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The Jury, Episode 5: The cruel video deposition - Elf M. Sternberg
The Jury, Episode 5: The cruel video deposition
This morning, the plaintiff's case rests. It's the defense's turn.

Supposedly, this will be the last session of testimony. It's a deposition, 75 minutes long, on the video screen. They've finally caught up with the state of the art: the video was shot in digital and produced on DVD, unlike the last pre-trial deposition I watched in 1997. The background is a light-colored chiaroscuro wash of greys, and a lone man in his mid-60s, obviously familiar with the deposition process, looks out from the screen with a bored eye.

The judge instructs us to treat this testimony as if it were coming from a live witness, to have the same open mind about the content of the testimony, and to maintain the same level of iquiry and skepticism we've had about all other witnesses. It is testimony, not evidence; we will not be allowed to take the DVD into the deliberation room.

I've been going to the courtroom in stocking feet, shoes off. Cool feet help me stay awake and think, plus it's on the advice of my physical therapist to do so. I have long legs and a tendency to kick the chair in front of me, and this helps me avoid that. I also cross my legs to the opposite of the guy to my left, so my foot and his shoe have a few Larry Craig moments.

The testimony comes from a Doctor McC. Since he's part of the defenses's rebuttal, Mr. Koenig goes first. He starts by listing off Doc McC's credential. He's a Doc of Orthopedic Surgery, now retired, although he still has an office and still sees patients once or twice a week, patients who would rather not go elsewhere for their care.

Koenig leads Doc McC through a series of questions to establish whether or not Doc L's treatment was reasonable. Doc McC doesn't think so. He's a bit of an absolutist, saying that all young people (and Miss T was 24 when the accident happened) heal fast and she should have been fine four to eight weeks after the accident. He keeps repeating this, that he can generalize that all patients should recover and there's no reason that Miss T's injuries would have persisted so long. He doesn't believe in soft tissue damage as a delibitating condition. He talks a lot about sclerotherapy being something he's never heard of. "The injection treatments that he used... I don't know any orthopedist who uses it... It's just foreign... It's just not done in our discipline."

Landry does a good job of taking Doc McC's position apart. First, he evicerates Doc McC by pointing out that Doc McC is an Independent Medical Examiner, a man who contracts out his medical expertise in retirement to defense attorneys for injury claims, although he claims he's only going to give an "independent, unbiased opinion." He gets $1000 per assessment, and he does four to eight of these a week, and he only does them two, maybe two and a half days each week, and he spends only two hours on each case, reviewing the documents and assessing the patient. Nice work if you can get it. Landry succeeds nicely in painting Doc McC as a hired gun who, by dint of his firm opinions, keeps getting rehired as an expert witness in these cases. Wonder what he gets extra for doing the deposition?

Doc McC agrees that osteopathic medicine may be different from orthopedic medicine, and that there may be courses of treatment osteopaths use that are unfamiliar to orthopedics, but then reiterates that he's never even heard of this therapy and says that as a doctor, if he wanted to give his patients the best possible care, he would have read up on and remembered every modality that contributes to a patient's recovery. Snap!

Landry gets Doc McC to give up more ground when he points out that Doc McC is listed as a physician at a local hospital with an internationally recognized pain treatment center. Surely he's aware of what they do. He blusters for a while, and says that some patients may have long-term pain, but the Pain Center doesn't take in all patients. There are those it turns away because the center can't help them, he says. He says he does that in his own practice. It's a kind of tough love, he says, to sometimes just kick the patient out into the world, to tell them that they just need to stand up and take care of themselves, and that he's not going to enable their complaining any longer. "I know plenty of other physicians who do that."

Koenig gets another turn and walks Doc McC back to the point he wants to make: the kind of damage Miss T experienced should not have lingered for more than two years, much less six. There might be something wrong with her, he doesn't know, but she has full range of motion, even according to Doc L's own charts, but the treatments after two years were excessive and not called for by any standard course of therapy.

I write "BS" in my notes a number of times next to things he says, about how all people heal the same way, or about how young people especially are all resilient and will heal soon enough, or how all the nerves in a part of her body would have to be occluded to create the kind of numbness and paralysis she describes the day of the accident.

Symptoms he says can't be found in the emergency room report. I make a note to read that report.

Doc McC makes a big deal about the difference between subjective and objective reports. Objective is things like range of motion and things you can see on a chart; subjective is the patient's report of pain. He doesn't put much stake in subjective reporting if it doesn't match his experience of objective improvement. Repeats his tough love mantra. Makes a point that it was unusual after six years for Doc L to not seek outside assessment of Miss T's condition and course of treatment.

Landy asks again about the pain clinic. "The pain clinic exists, but that doesn't validate the notion that some people shouldn't just learn to deal with their pain."

The tape ends.

I managed to stay awake for all of it, but one juror, the guy to my right, apparently found it dull and fell asleep several times during the video and I or the guy to his right kept having to nudge him awake.

I didn't think it was dull. I had other feelings. Those feelings will be revealed later.

Current Mood: tired tired
Current Music: Porcupine Tree, What Happens Now

4 comments or Leave a comment
urox From: urox Date: May 27th, 2008 03:33 pm (UTC) (Link)
"Symptoms he says can't be found in the emergency room report."

Having been in a rather severe car accident, I can say that I didn't feel any symptoms for two nights and wouldn't have shown anything on the ER report. The third night when I woke up, however, I suddenly had little to no range of motion in my neck.
pixel39 From: pixel39 Date: May 27th, 2008 04:52 pm (UTC) (Link)

I really loathe medical "professionals" like that. The "the pain is all in your head" sort of people.
shunra From: shunra Date: May 27th, 2008 05:04 pm (UTC) (Link)
Gosh, I sure wouldn't want that doctor anywhere around me when I was giving birth... what an attitude. (Subjective reporting about labor pains correlates only somewhat to any objective measures. The pain is, however, quite real.)

Good thing he stuck to orthopedics.
From: starbog Date: May 27th, 2008 10:38 pm (UTC) (Link)
Hmmm....I was leaning towards the Defense so far, but that witness was distinctly unimpressive.
4 comments or Leave a comment