(Note: This story is adapted from Patrick Malone’s book, Winning Medical Malpractice Cases with the Rules of the Road (Trial Guides 2012), available from Amazon and the publisher). 

Our client Mike Wood, age 62, lost use of his left hand when his surgeon destroyed a nerve in an effort to open up an artery in the shoulder feeding the arm. Before the surgery, the arm worked fine; it was warm and pink and Mr. Wood could do everything he needed to do with his arm and hand. But in taking blood pressure one day, nurses could not get a pressure reading in that arm because it was fed by collateral circulation deep in the arm rather than through the normal path, the subclavian artery, which had become blocked years earlier. The patient was referred to a thoracic surgeon, who sold Mr. Wood on the idea of preventing future consequences from the lack of flow through the subclavian artery. The surgeon, Dr. James Tzeng, used a “cut-down” procedure, cutting into the shoulder and into the bundle of nerves and blood vessels in the brachial plexus feeding the arm. From this access point, he inserted a balloon into the artery and snaked it back toward the neck, against the flow of blood, up to the area below the collarbone in the subclavian artery where the blockage was. A safer and more commonly used approach would have been to gain access to the blocked artery either through the groin (entering the femoral artery and working up to the heart and then to the subclavian artery) or through the elbow and work back against the blood flow to the blockage. Either through the groin or the elbow, the surgeon could have inserted the balloon tube into the patient’s vasculature with a simple needle stick, since the arteries were close to the skin in both areas. Instead, when he chose the shoulder entry point, he had to use scalpels and clamps to cut down through tissue and spread it apart to get to the artery where he inserted his balloon equipment. Dr. Tzeng tried to justify his chosen route by saying that it minimized the distance the balloon would need to travel to reach the blockage, and thus reduce the risk of damaging the blood vessel from the inside. But the fact was that no other surgeons used his combination invasive/non-invasive approach, which eliminated the advantage of avoiding cutting near nerves. Dr. Tzeng admitted in deposition that he had no experience with the non-invasive approach to this blockage. He also admitted that when counseling the patient about the need for the surgery, he had urged Mr. and Mrs. Wood not to put it off, telling them, “You might not be so lucky next time.”

When we first presented the case to a focus group, we thought of it as primarily a case of unnecessary surgery. Nothing was wrong with how Mr. Wood’s arm worked before the surgery. The surgeon’s idea was to prevent future potential problems from the blocked artery. Our secondary focus was on the unorthodox way that Dr. Tzeng went about doing the surgery.

After focusing our tentative list of Rules with several mock juries, we learned that our primary focus on unnecessary surgery needed rethinking. The patient’s condition, a blocked major artery feeding the arm, sounded ominous at first blush to a lay audience. We spent a lot of time explaining how surgeons don’t operate on this kind of blockage until it produces frequent symptoms, which Mr. Wood didn’t have. But the focus group participants still thought he needed the surgery. Once plaintiff’s first theory failed, the other theories, based on surgical technique and failure to have a full informed consent discussion, looked unpersuasive to the focus groups too.

Another problem with primary emphasis on the unnecessary surgery theory was that it drove the focus group participants to start looking for fault with the plaintiff, for failing to obtain a second opinion before consenting to the surgery.

So we reworked our list of Rules to focus first on the surgeon’s failure to use the accepted technique for unblocking the artery. His unwise choice of technique was driven, we contended, by the surgeon’s lack of experience with the accepted techniques. Plus, the way his office was set up, he would get no fee at all if he referred the patient to one of his partners who had more experience. So self-interest played a role here. We also placed the unnecessary surgery issue into an informed consent claim: failure to advise the patient of the lack of urgency so that the patient would have the time to obtain a second opinion (thus trying to defuse the anticipated “no second opinion” defense).

Here are the Rules used at trial:

• A vascular surgeon should always:
  • Give the patient the safest option that does the job.
  • Avoid cutting near nerves if the surgeon doesn’t have to.
  • Ask for help if the surgeon lacks experience.
  • Tell the patient the important facts so the patient can make an intelligent decision.
  • Put the patient’s interests ahead of the surgeon’s interests.

A simple PowerPoint slide listing these rules was used in opening statement, closing argument, and the direct examination of the plaintiff’s expert. Notice how hard we worked to put the rules into plain English, specific to the case. For example, here’s the before-and-after on the informed consent rule:

Before: A doctor must discuss with the patient the risks and benefits of surgery and obtain the patient’s informed consent.
After: A surgeon should always tell the patient the important facts so the patient can make an intelligent decision.

The first formulation of this rule puts the case into the medical-legal frame, where lawyers and expert witnesses may be comfortable, but few jurors are. The second brings the case into the jury’s domain.

One important piece of this was to make sure our “rule” comported with the jurisdiction’s law of informed consent and the standardized jury instruction. I have looked at informed consent instructions in a number of jurisdictions and they range from horrible and incomprehensible to pretty decent. Maryland’s, luckily for us, is one of the pretty decent, and it has language near the beginning that we were able to grab onto for our rule.

Here is the standard Maryland instruction:
Before a physician provides medical treatment to a patient, the physician is required to explain the treatment to the patient and to warn of any material risks or dangers of the treatment, so that the patient can make an intelligent and informed decision about whether or not to go forward with the proposed treatment. This is known as the doctrine of informed consent.

In fulfilling the duty to disclose, the physician is required to reveal to the patient the nature of the ailment, the nature of the proposed treatment, the probability of success of the proposed treatment and any alternatives, and the material risks of unfortunate outcomes associated with such treatment.

A “material risk” is defined as “a risk which a physician knows or ought to know would be significant to a reasonable person in the patient’s position in deciding whether or not to have the particular medical treatment or procedure.”

The physician’s duty to disclose material risks to the patient is based upon an objective standard rather than a subjective standard. This means that the question of whether a risk is a “material risk” is based upon whether a reasonable person in the position of the patient would have considered the risk to be a material risk. Whether the patient would have consented to the procedure, if informed of the risk, is a relevant factor to be considered, but is not conclusive.

The physician is not required to divulge all risks, but only those which are material to the intelligent decision of a reasonably prudent patient.

Ultimately, this presentation with the surgical errors first and the informed consent at the tail end of our evidence became powerfully persuasive at trial. But we still had to face a defense put up by two of Dr. Tzeng’s vascular surgeon colleagues. In their testimony, they could cite no literature advocating the brachial plexus cut-down for this supposedly non-invasive percutaneous balloon procedure, and they could cite no one they knew who did it this way. Nor did they unblock subclavian arteries this way. But they told the jury it was still OK.

They also testified about the indications for surgery. Despite lack of any symptoms of subclavian steal (dizziness from the arm trying to grab blood flow from one of the arteries going up the back of the neck to the brain) or of ischemia in the hand, they also said surgery was absolutely okay to do because of the possibility of future symptoms. Even though, again, no literature advocates this surgery for non-symptomatic patients.

The trial was also an educational lesson in the vital importance of both hands to everyday tasks like buttoning clothes, spreading peanut butter on bread, and, for Mr. Wood, operating a backhoe and other heavy equipment at his construction job. 

A jury in Prince George’s County, Maryland Circuit Court assessed damages against the surgery group of $1,451,600. Click here to read Mr. Malone’s closing argument. Read the opening statement at the beginning of trial here. In October 2011, the verdict was affirmed by the Maryland Court of Special Appeals. You can read the decision here.

¹ Taken from Maryland Pattern Jury Instructions: Civil, No. 27:4.