Brian Fortenberry chats with lawyer Ryan Wood on how things typically play out in the courtroom and some of the questionable tactics used by both sides to argue their case.
Speaker 1: You are listening to Your Practice Made Perfect: support, protection, and advice for practicing medical professionals, brought to you by SVMIC.
Brian: Hello. Thanks for joining us today. My name is Brian Fortenberry, and today's episode of our podcast is going to be very, very interesting. We're going to have the opportunity to discuss some courtroom procedures and courtroom stories, and kind of get a behind-the-scenes look. And joining us to help us with that is Ryan Wood. Ryan, thanks for joining us today.
Ryan: Thanks, Brian.
Brian: Well, before we really get started, tell us a little bit about yourself, your background, your practice, and anything else you would like for our listeners to know.
Ryan: Sure. So, I grew up on a horse farm in Wilford County, Kentucky. I went to Transylvania University for undergrad, came up to the University of Louisville for law school. I'm in the seventh year of my practice. My practice is pretty much devoted to representing physicians and their provider extenders. I do do some work for facilities on some carry-over claims and things of that nature.
Brian: That being said, you have spent time in the courtroom, and that's really what we want to focus on in this particular episode of our podcast. So tell me a little bit about some of the more memorable moments that you have had so far in your career in a court trial.
Ryan: Sure. The one that sticks out to me the most probably is a two-week trial I had several years ago. I was probably one to two, maybe three years out from law school, and I was trying it with a senior partner here at the firm who's since retired, who was a quote "legend" in the state in terms of trial work and defense trial work. The allegations involved a med mal claim obviously. We represented a urologist. There was a co-defendant urologist that was the primary surgeon, but it was in relation to a nephroureterectomy of a late middle-aged white female who had some bladder carcinoma, bladder cancer. So they were working on one side of the kidney and removing the anatomical connection from the kidney to the bladder, and following the surgery, the other ureter on the other side of the body came out injured, all the way from where it connects to the kidney down to the bladder. It basically had kind of deteriorated away, almost like wet toilet paper would have.
Ryan: So that was kind of the underlying medical facts of the case.
Brian: Where this deterioration had happened was on the other side of where the initial procedure was, correct?
Ryan: Yeah, so if they were working on the left, the right side is what came out injured, and the right side was supposed to be maintained largely the same, so that was the plaintiff's kind of theory on the case, was that there was a focal injury on the contralateral side of the ureter that went all the way up and down the length of the ureter.
Brian: Well so, in situations like this, in allegations where you're saying there's something that has happened, and it wasn't even on the primary side, and you don't really know how maybe the injury even occurred. How does that affect the trial from your vantage point?
Ryan: Yeah, so you'll see this a couple of times, and it's rare, but there are situations in these claims, when you're dealing with anatomy, and biology, and these kind of arcane mechanisms, that there really isn't a great explanation as to why something happened, and this was that case. The plaintiff struggled throughout the case to be able to articulate a theory that met their legal burden of proof to show that the providers were negligent, so it kind of creates a difficulty on both sides. On one hand, the defense is bolstered because the plaintiffs are having a difficult time meeting their burden of proof.
Ryan: On the other side of things, juries like to know what happened in a case, and so a lot of times, defendants will defend these claims by saying, "The plaintiff's theory is wrong, and this is what actually happened." So in this case, we weren't able to say what actually happened. The defense was set up such that our experts testified that the plaintiff's theory was impossible, and we defended it on the burden of proof as opposed to being able to explain exactly what happened.
Brian: I got you, and as you said, the burden of proof is on the one making the allegations, on the plaintiff. If they were having a difficult time in this particular case with the burden of proof, how did they attempt to convince jurors of that? What angle did they take?
Ryan: Well, they hired an out-there expert from California to come in and put together a theory wherein he just used a lot of concrete, and convincing, and absolute words. Throughout his testimony on the stand, he used the word absolutely, I think in answer to every question. It would, you know, be questions such as, "Doctor, do you have any hesitancy that the ureter was injured by the Bookwalter retractor that was used?" He would say, "Absolutely not," and so, were these providers negligent? Absolutely. He just tried to sell to this jury this kind of fake absoluteness, lack of any sort of contra-theory, that I think they overreached on at the end of the day, but they brought in a guy who was obviously paid to say, in a very convincing way, their theory of the case, despite what was standing in opposition or contradiction to his case.
Brian: So then I guess from your side (the defense perspective), you were probably able to bring in experts that at that point they just had to, what, say that there could absolutely be no certainty like he was saying that this happened? Was that the way that your defense went?
Ryan: Yeah. It exactly was, and so we brought in some pretty top notch urologists in the country, and they basically testified to the technical setup of the surgery, how it was performed. There's a Bookwalter retractor that's used in the surgery, which is kind of a circular, oval-shaped apparatus that sits above the abdomen, and you then open the abdomen and retract some of the bowels to get to the kidneys and ureter with these blade retractors, I believe is what they were called. And it can be some pretty medieval stuff, in terms of exhibits at trial and things of that nature. But they basically said, "Listen, if you move this retractor all over the place on this Bookwalter, the way it's set up, you are not even able to reach the contralateral ureter in such a way that you would have a focal compression injury along the entirety of it," so they used the op note, they used their own experience in performing the procedure, and basically said, "It couldn't have gone down the way the plaintiffs are telling you it did."
Brian: I believe you said this was a two-week trial. Correct?
Brian: What was the outcome of the case, and how long did it take the jury to be able to come to that verdict?
Ryan: So we got a defense verdict, and it only took a couple of hours.
Brian: So, it was a relatively quick case, then, that was found for the defendant. Was there any appeal, or anything like that at that point, or was the case pretty much over at that?
Ryan: There was an appeal that followed. Of course, any time you have a lot of money spent and a two-week trial, you don't have a perfect trial, so there are issues. During the trial, the plaintiff's lawyer kept wanting our experts to accept his theory of the case, and would proffer a question such as, "If the theory that I'm putting forth is possible, you would agree with me that the defendants were negligent." We were objecting, and our experts were refusing to answer the question because they considered the plaintiff's theory of the case impossible. And so if one considers an impossible theory possible, it's kind of an intellectual inconsistency, and an evidentiary one as well. And so we've actually got a good ruling from the court on that, and they were not required to answer that question in front of the jury.
That was one of the issues on appeal. Interestingly, the Court of Appeals focused upon the comparative negligence instruction that was given to the plaintiff in the case. She had been historically told by multiple providers over the years to stop smoking, and she didn't do so. And you know, we all have our own vices, and I'm not in a position to make any sort of judgment on that, but from a legal perspective, in Kentucky, it's somewhat of a high bar to get a comparative negligence instruction on a plaintiff, meaning that you're going to apportion some of the faults to the plaintiff. It didn't really come to fruition, because it was a defensive verdict, but they were interested in the idea that a provider could tell a patient to stop smoking, and if the patient did not, that they were somehow culpable or liable for their own subsequent condition that developed.
Brian: You know, that is a really interesting case. Ryan, as we get ready to wrap up this episode of our podcast, for those listeners, physicians in particular, that are out there today, that are listening to our podcast, you have a great perspective, of being actually in the courtroom and defending physicians. What are two or three points that you would give a physician, to say, "You know, when you go to trial, this is really important from the defense perspective," not necessarily what goes on even before the trial, but during the trial? What can they expect, and what should they be prepared for?
Ryan: Well, I think they got to approach it with thick skin. By nature, physicians are very caring, and you're going to sit in a proceeding for sometimes several weeks, where your name is thrown out there, your name is criticized, your name is the one, and your head's the one on the chopping block, and you have to sit quietly through all of that, and your only real opportunity to speak is when you're on the stand. And so you kind of have to take the high road at every turn, and then when you get on the stand, be reasonable, be indignant in your care, but have a kind of high-class approach to things. And that's very difficult to do, I think, for physicians, and it's not very light stuff. It is heavy stuff. It's almost a competition, in a sense.
Ryan: I would just encourage them to kind of have a game-time mentality for it, and you're going to go in there, take care of business, come across as a prudent, caring physician, who is involved in this patient's care, and you know, "I'm here to answer questions and tell you why my care was appropriate."
Brian: Well, that's a great perspective, and I think our policyholders, and physicians, and practices should take heart in the fact that we have incredibly competent attorneys that not only work within our company here at SVMIC, but also contract with wonderful folks like you and your practice, and are going to be there for them in those worst times, whenever they feel like they're being drug through the mud. Ryan, I can't thank you enough for taking the time out of your busy schedule to join us today to discuss this. Thanks for being here.
Ryan: Thanks, Brian. I appreciate it.
Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect, with your host, Brian Fortenberry. Listen to more episodes, subscribe to the podcast, and find show notes at svmic.com/podcast.
The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice, and specific legal requirements may vary from state to state and change over time.
Ryan Wood is a medical malpractice defense lawyer practicing at Napier Gault Schupbach & Stevens, PLC, in Louisville, Kentucky. Since graduating from law school, his practice has been exclusively devoted to representing physicians in defense of medical negligence claims. He is AV Preeminent rated by Martindale-Hubbel: Highest Possible (Awarded 5th year of practice) and named to Super Lawyers: Rising Stars 2020. He practices in both Kentucky and Indiana. He can be reached at firstname.lastname@example.org.
Brian Fortenberry is Assistant Vice President of Underwriting at SVMIC where he assists in evaluating risk for the company and assisting policyholders with underwriting issues. He has been involved with medical professional liability insurance since 2007. Prior to his work at SVMIC, Brian worked in the clinical side of medicine and in broadcast media.