Sample Medical Malpractice Opening Statement Transcript

Below is an example of a medical malpractice opening statement given by Laura Zois in a brain aneurysm misdiagnosis case.

• Plaintiff’s closing statement in this case
• Plaintiff’s rebuttal closing statement in this case

1. OPENING STATEMENT BY LAURA G. ZOIS, ESQ.
2. May it please the Court, good afternoon. What brings
3. us here today to this Baltimore County Circuit courthouse is
4. the law. And it’s the law that protects patients. But only if
5. juries choose to enforce the law. And what you’ve heard from
6. the judge and probably in your own personal experiences is a
7. couple of terms. You’ve heard medical malpractice, you’ve
8. heard medical negligence. And you’re going to be hearing a
9. term, standard of care, a lot, throughout the course of the
10. trial.
11. And basically those three things all mean the same
12. thing, which is patients have the right to count on their
13. healthcare providers to act reasonably competent. So medical
14. negligence, medical malpractice, and standard of care all mean
15. that patients have the right to assume that their health care
16. providers are going to act reasonably competently. One of the
17. other laws in this case that’s important — and I bring it up
18. at the beginning, because this is a civil case. It’s not a
19. criminal case. And a lot of times, people are familiar with
20. the term beyond a reasonable doubt.
21. So in criminal cases, beyond a reasonable doubt is
22. the standard that they have to apply. But this isn’t a
23. criminal case. No one is going to jail. No one is doing time.

1. No one is being punished. This is a civil case. And the
2. burden is much different than it is in a criminal case. In a
3. civil case, the burden of proof is a little bit more right than
4. wrong. It’s 51 percent to 49 percent. You’re allowed to have
5. doubts. In fact, you can have 49 percent doubt.
6. So an illustration I could give you is if these two
7. equal — these two piles of paper are equal, if I take one
8. sheet of paper and put it over to the other side, we’ve met our
9. burden of proof. And the plaintiff has the burden of proof in
10. this case. We have to convince you that we are a little bit
11. more right than wrong.
12. Now at the end of the case, I’m confident that we’re
13. going to blow that out of the water. It’s not going to be 51
14. to 49. We’re going to do much more than that. But remember as
15. you’re listening to the facts and listening to the testimony
16. and weighing everything, our burden is a little bit more right
17. than wrong.
18. Now, let me tell you a little bit about the story of
19. what happened in this case. International Pediatrics — it is
20. a local pediatric office. They have an office up in
21. Gaithersburg, and they have another office down in Kensington.
22. Back in 2017, they serviced between 9,000 and 10,000 local
23. patients. They were staffed by three doctors and three other
24. health care providers that were not doctors.
25. Shady Grove Hospital, right across the street from

1. International Pediatrics in Gaithersburg. Shady Grove Hospital
2. actually has a special pediatric emergency room. So it’s an
3. emergency room that’s there just to treat children. Shady
4. Grove’s Emergency Room, though, is staffed by a company called
5. MEP, LLC. So MEP, LLC is responsible for selecting and hiring
6. and staffing the doctors that are at Shady Grove emergency room
7. and pediatric unit. The pediatric unit has 16 beds. Three of
8. those beds are in one room.
9. Right down the hall from the pediatric unit is the
10. radiology department for the whole hospital. And in that
11. radiology department is the ability to do CT scans. CT scans
12. is a diagnostic study that’s done to look at the imaging of a
13. person’s head. It can be done very quickly. Some people say
14. in less than a couple of minutes. It’s not invasive, and the
15. results can be read immediately after performing the CT scan.
16. Now, let me tell you the story of what happened in
17. this case. November of 2015, a young boy goes into his
18. pediatrician’s office. And he’s had a complaint of headaches.
19. He’s examined by the physician’s assistant and he has pain in
20. his head, sort of all over, and he also has pain right here
21. above his nasal sinuses. He’s diagnosed with sinusitis. He’s
22. given antibiotics and he’s sent home.
23. The same boy comes back to International Pediatrics
24. on July 2, 2017. This time, the headaches are different.
25. This time, he’s had a severe headache which started on March

1. 31st. That was day one. It continued into July 1st. That was
2. day two. We’re on day three of his headaches. And the
3. headaches got so severe that he started throwing up. So his
4. mom became very concerned and she took him to International
5. Pediatrics and he was evaluated by a nurse practitioner. And
6. the nurse practitioner noticed and recognized that he did not
7. look well. To her, he looked very ill. And she knew that he
8. had severe pain in his head. She knew that he had severe pain
9. in his neck. She knew that he had been vomiting. She knew
10. that he was nauseas. And she knew that he was dizzy.
11. She also knew, because she could look at the chart
12. from December, that this is not like what was going on back in
13. December. And so she told mom, you need to go across the
14. street to the emergency room. I’m going to call them right now
15. and tell them that you’re on the way. And she did that. So
16. the nurse practitioner called across the street to the
17. emergency room and told the emergency room the information that
18. she had, which was this is a child with a severe headache. He
19. has severe neck pain. He’s been vomiting. He doesn’t look
20. well. He appears very ill.
21. She also told mom, I’m sending you across the street
22. because I want to rule out any more serious illnesses. Mom
23. follows the orders and she goes across the street, and her son
24. is seen by a third year resident in the emergency room. The
25. third year resident is a doctor. But the third year resident

1. has a supervising attending doctor, who is also there.
2. So the third year resident has all the same
3. information that the nurse practitioner had. The resident
4. examines the child and takes a history and confuses the
5. history. She writes down two different things in her record.
6. On one part of her report, she says no prior episodes of
7. headache. And in another part of her report, she writes
8. chronic headache most likely due to migraines.
9. She doesn’t order a CT scan. She doesn’t consult
10. with her supervising attending doctor on whether or not they
11. should get a CT scan. She gives the child Toradol, which is a
12. pain medication. And the child’s headache starts to go away,
13. and the child is discharged.
14. Two hours after the child is discharged, the pain
15. comes back. And upon discharge, the resident told mom, you
16. need to call your pediatrician tomorrow. Try some ibuprofen.
17. Mom tries some ibuprofen and mom does exactly what she’s told
18. to do, and calls the pediatrician’s office the next day. We’re
19. now on day four of the child’s severe and constant headaches.
20. Mom calls the pediatrician’s office in the morning and talks to
21. a receptionist and says I did exactly what you told me to do.
22. I took my child to the emergency room.
23. They gave him some pain medication, but it wore off.
24. I’ve been giving him ibuprofen. It’s not working. I’d like
25. for you to call him in something stronger. Nobody calls her

1. back. She calls again. This time she has to leave a voice
2. mail on the after hours service. And she repeats the same
3. information. I did what you told me to do. I gave him
4. ibuprofen and it’s not working. I’d like a stronger
5. medication. And she also mentioned, by the way, the doctors at
6. the hospital diagnosed him with migraines.
7. Later on that evening, a physician’s assistant from
8. International Pediatrics does call mom back. Mom repeats the
9. information again for the third time. The physician’s
10. assistant understands that mom took her child to the hospital.
11. The ibuprofen is not working. The Toradol wore off, and he’s
12. been diagnosed with migraines. So the physician’s assistant
13. says call us back tomorrow morning and we’ll talk about a plan.
14. Again, now we’re on day five of the child’s severe symptoms.
15. Day five. Mom again does as she’s instructed and
16. calls and talks to the physician’s assistant. And the
17. physician’s assistant says — and by the way, the office is
18. open on this day. The physician’s assistant says I’m going to
19. call in acetaminophen for you. Maybe that will work. And she
20. does do that. Acetaminophen is essentially Tylenol. And then
21. she says, well, why don’t you make an appointment with me the
22. following Monday, which would be day seven. But in the
23. meantime, if anything gets worse, bounce him back to the
24. emergency room. Take him back to the emergency room.
25. So mom gets the prescription filled for the

1. acetaminophen, begins to give the child acetaminophen, and it’s
2. not working. And he’s getting worse. So she follows the
3. doctor’s instructions and takes the child back to the emergency
4. room, the same emergency room where he had been three days
5. earlier. And while in the emergency room, now going on day six
6. of his severe headache, all of the same problems are
7. continuing, except now, the child can’t sleep. So he’s been
8. getting ibuprofen. He’s been getting Tylenol. He’s having
9. severe headaches.
10. And the headaches are in the back of his head, which
11. is called the occipital region, and that’s important, and
12. you’ll understand why in a bit. He has neck pain and has had
13. neck pain. He’s seen by Dr. Mitchell, a doctor in the
14. emergency room. And the doctor is able to go back and look at
15. some of the notes, but not all of the notes from the first
16. visit. And she knows that the Toradol wore off two hours after
17. it was given that first time.
18. So Toradol given here wears off. She knows this
19. piece of information. But she prescribes Toradol, decides not
20. to order a CT scan, doesn’t sent him right down the hall to get
21. an imaging of his head. She decides not to admit him into the
22. emergency room so that he can get a neurological consult by a
23. neurologist. But tells mom, you should probably find a
24. neurologist. And I’m not going to do a CT just yet. I’m going
25. to give you this Toradol, and he’ll feel better. But follow up

1. with your pediatrician and a neurologist. And she discharges
2. mom and her 12-year-old son.
3. So the next day, mom as instructed follows up with
4. the physician’s assistant for the appointment they had already
5. made back here, and all the same things. Severe headache, neck
6. pain, over the counter medications aren’t working. And the
7. physician’s assistant, in one of her differential diagnoses, in
8. one of the things that she thinks might be happening here, she
9. considers the possibility that he has a brain aneurism.
10. She does not send the child back to the emergency
11. room for an urgent CT scan. She does not call her supervising
12. doctor. This is a physician’s assistant we’re talking about.
13. She doesn’t call the doctor at International Pediatrics. What
14. she does is she tells mom you need to follow up with a
15. neurologist, and if you can’t get in to see one within the
16. week, give us a call back. Continue the over the counter
17. medications and let us know how this all works out.
18. So the next day, day eight, the child’s severe
19. headache, neck pain, nausea, inability to sleep, all of this is
20. continuing in this 12-year-old boy. The next day, mom is able
21. to get an appointment with a neurologist. And she takes her
22. son to the neurologist on day nine. This is day nine of this
23. child’s severe head pain. And the neurologist, in her note,
24. when she’s talking about what happened here, writes sudden
25. onset of a severe headache with pain in the back of his head

1. without any clear reason why.
2. She’s aware of two emergency room visits. She’s
3. aware over the counter pain medication is not working. She’s
4. aware of the pediatrician visits. She’s aware that no CT
5. imaging has been done. So her plan — she’s aware that he has
6. pain in the back of his head. She’s aware that he has pain in
7. his neck.
8. I forgot to mention something important. On day
9. seven, he develops another new symptom, which is photophobia,
10. which is sensitivity to light. I forgot to mention that.
11. So the neurologist, with this 12-year-old boy in her
12. care, who has been in constant and severe pain with a whole
13. host of life threatening symptoms, frankly, on day eight, says
14. to mom, all right, look, I know you’ve been trying over the
15. counter medication like ibuprofen and Tylenol. But I want you
16. to do it my way. I have a special way of prescribing over the
17. counter medication of Tylenol and ibuprofen.
18. In a few days, if that doesn’t work, I’ll order
19. imaging on his head. And she actually hands mom a CT order for
20. imaging of his head. But doesn’t tell her why. She doesn’t
21. tell her that the reason she’s giving her the CT order is
22. because she suspects that the child may have a brain tumor.
23. But she withholds this information from the mother. And the
24. reason she withholds this information from the mother, her
25. explanation is she didn’t want her to panic and run across the

1. street and get the CT scan within the hour.
2. Mom does exactly what the doctors have told her to do
3. again. And she tries the combination of the ibuprofen and the
4. Tylenol. To no surprise, this isn’t working, and doesn’t work,
5. and hasn’t worked for ten days. Day 11. In the morning, on
6. Day 11, the child collapses to the floor. He urinates himself.
7. He’s foaming at the mouth. He’s unresponsive. He stops
8. breathing.
9. The family calls 9-1-1. The EMS team gets there and
10. they have to intubate him. On the way from the Valladaras home
11. to Children’s National Hospital, he’s turning blue. And what
12. ends up happening, as soon as he gets to Children’s Hospital,
13. they do a CT scan of his head. It’s one of the first things
14. they do. The CT scan shows that he has had a ruptured aneurism
15. in the back of his head.
16. So if you remember one thing, remember this. When in
17. doubt, doctors have to rule out life threatening symptoms.
18. Now, let me tell you who we’re suing and why. But first, let
19. me tell you a little bit about Emily Davis and her son,
20. Mark Valladaras. Emily Davis is from Brooklyn. Brooklyn in
21. New York, not outside of Baltimore. And in July of 2017,
22. Mark was 12. She had a 15-year-old son, Asher, and
23. a 12-year-old d
    aughter, Taylor. And very recently before
24. this tragedy, Mark’s father was killed in a car crash, in
25. November of 2016.

1. And I’m bringing that up for a reason, because one of
2. the things that I think you’re going to be hearing about in
3. this case from the Defense is that Mark had some behavioral
4. issues. And that’s why he was having these headaches, and
5. that’s why none of the doctors were looking into this any
6. further, because he had behavioral issues.
7. Mark did have a bit of a rough road. He had an
8. IEP when he was little. He was in a school for behavioral
9. issues. But that’s not an excuse for failing to do a CT scan
10. on a child that has life threatening symptoms. So we’re
11. bringing a claim against the doctors that are in the line that
12. could have prevented this death by simply ordering a timely CT
13. scan that would have taken less than 15 minutes and would have
14. shown a brain bleed in his head. That could have been
15. corrected. Mark’s life could have been saved.
16. So we’re bringing claims against not the nurse that
17. sent him to the emergency room. That was the right call.
18. We’re bringing claims against the resident doctor for
19. misdiagnosing him with chronic migraines — which is a label
20. that bled throughout the rest of the medical records. We’re
21. bringing a claim against the supervisor of that resident for
22. not figuring out that that resident got the diagnosis wrong.
23. Because ER doctors don’t diagnose migraines. They’re not
24. comfortable doing it. And both the defendants that are ER
25. doctors in this case will tell you that.

1. We’re bringing a claim against the second ER doctor
2. for repeating the same thing that didn’t work the first time.
3. And not recognizing and taking seriously the life threatening
4. symptoms that this child had — failing to order the CT scan,
5. giving medication she knows is going to wear off, not getting a
6. neurological consult, and discharging mom back home to repeat
7. the cycle that she’s already repeated, which isn’t working.
8. And the neurologist.
9. The neurologist is a specialist in this field. And
10. she has before her a child that has had constant and severe
11. symptoms that are life-threatening, and she sees the child on
12. day nine. And she does not disclose to mom what her concerns
13. are. Yet she hands her a CT scan order and says, I think he
14. has this condition called status post-migrainosis. Status
15. post-migrainosis means migraines for longer than 72 hours.
16. Well, the child had constant head, neck pain, and headaches for
17. 72 hours as of this day. He’s already at 72 hours here.
18. I lost my clicker. There we go. So we’re also
19. bringing a claim on behalf of Mark. Mark has a claim.
20. He has an estate claim. Mark’s estate claim includes the
21. three days that he was in ICU at Children’s Hospital, and for
22. three days at Children’s National Medical Center. Because of
23. this preventable error and preventable death, it’s $256,661.02.
24. Mark also has a claim for the pain and suffering he endured
25. up until the morning he collapsed on his bathroom floor and was

1. rendered unconscious.
2. We are bringing a claim against all of the doctors in
3. this chain because they all failed to get an accurate history,
4. they failed to rule out life threatening symptoms. They failed
5. to order a simple CT scan and they failed to get an accurate
6. diagnosis. Nobody bothered to ever check what was causing his
7. symptoms. Nobody did a test to say what is causing the
8. problems that he’s having? They medicated him and they pushed
9. him down the road.
10. And this is a list of the collection of all of the
11. life threatening symptoms that he had over the course of nine
12. days, but nobody bothered to order a simple test to rule out
13. the more serious and life-threatening causes.
14. The CT scan. We talked about it a little bit
15. already. Quick. Simple. Get it done in a day at the most.
16. It takes a couple of minutes to read. And it would have shown
17. the bleed on his brain that started back on March 31st.
18. So I want to talk to you a minute about the anatomy.
19. It’s actually not that complicated. This case is going to take
20. two weeks to try. But the medicine really isn’t all that
21. complex. So essentially what happened is this is a picture of
22. the back of our head. And in the back of our head, there’s
23. this circle. It’s called the circle of Willis. And it’s a
24. collection of arteries. And in Mark’s case, he developed
25. an aneurism right at the top of that circle.

1. See where that little bridge goes over? That’s where
2. his aneurism developed. And it’s also right in the back of his
3. head towards the base of his neck. And what happened is this
4. aneurism started to bleed. Which started to cause all the
5. symptoms, which caused the neck pain, caused the vomiting,
6. caused the dizziness. And you can see what happened after —
7. now, this is after it ruptured. But this is a CT scan that was
8. done by Children’s. And you can see where the aneurism has
9. ruptured. But also on here which I’m not sure whether I’m
10. going to be able to point to it or not — there is a condition
11. called vasospasm.
12. And there’s going to be a lot of discussion about
13. vasospasm. And what vasospasm is, it’s the appearance of how
14. arteries look after there’s been a bleed. And it only happens
15. after there’s been a bleed. And that’s how we know that this
16. bleed began earlier in time. Because it’s something that only
17. shows up after the bleed has already happened.
18. And if you look at sort of — on the left hand side
19. where you can see the white — that’s vasospasm. But I’ll let
20. the doctors explain that. They’re much better at that.
21. And you can sort of see the arteries on the exterior
22. and the way those arteries look — they’re kind of like sausage
23. links. That’s vasospasm. So the appearance of the arteries
24. when they look segmented like that — you’re going to hear that
25. term segmented — that’s evidence of vasospasm.

1. Before bringing this case to you, we had some
2. questions that we had to answer. And the first question that
3. we had to answer is what would a reasonable healthcare provider
4. do with this situation, when faced with all these life
5. threatening symptoms? And I think the answer is obvious. They
6. do a CT scan.
7. The second question is, well, if the CT scan was done
8. back here on day two, day three, day nine, what would it have
9. shown? And as we just went through the anatomy, what it would
10. have shown is the bleed. It would have shown the bleed was
11. present in the back of his head. So once you get the CT scan,
12. you see the bleed, what do you do next? Well, the next step —
13. there’s two different ways to fix this. There’s a procedure
14. called clipping and there’s a procedure called coiling. And
15. I’m going to hope this plays.
16. So the one on the left is a coiling procedure, and
17. the one on the right is a clipping procedure. You’ll hear from
18. our interventional diagnostic radiologist that he does these
19. coiling procedures, and he’s going to explain to you how that’s
20. done and how that works. And you’re also going to hear from
21. our neurosurgeon, who is going to come in and explain to you
22. how the clipping procedure works.
23. But suffic
    e it to say, either one of these were an
24. option. If someone had caught it in time, he would have been
25. in surgery, he would have had one of these two surgeries, and

1. he’d be here today.
2. So one of the last questions we had was how did it
3. get so far off the rails with his diagnosis initially with the
4. resident? How did we get to chronic migraines? And our
5. experts will tell you that most emergency room doctors won’t
6. diagnose migraines in the emergency room because they’re not
7. neurologists. So they’re not comfortable making that
8. diagnosis. In fact, the second emergency room doctor wouldn’t
9. make that diagnosis.
10. Her diagnosis was “unspecified headache.” So she
11. didn’t make that diagnosis. She was not comfortable with it.
12. So we’re not really sure how the resident in one part of her
13. note wrote no prior episodes and then in another part of her
14. note wrote chronic headaches, most likely migraine. So we had
15. to go back and look at all medical records that were available
16. for Mark to see whether or not he actually had chronic
17. headaches. And what you’ll learn is in order to be diagnosed
18. with chronic headaches, you have to have 15 headaches a month
19. for three months. That is a lot of headaches. That’s 45
20. headaches in three months.
21. So what we did was we went and looked at all of
22. Mark’s prior medical records that were available. And we
23. made a chart and the green on the chart are all the times that
24. Emily took him in to see the pediatrician or any other place
25. he was seen for treatment for something other than headaches.

1. So the green is just when he went in for other stuff, but the
2. red is when he was complaining of headaches.
3. So for example, in 2013, there were no headaches. In
4. 2014, there were three headaches. And this one was the
5. sinusitis that I talked about early on in the opening. There
6. was no headaches in January of 2017 documented. He was seen by
7. a health care provider in February, but they recorded no
8. headaches.
9. And in March of 2017, we know that he started a
10. headache on June 31st, but here’s the collection of documented
11. medical headaches. Because remember, there was a day mom was
12. home making phone calls and a day that she was calling
13. International Pediatrics. So we’re not sure how the resident
14. came up with chronic headaches and migraines.
15. But we believe the evidence will show he did not have
16. that, but yet that label carried over into the rest of his
17. medical chart.
18. Emily Davis and her three children at the time were
19. a very, very close family. The siblings were incredibly close.
20. And Emily is not going to ever have an opportunity to take
21. Mark and his two sisters to Baltimore again. And that’s
22. what this case is about. We’re going to spend two weeks
23. hearing about standard of care and vasospasms and circle of
24. Willis and aneurisms and coiling and clipping. But we are here
25. to get justice for Mark and for compensation of Emily

1. Davis, for the wrongful death of her son, that was
2. preventable, because she’s never going to take her kids to
3. Baltimore again.
4. She’s never going to celebrate Mark’s birthday
5. with him. And it was a big deal for Mark. You’re going to
6. hear — Mark’s birthday is actually in September. But he
7. loved to celebrate his birthday in October, because he always
8. wanted all of his friends to come over in their Halloween
9. costumes. And his mom already decorated the house for him on
10. his birthday. And Halloween was one of his favorite holidays.
11. She’s never going to sit under the Christmas tree opening
12. presents with her three children ever again.
13. She’s never going to celebrate another New Year’s Eve
14. with her three children ever again. She’s never going to watch
15. Mark stumble around on his ice skates out in Rockville
16. Towne Center ever again. She’s going to have to every year on
17. his birthday, on Halloween, every holiday, and really every
18. single day for the rest of her life — is going to miss and
19. grieve for her 12-year-old boy. And she’s never going to know
20. and never going to be able to sing happy birthday to him again
21. or know what he’s wishing for as a 12-year-old boy.
22. Lady Justice is blind for a reason, because in a
23. courtroom, a housekeeper, a corporation, and doctor, and a 12-
24. year-old boy are all equal under the law. And I believe at the
25. end of this case, you’re going to understand why in this case

1. we are asking for fair compensation in the amount of $5
2. million. Thank you.
3. (End of requested portion of proceedings.)

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