students that had to reschedule their classes to the evening or catch me on lunch breaks

All the faculty that helped me fill in my classes

Our bailiffs and the other folks at the courthouse