The Trial, Part III

(I see that I may have created some confusion by doing this in episodes. As I said at the start, it may take several days/entries to get it all down. In the meantime, the consecutive parts are numbered in the hope of keeping things in order. Best to go by number rather than by day. Part III, where you are now, is the second entry for today, Thursday. Part II will appear, confusingly, below, and Part I below that. Sorry! However, as promised also at the start, I will stitch the whole thing together into a single narrative when I'm done, for anyone who would prefer the single shot. You will know, I promise, when the verdict is reached! So, anyway...)

Monday morning loomed, with the arrival of a new witness for the plaintiff’s attorney, a very lovely and well-spoken young woman who turned out to be a highly qualified radiologist with, again, an impressive resume. It was she who examined an MRI scan from December, 2006, and diagnosed a severe foraminal stenosis, a narrowing of the “window” in the vertebrae resulting in the pinching of the root nerve that passes through it. A further MRI scan from July, 2007, if I have it right, suggested a further deterioration of the condition. The witness had also, more recently, discovered another complicating factor in the form of a hairline crack—a "Pars Defect”—in the rear part of the bone, which had not been detected by the MRI, but which showed up in a CT scan, better for examining the “bony detail.” The operating surgeon, we learned, had not known about the existence of this defect, which would not have been visible from the angle of his approach. But it might have implications for future surgery.

The plaintiff’s attorney followed up this witness with a segment of a recorded deposition from a radiologist whom the defendant’s attorney would be calling on later in the trial. The video clip had clearly been chosen to show the man in a bad light, suggesting him to be cursory and disinterested in the subject of the MRI—as well as the money-hungry recipient of a million dollar a year retirement income from his forensic work and testimony. The doctor did, indeed, in this clip, come off rather badly, and the plaintiff's attorney made a big deal out of his failure to review the patient's medical records, relying solely instead on the evidence of the MRI films.

Having set this up, plaintiff’s attorney brought on the man who was to emerge quite clearly his star witness, the neurosurgeon mentioned earlier and identified as a close personal friend. Without a doubt, this new medical expert had impeccable professional credentials, and it was pretty soon clear that he had a rather poor opinion of those who did not share them. He was dismissive of orthopedic surgeons as essentially bone specialists, good for “fixing broken bones,” who lacked the knowledge and skills needed to properly treat or operate on a condition that involved “nerve behavior.” He made it clear that radiologists are support staff for surgeons, and that their opinions are valid only subject to review. He dismissed the epidural option out of hand. He was also unshakable in his conviction that the plaintiff’s injury was caused exclusively by the collision.

The attorney had this witness walk us through his client’s three surgeries in excruciating—and again, alas, endlessly repetitive—detail, and led him into an equally detailed explanation of the patient’s prognosis and needs for future care. His options were limited, the witness explained. The most promising seemed to involve further surgery to fuse the two vertebrae--a surgery made more complicated and risky by the earlier insertion of the artificial disk. He elaborated on the risks of two different approaches: the first, anterior, would involve some risks to other organs and blood vessels, approaching the spine from in front; the second, anterior, would involve other risks (don’t ask!); and either approach would more than likely incur future surgeries as the vertebrae higher up the spine took on increased stress and deteriorated more rapidly than they otherwise would.

With ample help from the attorney, the neurosurgeon then laid out a scenario of life-time treatment that the plaintiff would likely need. In addition to the continuing series of surgeries, this would include routine medical costs, diagnostic tests, home care facilities, physical, psychological and other forms of therapy, medical equipment and an infinite array of drugs. Each item was carefully inscribed on a large yellow flip-chart, along with the mounting sums of money needed to provide it. Nothing was omitted. The actuarily anticipated additional thirty-one years of life for this now forty-six year old back-pain sufferer were accounted for in every smallest aspect of his probable need.

It was on cross-examination that we learned that this particular neurosurgeon had seen the plaintiff only twice—for the first time in January, 2007, and the second time in March, just two months ago. We learned that the plaintiff had filled out pain rating forms indicating less pain impairment than we had been led to imagine. (These forms included a chart with an erroneous left-right identification on the schematic figure. Bizarrely, when questioned about the “mistake,” the doctor insisted it had been included purposely, to test the impairment of the patient’s cognitive skills.) We also learned that the plaintiff had made no further appointments with this neurosurgeon, and had continued with his visits to the one who had performed his original surgeries. The implication, as I heard it, was that the witness’s work with the patient had been exclusively in the service of the lawsuit. His manner on the witness stand we most often that of a lecturer, supremely confident of his own opinions and intolerant of others'.

At this point, as you can tell, I’m beginning to realize how hard it is to separate out my personal judgments from the evidence I’m presented with. This doctor came across as the epitome of the arrogant surgeon, god-like in power, who can do no wrong and make no mistake. Still, my Buddhist teachings encourage me to breathe, take a step back, and practice equanimity… As do the instructions from the judge.

Next up was the orthopedic surgeon who had actually seen, diagnosed, and treated the plaintiff, and had performed the three surgeries, none of them successful. For convenience, I called him “the tie guy,” because of the colorfully patterned ties he wore on each of his two days on the witness stand. In contrast to the neurosurgeon who preceded him, he seemed more modest in his approach, and his sense of what could be achieved. He agreed that his surgeries had not achieved the results he had hoped for, and readily conceded that the third—the disk replacement—was relatively untested, though FDA approved; and that he himself had not performed the operation either before or since. Under cross-examination, he confessed that he had not heard of the prior “slip-and-fall” event, nor had anyone from the testifying medical team of surgeons and radiologists informed him of the existence of a Pars Defect. His follow-up surgery, he agreed, would be a spinal fusion…

(Enough for this next episode. Time to take a break. Watch for another entry tomorrow…)