Closing Argument SMITH case Outline- Scharper The Introductory statement a.

. Pearl Buck: Every great mistake has a halfway moment, a split second when it can be recalled and perhaps remedied. This case is a perfect example of a great mistake which was never rectified. b. New Year's Day is the most active-minded holiday, because it is the one where people evaluate their lives and plan and resolve to take action. Ironic that the events that led to the death of Mr. Smith (a healthy, active-minded senior) took place on the first day of a new year. Explanation of pivotal issues in the case a. Drory failed to consider PE at all b. Christopher failed to consider PE c. David thought of PE at the initial admission but didnt follow through d. David didnt think of PE on the final visit e. Dr. Joseph was careless about the low O2 sat Summary of important facts, opinions and inferences a. Mr. Smith was a healthy, vibrant tennis player with a loving family b.diverticulosis is a common disorder in older people c. abdominal surgery lasting more than 2 hrs carries with it a HIGH risk of PE d. the index of suspicion for PE was TOO low e. Drory was a rookie (a tired overwhelmed rookie) who was working a very busy shift at the ER on New Yrs Day. He was in over his head and should have asked for help. f. Drory SHOULD have thought of PE but didnt. He didnt form a complete differential diagnosis. g. Drory thought about the most likely diagnosis, but didnt take the time to make sure the facts fit. Ex. the patient did not have a fever even though he had chills. Drory never checked a WBC count in a patient who supposedly had an infection. A patient with pneumonia should have an elevated WBC count. This is basic information any attending should know (Drory was still a resident). Drory did not pursue the pulmonary w/u recommended by Dr. David. h. Christopher accepted the pneumonia diagnosis and was distracted by the new upper GI findings. i. Christopher didnt take the time to make sure the facts fithurried, sloppy thinking j. the coffee grounds emesis (upper GI issue) in light of a previous lower GI problem didnt fit! k. when the answer wasnt found with upper endoscopy, Christopher essentially gave up and was ready to d/c the patient. He didnt take the time to put the clinical pieces together. l. Smiths family requested to stay in the hospital longer! m. A patient like Mr. Smith is NOT the type to want to linger around in the hospital unless he really isnt feeling well n. THAT SHOULD HAVE RAISED DR. CHRISTOPHERs index of suspicion but did not o. Dr. Christopher was interested in getting the patient out of the hospital, not getting the patient better. p. Mr. Smith was let down by the people he trusted the most to get him better

Description of who, what, when, where, how and why a. admission on Dec 22 for lower GI bleed/ hx of diverticulosis b. colonoscopy/red blood tagged study done c. Dr. David- R hemicolectomy PE prophylaxis done d. patient D/C on 12/29- feeling well e. patient presented to ER on 1/1/00 with R sided CP, cough, SOB but NO fever f. Drory (resident, not board certified, moonlighting, tired, overwhelmed, distracted, arrogant) pt misdiagnosed with pneumonia without even checking WBC. Horses v. zebras does NOT work here. The combination of CP, SOB and cough IN THE ABSENCE of an elevated WBC and fever ADD up to PE NOT pneumonia. A number of medical schools teach their students this adage, When you hear hoofbeats think horses, not zebras. The meaning is clear: When confronted with a set of complex symptoms consider the simplest or most obvious cause first. However, when doctors leave medical school and begin treating patients, some need to realize zebras can also be the reason for the sound they hear. In this case, the hoofbeats pointed to PE, not pneumonia. g. Dr. David recommended a pulm workup to Dr. Drory but it never got done. No documentation. h. Smith d/c to home but in so much pain. Couldnt sleep in normal position because of R sided CP. Patients son stayed with him around the clock. Doesnt sound like pneumonia. i. Now upper GI symptoms? This doesnt fit in with lower GI pathology. But Christopher only scraped the surface by ordering the endoscopy which was negative. What about the inconsistent exam findings (lung exam). Dr. Christopher never did definitively determine why Mr. Smith had coffee grounds emesis. Application of facts to support legal elements a. Formula: violation of standard of care proximate cause of injury b. Defendants were negligent in: failure to take proper medical history, failure to conduct appropriate and careful physical examinations, failure to adequately interpret examinations and findings, failure to conduct appropriate radiology tests, failure to timely and adequately recognize Mr. Smiths serious medical condition, failure to consider and r/o PE, failure to do a pulmonary w/u, failure to appreciate the signs and symptoms of a PE, failure to communicate with other health care providers, and failure to treat PE. c. Dr. David: surgeon right hemicolectomy TEDs and SCDs were placed**SOC MET d. ER visit: 1/1/00: pts symptoms of CP (R-sided pleuritic pain), difficulty breathing and cough. SOB x 2 wks, recently worse over past 2 days. Saw Drory who failed to consider PE despite classic PE symptoms. **SOC NOT MET. Pt d/c with abx. e. Pt. presented to Dr. David on 1/5/00 for surgical f/u. Pt. had vomited (coffee grounds emesis). Probably hemoptysis swallowed blood coughed up from lungs. Upper endoscopy NEG. Admitted under Dr. Christopher. Christopher failed to consider PE in light of CP, cough, tachypnea and tachycardia. Christopher failed to investigate inconsistencies among medical record **SOC not met. f. Upper endoscopy performed by Dr. Joseph: O2 sat dropped to 84%--> Joseph did not report to Christopher or further investigate drop in pulse ox SOC not met. g. PIOPED study: the syndrome of pleuritic pain or hemoptysis was most prevalent mode of presentation of patients with acute PE and no pre-existing cardiac or pulmonary disease

h. PIOPED: predisposing factors- most prevalent is immobilization. i. PIOPED: dyspnea 73%, pleuritic CP 66% Summary of strengths of the case a. hospital delayed on providing autopsy b. pt was on dicloxacillin (antibiotic which treats pneumonia) when he was diagnosed with pneumonia by Drory c. D pulm expert (James) admitted that there was some risk of PE but there wasnt a workup! James stated that Drory most likely thought of PE but how do we know that? Drory didnt document that anywhere. James explanation of the 84% O2 sat is weak: that would be much more credible on POD #1 after the hemicolectomy BUT not a week + out from surgery! Anticoagulation may not have prevented Mr. Smiths death (but NO documentation of any doc considering anti-coagulants and of the thought process behind NOT starting anti-coagulants). Same argument goes for the placement of Greenfield filters. d. D path expert: findings not consistent with autopsy. Where is pneumonia?? Summary of weaknesses of our case a. Defense expert James: reasonable degree of probability that Smith had pneumonia, administration of anti-coagulants risky in post-op patient (in other words, if Mr. Smith had gotten anti-coagulants, he would have bled to death instead of dying from PE) b. why didnt Smiths son take him to ER earlier when his father couldnt sleep lying down?? And when Smiths son thought his father was so bad off that he needed to stay with him around the clockwhy didnt the son call the doc? c. 75% of Dr. Williams expert testimony for Plaintiffs Explanation of weaknesses of opponents case a. poor documentation by Drory even if he thought of a PE b. no signs of pneumonia on autopsy c. organizing clot found on autopsyindicative of a clot present for 7-10 days d. if pneumonia, why no fever? why no WBC test done? and how to explain fact that pt was already on an antibiotic used to treat pneumonia (dicloxacillin) Reference to burden of proof a. preponderance of the evidence (more than 50%) Explanation of the law, or key jury instructions, or verdict form a. breach of standard of care proximate cause of injury b. Drory did not maintain a high enough index of suspicion for PE; misdiagnosed patient with pneumonia; did not perform pulm w/up as recommended by David BREACH of SOC result: PE undiagnosed, and death of patient c. Joseph did not report low O2 sat; BREACH of SOC result: PE undiagnosed, death of patient c. Christopher did not put puzzle pieces together (upper endoscopy was normalso where was blood coming from), did not rectify inconsistencies in chart notes, did not consider PE BREACH of SOC: PE undiagnosed, death of patient

Explanation of reasons why the fact finder should return favorable verdict a. patient and family relied on doctors b. one by one, doctors let him down c. patient had many healthy years ahead of him and was wrongfully deprived of a longer life d. patient endured pain and suffering when the PE was not diagnosed and treated e. Mr. Smiths family lost their father (their only living parent) Description of result sought a. $575K per P for wrongful death Conclusion Ladies and Gentleman of the jury, this is a tragic case of a man who died much too early. By failing to consider, test for and treat PE, Dr. Drory did not meet SOC. There were many chances for the mistake to be recalled and remedied, but Drs. Christopher and Joseph missed those opportunities. The medical system let Mr. Smith down. These four children have lost their father forever.