Sample Medical Malpractice Closing Statement Transcript

Below is an example of a medical malpractice closing statement given by Rod Gaston in a brain aneurism misdiagnosis case.

  1. Rodney GastonP R O C E E D I N G S
  2. THE COURT: Folks, thank you. Please have a seat.
  3. Have a seat. Madam Clerk, good afternoon. Shall we continue,
  4. please? Sir?
  5. CLOSING ARGUMENT BY RODNEY M. GASTON, ESQ.
  6. ON BEHALF OF THE PLAINTIFF
  7. May it please the Court, good afternoon to the jury.
  8. As you look over to the trial table, you'll notice that Ms.
  9. White is not here. She's out of the courtroom, because she
  10. did not necessarily want to hear lawyers talking again about
  11. her child's death and she did not want her emotions to
  12. interfere with the job that you have to do.
  13. In our society, we place a very high value on human
  14. life. And when that human life is taken away by the negligence
  15. of someone else in our society, the community as a whole is
  16. responsible for fully compensating that person for the losses.
  17. And that's Jonathan and his mother. In this case, what
  18. happened to Jonathan during the week of July 2, 2015 is
  19. inexcusable. And you as members of the jury are the only
  20. persons in our society who can right the wrong and provide
  21. justice in this case.
  22. There is absolutely no defense to what happened to
  23. this child. Ms. White, all she and Jonathan wanted was for
  24. his medical providers to do their job. That's all any of us
  25. expect of any person, to do their job. And she only asked them
  1. to do one thing. She asked one question. What is wrong with
  2. my son? That's it. They couldn't even answer that question.
  3. That's what cost this child's life.
  4. Now, I'm going to explain to you by using the
  5. evidence in this case to give you a roadmap how you can reach
  6. the correct and just verdict in this case so that Ms. Jones
  7. and her son can obtain justice. Brady is no longer with us.
  8. That means that you are his voice. You will speak for him in
  9. the verdict that you render in this case.
  10. Before I talk, I'm going to have to go over some of
  11. the evidence and I know we've been here for a couple of weeks.
  12. But the evidence is important. And before I get to each of the
  13. individual defendants and what they did wrong, there is one
  14. thing that's very important. When evaluating this child, we
  15. learned of the red flag. The red flag in this case we heard
  16. from Dr. Duncan, who was the very last witness.
  17. The red flag is this -- and red flag means danger.
  18. The question is, was this headache waking this child up at
  19. night? That was one of the most important questions for all of
  20. these doctors and medical providers to answer, because if the
  21. answer to that question is yes, then something is really wrong
  22. and this isn't just a child who has another headache.
  23. Dr. Valderrama -- we know the child couldn't sleep.
  24. He was unable to sleep. Dr. Valderrama never asked that
  25. question. Dr. Martin never asked that question. Dr. Mitchell
  1. -- and this is interesting. This is how important the answer
  2. to that question was. I asked Dr. Mitchell -- was it important
  3. for you to know if these headaches were waking this boy up? I
  4. asked her that question three times. Every time she avoided
  5. the answer. Then I needed help from the judge to get the
  6. answer to that question. And the judge said, "ma'am, answer
  7. the question." She knew the answer to that question would be
  8. devastating for their side, because the answer to that question
  9. was very important, because then you look somewhere else. They
  10. never asked. They never got the answer to the question which
  11. they needed. And it's very important.
  12. Now, let's talk a little bit about what the
  13. obligation was. This is the obligation of all these medical
  14. providers. They had to rule out the life threatening
  15. conditions. And keep in mind, we're not saying that they had
  16. to know specifically that this was a rare condition of sentinel
  17. bleed and they had to focus on that and that was the only thing
  18. they had to do and the only thing they had to rule out. That's
  19. not it. That's not it, folks. They had to rule out the life
  20. threatening conditions.
  21. One of those life threatening conditions is what
  22. killed this child. All they had to do was look for them, and
  23. they had all the signs and symptoms that this child had life
  24. threatening conditions. So we're not claiming that they had to
  25. think specifically, okay, this is the one, this is the only one
  1. we've got to find. It's the only one. That's not it.
  2. Globally, the child presented with symptoms of what's called
  3. secondary source of headaches. And they had to be aware of
  4. that and rule out those life threatening conditions and they
  5. would have found the life threatening condition that killed
  6. this child.
  7. The standard of care. The judge told you -- it's
  8. pretty simple. It's just what a reasonably competent medical
  9. provider would do under similar circumstances. That's all
  10. that's required. Bare minimum. Reasonably competent. That's
  11. all we ask for. That's all any of us ask for in our society.
  12. And who was reasonably competent? Two medical providers were.
  13. Nurse Practitioner Tanner. She's the first person that saw
  14. this child. She recognized that his condition was so ominous
  15. that she sent him right to the hospital. She got it right.
  16. That's why she's not a defendant in this case. She got it
  17. right. She did exactly what she was supposed to do. A nurse
  18. figured this out. From the very first visit. But none of the
  19. other doctors did.
  20. Children's Hospital, unfortunately, and it was too
  21. late at that time, but they did what they were supposed to do.
  22. They took the right history. They knew what was going on with
  23. this child. This was a complete system failure. Complete from
  24. beginning to end. They only had one job, rule out the life
  25. threatening conditions. When in doubt, rule it out. Better
  1. safe than sorry. It doesn't do any good to be sorry when the
  2. child is dead. It's too late. Safety. It's all about patient
  3. safety. That's the complete medical system. Life threatening
  4. conditions. Okay? Aneurysm is a life threatening condition.
  5. Nobody disputes that. A lesion is a life threatening
  6. condition. Nobody disputes that. A tumor, absolutely. Nobody
  7. disputes that. And a bleed, which is what the child had.
  8. Nobody disputes that these are life threatening conditions.
  9. And guess what? He had all of these symptoms for these life
  10. threatening conditions.
  11. Inaccurate history. Examine the evidence. You heard
  12. all these different doctors explain the history that they had
  13. taken. None of them had the exact history right. They picked
  14. different drop down menus. They didn't ask the right
  15. questions. Or I asked the questions, but I didn't document the
  16. answer. Really? Aren't you supposed to document the answers
  17. if you're a medical doctor? Because when someone else looks
  18. behind you, you can say, I did what I was supposed to do.
  19. Okay, if it's in the chart, you did. If it's not, how do you
  20. know what you did? Just trust me. Trust me. I did
  21. everything. Well, that's why there's medical documentation.
  22. And that's what our society requires.
  23. Be thorough. Be thorough. I heard one doctor say, I
  24. don't have time to write two paragraphs. If you choose the
  25. profession of a doctor -- nobody forced you to do that -- and
  1. you don't have time to write two paragraphs for a child that
  2. you're entrusted to care for? And you're being paid to do
  3. that. We're not asking you to do something that you weren't
  4. trained to do. We're asking you to do something that you were
  5. trained to do. And when you go back in the jury room, there's
  6. a document that we introduced that we didn't talk much about.
  7. You may or may not look at it -- but if you want to
  8. know how many patients these doctors were in charge of seeing
  9. on the second, for that four hour window, it was 18. How much
  10. time do you think Dr. Valderrama and Dr. Martin spent with this
  11. child? It's no excuse that they have to see 18 patients. You
  12. can't rush a patient through because you have another patient
  13. that's waiting. It's like we're going to do a thorough job.
  14. The corporation that hired these doctors put them in
  15. charge. And the action of the Gunson (phonetic sp.)
  16. Corporation too, for their negligence -- to take their time.
  17. You expect the doctors -- we all expect the doctors to spend an
  18. equal and fair amount of time with each of our "children."
  19. Each child is entitled to equal care under the law. You can't
  20. shortchange a child.
  21. It's obvious that Ms. White, who was born in another
  22. country, came to this country lawfully and got a job as a
  23. productive citizen. English isn't her first language. Spanish
  24. is. They never asked her if she wanted a translator. Why not?
  25. Come on, now. This community is diverse. We have people from
  1. Asia, people from Vietnam, people from India, people from South
  2. America -- all in our great community here. And when you go to
  3. a hospital, the hospital should recognize, okay, if this
  4. patient does not speak fluent English, how about asking them?
  5. Dr. Valderrama speaks the same language as Ms.
  6. White, but she decided, I'm not going to speak to her in
  7. Spanish. We're just going to try to get through in English.
  8. If there's a problem with communication, it is the provider's
  9. responsibility to ensure adequate communication. That's their
  10. job. That's what they're trained to do. They never asked for
  11. a translator.
  12. Did these providers talk to each other? Nowhere in
  13. the chart is there a statement of Dr. Martin -- I spoke to Dr.
  14. Valderrama. I reviewed with Dr. Valderrama her plan, her
  15. initial mental impression. It was migraine. That's wrong. I
  16. corrected her. Now we've got the right diagnosis. Right
  17. diagnosis. We know there was no real communication, because
  18. what papers was this child discharged with? Migraine
  19. headaches. How do you give a mother discharge instructions for
  20. a condition the child does not have? Does that make any common
  21. sense? Does that make any medical sense? Does that make any
  22. sense? It's up for you to decide that.
  23. Medical records. Missing information. Where's all
  24. the answers to all the important questions? They're not there.
  25. They're supposed to be there. Wrong information. There's
  1. information in the chart that's wrong. Flat out wrong. We
  2. know there's information in the chart that's wrong, because
  3. International Pediatrics simply cut and pasted the medicine
  4. that they had given the child way before, and they kept going
  5. through the chart and sticking with the chart. Wrong
  6. information. And it's their own chart.
  7. False information and mistakes. How many mistakes
  8. are we going to allow for the care of a child? Jonathan's
  9. symptoms -- here we go -- nausea, vomiting ten times. In your
  10. everyday life, have you ever heard of a child vomiting ten
  11. times in one day that didn't have a stomach virus and wasn't
  12. suffering from food poisoning? What's causing this? This is a
  13. big deal. Parents want the answer to this question. She never
  14. got the answer.
  15. Severe headache, eight out of ten. It's not a one
  16. out of ten. It's eight. Neck pain. All these symptoms match
  17. a brain bleed. Everyone said they did. No doubt about it.
  18. They do. Tanner's note page 139 -- it's in the record. You
  19. can look at it. She did the right thing. "I saw no reason for
  20. him to have such severe vomiting." No reason. She is a nurse
  21. practitioner in a pediatric office that sees hundreds and
  22. hundreds and hundreds of children.
  23. In fact, the doctors there staff their offices with
  24. this nurse practitioner, because they believe she's competent
  25. enough to do the evaluation. And she was. And she figured
  1. out, okay, what is the reason for the severe vomiting? She saw
  2. none. In all of her experience, she can't figure it out.
  3. Which means something else is going on with this child.
  4. Something serious. He appeared very ill.
  5. If you look at her note, he had normal vital signs.
  6. Normal. But he is ill. That tells you that a child can have
  7. normal vital signs and still be very, very ill. So when they
  8. tell you the reason we didn't do anything else is because he
  9. had normal vital signs, whoa, whoa -- back up. Back up. She
  10. knew the child had vital signs. He appeared ill, and she knew
  11. what to do. And none of these other doctors could figure it
  12. out.
  13. And you don't have to look any further to understand
  14. what the standard of care requires in this case, because the
  15. nurse has it right here. The reason she sent this child to the
  16. hospital was to rule out serious causes for the headaches.
  17. Those are the life threatening conditions. She knew what had
  18. to be done. All of these other doctors -- more training than
  19. the nurse, more experienced than the nurse -- emergency room,
  20. board-certified doctors, fellowship trained doctors -- they
  21. couldn't know to rule out the more serious causes. That's why
  22. this child is dead.
  23. Dr. Valderrama, third year resident. I understand
  24. she's a third year resident. She's still a medical doctor.
  25. She's still licensed by the State of Maryland to take care of
  1. patients. She doesn't have the training of a board certified
  2. doctor. But remember, she went through her pediatric neurology
  3. rotation already. She knows what to look for in children,
  4. because she worked side by side with a pediatric neurologist to
  5. know what to look for, the danger signs to look for. She
  6. already knew that. So she says, I'm just a third year
  7. resident. Well, wait a minute. Hold on a second. You don't
  8. get a pass because you're a third year resident. The judge
  9. didn't say the standard of care applies to all doctors except
  10. for third year residents. It applies to everybody.
  11. Now, no prior episodes. Drop down menu. This was a
  12. big deal. She put no prior episodes. Why is that important?
  13. Because of the child didn't have any prior episodes, this was a
  14. huge, huge, huge deal, a big red flag that required more
  15. evaluation. They had to do something to change that. Because
  16. that didn't match the defense the lawyer came up with. And
  17. what did they do to change that?
  18. She also failed to ask the important questions. She
  19. failed to recommend CT. She changed her deposition testimony.
  20. If you recall -- and I know you've got to remember back, she
  21. said this was accurate. And on the witness stand, oh, now,
  22. it's a mistake. Now it's a mistake. I didn't mean to do that.
  23. So she's changed it. No, that's a mistake. And she changed the
  24. medical chart. No, the drop down menu was wrong. I picked the
  25. wrong thing. I didn't know what I was doing.
  1. Interesting enough, what she picked to change is
  2. exactly what matches the defense they're presenting to you in
  3. this case. Isn't that convenient, that the one thing she
  4. picked to change matched the defense.
  5. And if you know anything about investigations, if you
  6. watch any type of police show, what you look for is did someone
  7. change the story? When you change the story, there's a reason
  8. why. Why did she change her story in this case? That's for
  9. you to decide, why did it change? She gave the patient the
  10. wrong information.
  11. Dr. Martin, the doctor who is supposed to be
  12. supervising Dr. Valderrama, no documented discussion of the
  13. conversation. None. I mean, if you're supervising someone,
  14. don't you want to put in the record I supervised this doctor, I
  15. did this, I did that, I did this, I did that -- because that's
  16. your job. Her employer who hired her to do this job, doesn't
  17. she want to show her employer, I'm doing the right thing --
  18. here's my documentation.
  19. I'm properly supervising this younger doctor, because
  20. I've got more experience. No detailed documentation of her own
  21. exam. Two sentences. There wasn't a detailed history and
  22. physical that Dr. Valderrama did. Just a couple of sentences.
  23. And she thinks that's adequate. You have to decide whether
  24. that's adequate or not. No CT scan.
  25. Okay. That's a problem. This child had signs and
  1. symptoms of life threatening conditions, and they didn't even
  2. order a CT scan. How easy is it to do a CT scan? It's right
  3. down the hall. Same hospital, same floor. Have the entire
  4. results back within an hour. The child was there for three and
  5. a half hours. Plenty of time to order it. They just didn't
  6. feel like it. Approved a discharged with migraine headache
  7. papers.
  8. Was she really paying attention when she approved
  9. migraine headache papers to give to this child, when as we all
  10. know, they didn't diagnose migraines in the emergency room?
  11. Why are you giving papers for migraine headaches? Come on.
  12. What's going on here? Are you paying attention to this child
  13. or not? She signed the note five days later.
  14. Now, I understand that sometimes doctors get busy. I
  15. get that. But she was going away for four days. She had four
  16. days off. And she couldn't spend five minutes at the computer
  17. before she left the hospital to put her note in the record?
  18. She knows how important her notes are, because other doctors
  19. read them, especially if the child comes back to the hospital.
  20. She knew that. And she left.
  21. And how does she remember what she did five days
  22. later? This is kind of interesting. Oh, I've got specialized
  23. training for my brain. I've got specialized training so I can
  24. remember things better than anybody else, because I'm a doctor,
  25. and I can do it, I can remember six patients. Well, what
  1. Courtroomtraining did you have? Well, not really any school training,
  2. just from being a doctor and working here. Is that right?
  3. Okay. That's why you can remember things better than anybody
  4. else? It's up to you whether you decide to give any
  5. credibility to that.
  6. Dr. Mitchell -- her drop down menu -- character of
  7. symptoms unknown. It's missing. That's missing information.
  8. Degree at onset. Unknown. Isn't it important to know these
  9. facts for this child? Headache waking Jonathan up. Unknown.
  10. This is the red flag I was telling you about. That's why I
  11. spent so much time getting the answer from her, because I knew
  12. how important it was. She knew how important it was. Now you
  13. know how important it is.
  14. This is something that is really unexplainable. Dr.
  15. Mitchell knew the exact treatment plan this child had three
  16. days before. Remember what it was. They gave him an IV of
  17. Toradol. It's pain medicine. The child felt better. Well,
  18. you can shoot pain medication into the child's vein -- anybody
  19. is going to feel better for a while. Two hours later, the
  20. headache came back. She knew that because she read that. She
  21. knew that treatment plan didn't work for this child. And what
  22. did she do? The exact same treatment again.
  23. So she expected that the same treatment plan that the
  24. doctors used three days before but failed was going to work for
  25. this child. Why? There's a thing in our lives that we've
  1. learned that if you do the same thing over and over again and
  2. expect a different result, what is that called? You all know
  3. what's that's called. That's what she did. That's what she
  4. did.
  5. The thing about Dr. Mitchell, though, she considered
  6. the CT. She almost got it right. She considered it. She
  7. said, oh, nope, not for this child. Not for this child. Why?
  8. Why? Why not for this child? He's been to the ER twice. Now
  9. he's not sleeping. He's not getting better, folks. He's
  10. getting worse. He's getting worse. The judge told you about
  11. foreseeability. When the danger increases, a reasonable doctor
  12. acts more carefully.
  13. We've already had this child in the emergency room
  14. once. The doctors already evaluated his entire condition once.
  15. He's back again with worse conditions. She said when she
  16. pulled up her chart that note came up from before and she was
  17. on heightened alert status. But she didn't do anything.
  18. You've got to think of something else. You have to think of
  19. something else.
  20. And here's what's definitive. You can determine
  21. whether this is important or not. But she testified falsely in
  22. her deposition. And this is important. Dr. Martin's note
  23. wasn't in the chart when she saw it. Dr. Martin's note was put
  24. in the day after. She said at her deposition, I read that note
  25. and I considered everything that day. Then she realized what
  1. she said was false. You have to determine the weight to give
  2. that with respect to everything she said. That's for you to
  3. determine. I'm not going to tell you what weight to give it.
  4. That's your job.
  5. Longely, physician's assistant. Where's the pain
  6. score? The first thing you ask someone -- you hurting? What's
  7. your level of pain on a one to ten? Doesn't every doctor --
  8. any time in the community, think in your own lives, when you go
  9. to a doctor and you're hurting, what's your level of pain? She
  10. never asked. That is probably something that is important for
  11. this job. Differential diagnosis, she -- give her credit for
  12. this. And she deserves a great amount of credit for this --
  13. she got the right differential. She got the right
  14. differential, and she deserves great credit for that, because
  15. she figured it out.
  16. But the problem is she didn't act on it. She knew
  17. it. And she got it right, but she just didn't act on it. If
  18. you know it and you get it right, you act on it. And if she
  19. had simply acted on it, this child would not have died. And
  20. the way that she was supposed to act on it was to rule it out.
  21. You rule it out by a CT. You heard Dr. Bates say of the
  22. responsibility she had -- get this child to the ER for a CT
  23. now. You can't wait with a hemorrhage. You wait with a
  24. hemorrhage, you're going to have a bursting aneurism and the
  25. child is going to die. Why wait?
  1. Did anyone on the defense give you a reasonable
  2. explanation why you wait? Why are you waiting? What harm
  3. would have it done for this child to have done the CT that day?
  4. No harm. What benefit? It would have prevented the child's
  5. death. All she had to do was call the neurologist. Think in
  6. your everyday life -- hypothetical question. Physician
  7. Assistant Longely called Dr. Edelstein. That's who they're
  8. referred to. Dr. Edelstein, I have your patient because
  9. Jonathan was her patient.
  10. He's been to the ER twice with horrible headaches.
  11. He's gotten treatment from the ER twice that's not working.
  12. Now he's not sleeping. He's here again. I have in my
  13. differential a diagnosis of aneurism and hemorrhage. I need
  14. your help. Could I send this child over today? Can you
  15. squeeze this child in on what is a potentially life threatening
  16. situation among all the other children who are there for a
  17. regular visit? Can you squeeze him in, please? What do you
  18. think Dr. Edelstein would have said? Sure. I'll take a look
  19. at that child. But she never made the call. Never made the
  20. call.
  21. And the cut and paste -- we know that there was wrong
  22. information cut and pasted into this chart. And we also know
  23. she never signed her note. She was supposed to sign it. She
  24. was out of town. Someone else got in there and signed it. She
  25. didn't sign it -- the supervisor didn't sign it either. You
  1. can determine what weight to give that failure. Remember, it's
  2. a system failure all the way down the line.
  3. Dr. Edelstein, the neurologist, cut and paste. Now,
  4. you have to determine -- and it's up to you, based upon the
  5. evidence -- is what Dr. Edelstein did is simply take the
  6. information from the 2009 note and paste it into this note?
  7. That's up for you. These two documents will be there for you
  8. to review.
  9. And what we're talking about is a neurological exam.
  10. It is word for word. Word for word. Is this just a
  11. coincidence or is it something that Dr. Edelstein said -- we're
  12. just going to cut and paste. It's up for you to decide. Use
  13. your common sense. How can two evaluations six years apart be
  14. exactly identical, word for word? It's up to you. You have to
  15. decide that.
  16. Now, with respect to Dr. Edelstein. Do you remember
  17. how long Dr. Younkins (phonetic sp.), who was here today, told
  18. you that he takes to evaluate a child like this? Three hours.
  19. He does a thorough evaluation to rule out any life threatening
  20. conditions for children that come to his office. Three hours.
  21. How long did Dr. Edelstein take with this patient? She already
  22. knew the history. Two visits to the ER. Two visits to the
  23. primary care. They still haven't figured out what's causing
  24. the child's headaches. Do you think she took three hours or
  25. not?
  1. Dr. Edelstein did on the witness stand admit, you
  2. know, when you have a child like this, it's her job to reach a
  3. correct diagnosis. And what did we hear Dr. Younkins say? You
  4. don't have to do that. You're a doctor, aren't you? You don't
  5. have to reach a correct diagnosis? Can you imagine if you're a
  6. member of this community and you into the pediatrician's office
  7. and you ask the pediatrician, doc, what's the diagnosis, and
  8. the doctor says, I don't have to reach a correct diagnosis.
  9. Would you ever go back to see that doctor again? That doesn't
  10. make a whole lot of sense from what's going on on the defense
  11. side.
  12. She did think Jonathan had a brain lesion, to her
  13. credit. She did. That was the right thing for her to be
  14. thinking for this child. To her credit, she ordered a CT of
  15. the brain. Exactly what should have been done days before.
  16. Here's the order. And what I couldn't understand -- and you
  17. have to determine whether you understand it -- why does she say
  18. I didn't order the CT when we have her order signed by her on
  19. the 8th?
  20. She made the correct differential diagnosis which was
  21. one of the life threatening conditions. She ordered the right
  22. test. But she -- like Physician's Assistant Longely, didn't
  23. take it to the next step. The next step is get the test done
  24. now. Why wait? Why wait? The answer to that question has
  25. never been explained by any doctor.
  1. And she kept the truth from the patient. This is a
  2. little disturbing, or maybe it's a lot disturbing. She thought
  3. that this boy had a brain tumor. She's ordering a CT for the
  4. brain tumor. The parent is sitting in the office. What do you
  5. expect a doctor to tell a parent of a child when the doctor
  6. thinks the child has a brain tumor? You expect the truth. Why
  7. did Dr. Edelstein withhold the truth from this parent? It's
  8. unexplainable, because it's indefensible. And she failed to
  9. rule out the life threatening condition, and we know, a couple
  10. of days later, this child suffered that main burst in his head
  11. and died.
  12. Now, let's talk about Dr. Oakley, the defense
  13. witness. One thing he said was so important. It cuts right
  14. through everything in this case. If two weeks into this trial
  15. you don't remember anything but one thing, remember this. And
  16. it's a book that he had. He wrote the book. It's on his
  17. resume. Secondary Etiology. That's the secondary cause, the
  18. more life threatening causes -- requires urgent imaging.
  19. That's him. That's their expert saying this. It's
  20. not me saying it. Their expert says secondary etiology
  21. requires urgent imaging. That's exactly what should have
  22. happened in this case. It didn't happen. And that's their
  23. expert telling you this. You don't have to go any further than
  24. this to get to a verdict in this case. It's right here.
  25. Dr. Kuhn (phonetic sp.), the defense witness -- he's
  1. not a pediatric neurosurgeon. He's not a radiologist.
  2. Remember him? He doesn't know what causes a headache. Come
  3. on, now, that's why we're here. What caused this child's
  4. headache? And he didn't know whether he made $50,000 or
  5. $300,000. Does that make any sense to you? It doesn't make
  6. any sense.
  7. Dr. Nelson, defense witness. He's a pediatrician.
  8. He said something -- maybe it's strange, it's a little strange
  9. to me. He only asked to diagnose a sick child. Well, when you
  10. take the child to the pediatrician, you already know your child
  11. is sick. You don't need a doctor to tell you your child is
  12. sick. You need a doctor to tell you why your child is sick.
  13. He said no, we just determine whether they're sick and we send
  14. them out to somebody else. He has no experience with sentinel
  15. bleeds.
  16. He had never diagnosed a child with a small bleed
  17. that then turned into a rupture. Never had. And he never
  18. orders the imaging. He'll order a simple x-ray. But if it's a
  19. CT scan, now, he won't do that. I mean, he's a board certified
  20. pediatrician for years. Why doesn't he order CT scans? Does
  21. that make sense to you? You figure that out if it makes sense.
  22. He didn't read the hospital chart.
  23. He said, well, when you came in to see Ms. Longley on
  24. the 6th -- did he read the hospital chart from the 5th? Well,
  25. not really. Well, how do you know the symptoms are the same?
  1. Uh, uh -- can you refer me to the chart? No, I want you to
  2. know from your memory. You just told the members of the jury
  3. it's the same thing. Why did you tell them that if you didn't
  4. know. I need my chart. No you didn't. So you don't know?
  5. Dr. Sparrow -- defense witness. I'm not an expert.
  6. She's never seen this condition before. Never has. I'm not an
  7. expert. Why didn't you call me? You have to determine why
  8. they called her. She's not an expert in the issues that are
  9. involved in this case. "I get confused reading depositions."
  10. Well, you're a paid expert. Shouldn't you really be paying
  11. careful attention to what sworn testimony is of the doctors who
  12. you were coming in to this Court to support? Unaware that Dr.
  13. Mitchell gave false testimony. Nobody told her that Dr.
  14. Mitchell changed her testimony and gave false testimony. I'm
  15. not an expert. Okay, I believe you. I believe you're not an
  16. expert. We'll believe you.
  17. Dr. Bates. He is an expert ER pediatrician that Ms.
  18. White had. Dr. Valderrama breached the standard of care. Dr.
  19. Martin breached the standard of care. Dr. Mitchell breached
  20. the standard of care. And he also said that Physician
  21. Assistant Longley breached the standard of care. And the
  22. breaches are not doing the thorough history, not doing the
  23. complete evaluation, not considering ruling out the life
  24. threatening causes, and not getting this child to the CT scan
  25. right away. That's what this case boils down to. It's not
  1. hard to figure out what the breach of the standard of care was.
  2. Dr. Kelly, a pediatric neurologist -- he commented on
  3. Dr. Edelstein's care. Dr. Edelstein breached the standard of
  4. care. Failed to obtain informed consent. Informed consent is
  5. something that every doctor has to obtain from a patient.
  6. Informed consent means you inform the patient what's going on
  7. with their condition. You explain the treatment options. You
  8. give them the options. And you get their consent. She didn't
  9. tell the mom why she was ordering the CT. Didn't tell the mom
  10. the difference between waiting a week to see how the child does
  11. and getting the CT now.
  12. Dr. Edelstein implemented the same failed treatment
  13. plan that was implemented by Dr. Valderrama and Dr. Mitchell.
  14. Same failed treatment plan. The radiologist -- what would show
  15. up on a CT? Okay? A bleed can show up. And it did. An
  16. aneurism showed up. And the hole showed up. This is the hole
  17. from the initial bleed that clotted over. Remember, the
  18. initial bleed, it clots over, and then there's a big burst. He
  19. saw that. He is at Children's Hospital Pennsylvania. The
  20. defendant's radiologist -- what did the defendant's radiologist
  21. tell us about what the CT showed? This is a case about what
  22. can be shown on a CT and what can be seen on the CT. What did
  23. their expert radiologist say to you? They never called me.
  24. The key issue in this case is what can be seen upon
  25. the CT study. They never called the radiologist. Now, Dr.
  1. Kuhn says, I read these. Dr. Kuhn can't see an aneurism unless
  2. it's four times bigger than the one Jonathan had. Well, good,
  3. Doctor, then you don't have to be reading CTs. We'll let the
  4. board certified radiologists read that, because they can figure
  5. it out. I don't blame him that he can't see it. Because he's
  6. not trained like a board certified radiologist. We have no
  7. board certified radiologist in this case.
  8. Vasospasm. This a concept that may or may not be
  9. difficult to understand. It's how they time the bleed.
  10. Vasospasm is you have little sausage links that appear in the
  11. arteries. Dr. Buchanis (phonetic sp.) explained this. And you
  12. saw this video. It will be back there if you want. But
  13. basically it is those little sausage links. They look like
  14. sausage links. Remember, the tree goes from big branches to
  15. little. This artery went from big, little, big, little, big.
  16. Not supposed to do that.
  17. When it does that, you know there's been a prior
  18. bleed. And that's representing vasospasm. And here it is.
  19. You see this sausage link? And it goes to small. Big to
  20. small. All along here, big to small, big to small. It's
  21. segmented. And that's what we showed you. And he measured
  22. them, too. They go from big to small, big to small. I'm
  23. sorry, small to big. I got it backwards. But the measurements
  24. are there.
  25. Was the death preventable? This is an easy question.
  1. Answer it. You'll have to answer it, which is the cause, it's
  2. the proximate cause question that the judge says you'll have to
  3. answer. Was it preventable? It was. There's only two things
  4. you have to know. The time from the CT to a lifesaving
  5. treatment is 12 hours.
  6. That's all the time they needed to save this child's
  7. life. A CT anywhere from July 2nd all the way up through
  8. July 9th, because he had the hemorrhage on the 10th, any CT in
  9. that seven day window, 12 hours this child would not have died.
  10. Because doctors can save children's lives if they just do the
  11. right thing. That's what doctors are supposed to do.
  12. Dr. Bend, the pediatric neurosurgeon,
  13. remember, she said she took the national exams -- I think she
  14. scored number two and I think she said her husband scored
  15. number one. What do you know about her? She's a smart doctor.
  16. She treats these children. She operates on them. And she
  17. saves their lives.
  18. How long would she have needed to save this child's
  19. life? Time from the CT to life saving treatment, you only need
  20. 24 hours. If Dr. Edelstein had ordered that CT on the 8th, the
  21. operation would have been over at the end of the night. He
  22. wouldn't have died, because the hemorrhage wouldn't have burst.
  23. The aneurism would not have burst. He would not have died.
  24. And there was a timeline of events. You can see all
  25. the care this child had. Day after day after day after day.
  1. And not one of these doctors ordered a CT scan. Does that make
  2. any sense?
  3. A mother loss. Now we're coming to the reason we're
  4. here. We've spent all of this time on medicine. All of this
  5. time arguing who did what, who did what. Let's not forget the
  6. real reason why we're here. We're here because a mother
  7. suffered the loss of a child. And what does that mean? You've
  8. heard the phrase children are my life. You've heard parents
  9. say that over and over again. That's because it's true. And
  10. when you have a child whose life is so intertwined with the
  11. mother, when that child's life is taken through negligence, not
  12. only does the child die, a portion of the parent dies with the
  13. child.
  14. And how do you know how much this child meant to her?
  15. She saves his Halloween costumes. She saves his shoes. She
  16. saves the pencils that he took to school. And she has his
  17. ashes in her room. That means she can't let him go. Because
  18. if she lets him go, she'll be gone, too. And how do we know
  19. how much fun the mother and child had? Look at the pictures.
  20. This is a happy child. He had a loving mother and
  21. loving siblings. Birthday parties. Christmas. New Year's
  22. Eve. And then when you see the mom, you see the children.
  23. That's what tells you about how close his family was. Ice
  24. skating. There's a birthday party with a sombrero. This
  25. picture is more than anything that I can describe about the
  1. relationship between the mother and the son.
  2. And it's the last memory she has of her son. And for
  3. the next 46 years, which the judge told you that she has on
  4. this earth, I counted up the number of waking minutes. It's 16
  5. million. 16 million more minutes in her life she has to suffer
  6. through the grief.
  7. The burden of proof in this case. When the judge
  8. told you the plaintiff had the burden of proof, it's just by 51
  9. percent. That's it. If you go back in the jury room and you
  10. say, you know what? If you hear one of the jurors say, I'm
  11. not sure -- well folks, you don't have to be sure. The law
  12. doesn't require that you be sure. This isn't beyond a
  13. reasonable doubt. You can have some doubt.
  14. The law doesn't put that heavy burden of proof on a
  15. mother or a son in this case. It's just 51 percent. So if one
  16. of you say I'm not sure, remind each other what the judge says
  17. about the burden. It's only 51 percent. It's more sure than
  18. not, more right than wrong. That's it. 51 percent. That's
  19. all we have to do. That's a very low burden. But I think the
  20. evidence in this case is that we've proven it much higher than
  21. that.
  22. The verdict sheet. The judge is going to go over the
  23. verdict sheet with you shortly. There's like 10 or 15
  24. questions. There's a question for each of the doctors. There'
  25. a question for the physician's assistant. Did they breach the
  1. standard of care? Yes. Was that breach a cause of the injury?
  2. Yes. For the doctor and the physician's assistant for informed
  3. consent, did they fail to obtain informed consent? Yes. Was
  4. it a breach? Was it a cause of death?
  5. The evidence requires you to answer yes to every
  6. question. It's that simple. Jonathan White's last week
  7. on this earth. I can't ask you to step into a 12-year-old
  8. child's shoes, but you can appreciate the evidence. The worst
  9. week of his life was the last week of his life. Headaches,
  10. pain, can't sleep. One image is really vivid for me. When he
  11. saw Dr. Edelstein, he has his hands on his head. His eyes are
  12. closed. He's not moving his neck.
  13. What does that tell you about this child's suffering?
  14. It was immense. And can you imagine and appreciate what's
  15. going through the child's mind? He's asking his mom for help,
  16. like every child would. His mom is reaching out to the doctors
  17. for help, like every mom would do, and this mom did every
  18. single thing that every doctor ever asked her to. Everything.
  19. And they couldn't answer one simple question.
  20. And they saddle him and her with a quarter million
  21. dollar medical bill. This is the easy part. That's the easy
  22. party. You can fix this real quick. And for Jonathan
  23. Valladaras, for everything this child went through, the worst
  24. week of his entire life before his death, medical expenses are
  25. here. And now you understand at the beginning of the trial why
  1. my colleague, Ms. Zois, she's going to be asking for a
  2. substantial amount of money, now you understand why and the
  3. reasons why. That's why we're asking for that verdict sheet,
  4. that whatever the number is, $1 million and not a penny less
  5. because we place a high value on human life in our society.
  6. With respect to the mother, not a day goes by that
  7. she doesn't cry. It's not going to get any better. It's not.
  8. She can't get over this loss. She never will. We're going to
  9. ask for $4 million. Remember, it's 16 million minutes that she
  10. has to suffer through this. That's not even a dollar a minute.
  11. It's much less than that. Thank you very much.

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