The reason for this is simple: the medical records never tell the whole story. Many times they are incomplete, fudged, sanitized, and in some cases, altered. Like a glacier that's 5% exposed to the naked eye and 95% underwater, virtually every medical malpractice case involves plunging below the surface of the medical records into the deeper abyss of what really happened. .
Because the advantages lie with the defendant doctor, there is ample opportunity to evade, "clarify," or "explain" what truly happened, no matter what the "official" records say.
Case in point: in a recent Ohio medical malpractice lawsuit, we claimed that a physician was negligent or "fell below the standard of care" for not immediately applying an Ambu Bag (a bag that manually forces air into a patient's lung when squeezed) to a patient in severe respiratory depression due to anesthesia drugs that had paralyzed the patient's breathing after an outpatient procedure. The recovery nurse did an excellent job of documenting the patient's extremely how blood pressure, heart rate, and lack of consciousness upon arrival to the recovery room or PACU.
We claimed that the rules of good medical care required the physician to take immediate action and force air into the patient's lungs with the Ambu Bag to take over breathing for the patient. The nurse had documented that four crucial minutes had gone by before the physician finally began to use the Ambu Bag to attempt to breathe for the patient.
It was our experts' opinion that allowing four minutes of not taking over breathing for an unconscious, anesthesisa drug-paralyzed patient was a clear breach of the rules of good medical care, and sadly led to her anoxic brain damage due to a lack of oxygen.
There was a lot more to this story, but the Ambu bag delay was one of the main issues.
When it came time for the doctor's deposition, I anticipated the defense that the Ambu bag was used "immediately" after the patient's ominous vital signs were discovered, despite what the nurse had documented to the contrary. I expected that the physician would claim that the nurse's documentation of a four minute delay was incorrect or wrong. Sure enough, that's what the doctor said at the deposition.
But one of my lines of questioning was to get the doctor to admit that if the nurse's documentation of a four minute delay WAS accurate, the doctor was negligent. Below is a portion of the transcript addressing this issue:
Q. If an Ambu bag were immediately available, okay, and if there was a 4-minute delay between ____'s ominous signs that we went over listed at 9:24 and the time an Ambu bag with positive pressure ventilation was applied, does that fall below the standard of care?
A. I would take issue with the times, and I don't know -- I ventilated the patient when I felt ____ needed it.
Q. Okay. I understand that, but my question was very specific. I'm going to repeat it. If an Ambu bag was immediately available, and if there was a 4-minute delay between ____'s ominous signs that we went over listed at 9:24 and when an Ambu bag with positive pressure ventilation was applied, does that violate the standard of care?
MR. _______: Objection; asked and answered. Go ahead, you may answer it again.
MR. WILSON: It was not answered.
MR._______: It was. Go ahead, you may answer again.
A. I ventilated the patient when my, when I felt that there was a real problem. We immediately -- a lot of things were happening. Resuscitation was started immediately on receiving these vital signs, four vital signs.
Q. With all due respect, Dr.__________, my question wasn't answered. I would like an answer to the question. If there was a 4-minute delay between ______'s signs that we went over and when an Ambu bag with positive pressure ventilation was applied, does that fall below the standard of care?
A. I guess I would have to say yes.
To be honest, extracting this admission involved no secret or "Jedi mind trick" ("These aren't the drones you're looking for"---one of my favorite Star Wars lines but I digress)--at least among Ohio medical malpractice lawyers who've been to this rodeo a time or two. To be sure, no one admission at a deposition will win the day.
But it is proof that listening closely to the question--AND persistence in a firm, respectful way-- can pay off. More importantly, it can serve to simplify or narrow the myriad of issues that a jury will ultimately decide.