Week 37: Why You Should Never Screw Up During Surgery

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Published on: December 21, 2012

Odd Job: Serving on a “jury”

Pay: $150

This is a trial.

It’s not Jack Nicholson hollering at Tom Cruise that he can’t handle the truth. It’s not Joe Pesci asking about two utes. It is boring lawyers and uncomfortable chairs and court-provided free lunches that taste like legal pads.

“You have been brought in for what is called alternative mediation,” explained an old man with gray hair who paced back and forth in the middle of the room. The job offer had come from a market research company looking for jurors. They never told me what exactly I’d be doing, but I had heard of lawyers hiring people to watch simulations of upcoming trials so they could see how jurors might react to various testimonies and evidence, and had assumed that’s what this was. But as the man in the center of the room spoke, I started to doubt myself. The way he was talking, it didn’t sound like he was describing a simulation. It sounded like we were about to adjudicate a bona fide court case.

“The defendant, Dr. Taylor, is being charged in a malpractice suit,” he explained, “and you will be asked to determine if he was negligent in a surgical operation.” I looked around the room. Was this real? Were we actually going to determine someone’s fate today?

“Now people often ask, ‘is this real?’” The man said. Yes, let’s address that, I thought. “Or they ask, ‘is this binding?’ Well, let me put it this way: Is anything really binding? I mean, any case can be appealed, and it only becomes binding when it finally reaches the Supreme Court.”[1] He paused for a moment, then continued, “so, if there are no further questions, let’s get started.”

Wait, was that your answer? What just happened? What did we conclude? Is this real?

Then the man opened the door and let in two other old men with gray hair– the attorneys– and an even older man with no hair– the judge.

After some brief introductions, the judge began, “Your job is to determine if Dr. Taylor’s actions qualify as negligence. Now what is negligence? Negligence refers to a doctor not meeting the standard of care that would be provided by an average physician. Negligence is making mistakes the average doctor would not make. In a civil case, the prosecution does not have to convince you beyond a shadow of a doubt. They only have to convince you it is more likely than not that the defendant was negligent. Now there are two things I must tell you. One, under no circumstances are you to look things up on your smart phones about medicine or the law or the people in this room.” He repeated this every time we took a break, to the point where it became clear that jurors in 2012 look stuff up on their phones all the time. And if you’ve ever perused Yahoo! Answers, you know that this is a very dangerous development.[2] “Two, this is real life, not Law & Order. So don’t expect everything to work the way it does on TV.”[3] Then he motioned to the attorneys. “Counselors, you may begin.”

As though feeling the need to reemphasize the judge’s point that real trials are not as exciting as they are on TV, the prosecuting attorney launched into one of the most boring speeches I have ever heard. A 25-minute opening statement full of indecipherable medical terms and charts that in no way clarified his point.

The defense attorney practically had to be nudged awake when it was his turn to talk. If he had decided to pull a My Cousin Vinny, and just gone with an opening statement of “Everything that guy just said is bullshit,” he would have won over half the jury right there. He did not. He submitted an equally lengthy and confusing stream of babble, and by the time he was done, three jurors had hung themselves from boredom.

When we were subsequently dismissed for a 10-minute break, people fell over themselves climbing out of their chairs and evacuating the room. They stampeded to the coffee machine and started gunning down caffeine.

The case boiled down to this. Dr. Taylor’s patient had spent the last four years complaining about things like chest pains, vomiting, and dizziness while also developing lesions across her heart, causing Dr. Taylor to operate. The operation required Dr. Taylor to cut a chord whose name was quite possibly made up. I think it was the timing belt. But it may have been the crank shaft. Either way, it was definitely connected to the carburettor. The doctor cut the wrong chord, snipping the artium dextrum stroganoff. An important chord located where the timing belt should have been. The patient started hemorrhaging, a second doctor was called into the room, and the patient was patched back up. The longterm ramifications of this event on the patient’s life were never articulated. In fact, we never even met the patient.

The prosecution was arguing that a) the surgery should never have been performed, and b) Dr. Taylor should have been able to tell that what he thought was the timing belt looked different from how it should look, and therefore he should have conducted an on-the-spot test which could determine whether that was just an irregular timing belt or a different chord altogether. A test which would have revealed it was the stroganoff chord and therefore should not be cut. The defense was countering with “Nuh-uh!”

Taking the stand after break was the prosecution’s expert witness, who had apparently gone to the same charisma classes as the lawyers. Even she seemed bored with her testimony. She explained several key points: One, the patients’ symptoms did not mandate surgery. Two, the doctor was a fool to think that these lesions were cancerous. You may notice that the doctor never contended that they were. But if you think that’s going to stop a lawyer from implying that the defendant thought they were, then casting doubt on that diagnosis, then you’ve never met a lawyer.[4] And three, any doctor worth his stethoscope would have noted that that the timing belt didn’t look right, performed the additional exam, and thus realized it was the stroganoff chord. By the time she was done, we were all rather stunned that Dr. Taylor was even allowed to be left unsupervised when feeding himself, let alone perform open-heart surgery.

Then the defense attorney got up. “Is the prosecution paying you to be here today?” He asked.

“Yes,” she answered. “I am being paid to compensate for my time away from my office and the money I would be making there.”

“And how much are you being paid?”

“$700 an hour.”

And with that, you could see the thought “well fuck that testimony” flutter across every juror’s face.

Things took a turn for the entertaining when the attorney then went on the offensive. Methodically discrediting everything the doctor did or said, asking aggressive questions, then following up with condescending and accusatory lines like, “But you would never admit that because then it would mean your testimony was a lie. Isn’t that true, doctor?”[5]

It slowly became clear both that the doctor’s testimony was not bulletproof and that the defense lawyer was a douche.

Next up was Dr. Taylor himself. A frail, timid man who spoke as though any misstep could ruin his career.

“Can you please read from the testimony you gave in the deposition last month?” The prosecuting lawyer asked. He was almost as nasty and slightly more smug than the defense attorney.

Dr. Taylor read from the record that the lawyer handed him, reading both the plaintiff’s lines and his own. “Plaintiff: And when you saw it, how could you be certain that it was not the artium dextrum stroganoff? Dr. Taylor: It was too smooth. The artium dextrum stroganoff is coarse. Plaintiff: You’re sure? It’s not supposed to be smooth? Dr. Taylor: No, it’s coarse.”

Then the prosecuting lawyer interrupted Dr. Taylor. “And now you know that the stroganoff chord is actually what?” He asked.

“Smooth,” he conceded like a student who had been caught cheating on a test.

The lawyer’s lips curled up in a faint, unpleasant smirk. Gotcha.

Our final interview of the day was with Dr. Whitman. The defense’s expert witness there to tell us that Dr. Taylor did everything perfectly. The hemorrhaging patient on the operating table notwithstanding.

Dr. Whitman was the first person to appear in this trial with any real charisma. He spoke smoothly and articulately. He had a handsome face and soulful bedroom eyes that left you completely disarmed. I’m sorry, I got distracted, what were we talking about?

Oh yes, the testimony.

He assured us that if he had been in the defendant’s shoes, he would not have performed the secondary exam and would have cut the same chord Dr. Taylor did. It was a point the prosecution would challenge him on, asking roughly sixty different times, “So if it was you, you would have done exactly the same thing?” As the interrogation continued, Dr. Whitman started getting testy. Giving answers that started with phrases like, “Well, as I’ve already stated several times,” and, “I don’t know how else to phrase this,” while rolling his eyes and sighing heavily. You could see him mentally noting that $700-an-hour was not enough for this shit.

After a pair of fittingly dull closing statements, the old man with gray hair reappeared and told us it was time to deliberate.

We had before us Dr. Taylor who either did everything right or everything wrong, depending on who you asked. He had a patient with four years worth of symptoms and multiple lesions on her heart that either did or did not necessitate surgery. He cut a chord that he either should or shouldn’t have recognized as irregular. And it caused an unquantified amount of damage to a patient we never met. But other than that, it seemed like a pretty open-and-shut case.

We started by going around the room, taking turns giving our thoughts on the case. As people spoke, I stared at a giant mirror spanning the wall across from us. Who was watching us on the other side? What were they looking for? And hasn’t anyone come up with a more subtle system for spying on people than a two-way mirror?

“Dr. Taylor did everything he was supposed to.” Argued one woman. “He didn’t call for the additional test because all the evidence dictated that he didn’t need to.”

“This patient is going to be in pain for the rest of her life,” yelled another. “Because this doctor was incompetent! He should have ordered the second test!”

“I dunno man, it’s hard being a fuckin’ doctor. He’s just doing the best he can, ya know? I ain’t voting against him.” Said a blue collar guy who had clearly put a lot of thought into this.

“Well, I think we have to discuss what is the standard of care? I mean, this is Boston, with some of the best hospitals on the planet. So we have to compare this doctor to not just some random doctor, but to the crème-de-la-creme that is the surgeons we have at this specific hospital.” Yelled another woman who had taken it upon herself to completely redefine the term “average standard of care.”

We never did reach much of a resolution, but the old man with gray hair came back in and told us that would be okay. We just had to fill out some forms indicating the verdicts each of us would individually render and why we thought what we thought. After that, we would all receive $150 checks for our time and were free to go.

We did as we were told, then headed for the exits.

The first elevator down looked a little too full, so I waited for the next one. While I stood there, I saw a side door open and the prosecuting attorney walk out. We nodded at each other, then quietly hopped on the next elevator down.

“So am I allowed to ask you what that whole exercise was?” I said.

“They just want to see how jurors would react to various arguments, which side is more likely to win if this actually goes to trial. Should they try to settle before it does and save some money on legal fees?”

The doors opened and we headed through the lobby to the street. “I’m not really working on this case.” He said. “They just hired me for the simulation.” Then he turned down the street and disappeared into the darkness.

In hindsight, it was kind of like we were told at the beginning of the day. Our decisions weren’t really binding, but they did matter. After all, what happened on this day in this room could have resulted in one side surrendering or in their deciding to push on with newfound dedication.

And a patient suffering from a surgery gone bad either was or wasn’t going to be compensated. A surgeon either was or wasn’t going to be hit with a big penalty, one that could alter the course of his career and livelihood.

Either way, it was quite possible that what the 12 of us thought of a couple pretend lawyers making a pair of poorly articulated cases would dramatically impact two people’s lives.

I walked to an ATM across the street, deposited my check, then went on with my day as though nothing quite that important had just happened.

_____________

  1. [1] I can think of a few people on death row who might disagree, but go ahead.
  2. [2] For example, http://www.huffingtonpost.com/2012/09/07/stupid-yahoo-answers-dumb-bad-worst_n_1861634.html#slide=1476400 and http://www.huffingtonpost.com/2012/09/07/stupid-yahoo-answers-dumb-bad-worst_n_1861634.html#slide=1489728
  3. [3] This is one of those things that’s much easier to accept in the abstract than in reality. When he says something like that, you think, “Of course TV is different from real life. I know that.” Then the trial starts and you want to scream out things like, “Wait! Why is the prosecution asking questions before the defense on the defense’s witness? Why are opening statements more than two minutes?! What about the DNA evidence??!!!” While we’re on the subject of things that TV and movies have convinced us are real, I was shocked when I learned the following: 1) When you go to jail, you get more than one phone call. 2) Crawling through a ventilation shaft is borderline impossible. And 3) You don’t drown in quicksand. Sometimes the real world is disappointing.
  4. [4] How does a lawyer sleep? First he lies on his right side. Then he lies on the other. Ay-oh! Sorry. I couldn’t help myself. I love lawyer jokes. What do you call a lawyer with an IQ of 100? Your honor. What do you call a lawyer with an IQ of 50? Senator. Okay, I’ll stop.
  5. [5] Seriously, how are you supposed to answer that?

 

In some but not all articles, names or identifying characteristics or individual lines of dialogue have been changed to protect identities or because remembering exactly how things happened is hard. But in every case, an effort was made to maintain the integrity of these events that did indeed actually happen.

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