Face the Jury” is a podcast dedicated to all issues involving medical malpractice – what it is, how to spot it and how to prevent it while protecting yourself and your family. 

Today we continue our conversation with the GOAT of medical malpractice, Pat Malone. Pat is a leading patient safety advocate and has won just about every award in the industry for his work. He’s an accomplished author, fellow Inner Circle member, and has a long record of exceptional verdicts and settlements on behalf of his clients.

Lloyd: Now, I’d like you to share with us, if you can, your most despairing loss. I don’t mean to cause you emotional distress, but you know we learn more from our losses.


Patrick: The one I’m thinking of is not necessarily the worst, but it was bad. It was in Roanoke, Va., where we had a case for a woman who had neck fusion surgery. She woke up unable to use one side of her body, and within the next few days, the opposite side of her body had limited hot and cold sensation, which she learned by taking her first shower after surgery. This combination of motor loss on one side and sensory loss on the opposite side is a classic neurosurgical syndrome. Her neurosurgeon never investigated to see if something was impinging her spinal cord post-op.


When we went to trial, they ultimately did an MRI scan after a neurologist – not a surgeon – learned about this weird pattern of sensory loss on one side and motor loss on the other. They found an impingement due to gel foam inserted to stop the bleeding, which put pressure on the back of the spinal cord. It was already reabsorbing, and it was too late to do anything about it.


The defense brought up their neurosurgeon, who admitted that the surgeon who was at fault should have done the MRI scan within 24 hours. But he had an excuse that went in a different direction, claiming it was a spinal cord stroke, which is their favorite excuse because it’s not provable.


The jury returned within two hours, and I thought, “Oh boy, this will be a good plaintiff’s verdict,” but no – it was a defense verdict. We were stunned, and I couldn’t bring myself to talk to jurors afterwards. It turns out they were just not an empathetic bunch of people. A couple of them criticized my client for spending so much time in the community and not being at home for her husband.


Ultimately, I had to resign myself to having a jury that didn’t listen carefully.


Lloyd: You’ve been a long-time member of the inner circle of advocates, which is where you and I met. Although I had read all your books, including “Rules of the Road a Plaintiffs Lawyers Guide to Proving Liability.”


Tell me how you and Rick developed the book’s concept and why you think it is important, particularly for new, younger trial lawyers.


Patrick: I have to give Rick 100% of the credit for coming up with the idea. He invented the whole concept of rules of the road, and he wrote an initial manuscript of the first book. I remember talking at one of my first Inner Circle meetings about legal writing and trying to have a straightforward, non-lawyer style in your writing. He came up to me afterward and asked me to look at this manuscript and see if I could help him with it, and I looked at it and said sure.


I thought it was great and contributed to expanding into the world of just general personal injury medical negligence, pushing the boundaries. The concept was all his.


Lloyd: Tell us about the concept.


Patrick: The concept is that you try to find common ground where you can force the defendant to agree with something and then prove that’s important. Then prove that the defendant violated that. A good rule of the road for a medical malpractice case might be a doctor has a duty to tell the patient the risks and benefits of the surgery.


The kicker was the rule not only has to be inarguable, but it must be clear to the jury. A rule that’s only inarguable is not a persuasive rule because it’s ambiguous, and people don’t understand it. A rule that is clear and inarguable is a powerful rule.


The new version of informed consent is a doctor must tell the patient the important facts about the surgery so that the patient can make an intelligent decision. That’s actually the legal rule in most jurisdictions now.


Some of your listeners will be in states that have a doctor-centered rule versus a patient-centered rule. A patient-centered rule is the doctor has to tell the patient the facts that a reasonable person would find important, which doesn’t require an expert. A doctor-centered rule is that a doctor has a duty to tell the patient the facts that other doctors customarily would tell the patient, which requires an expert.


The one chosen by the defendant under the circumstances of this case was a riskier case, but in a state with a doctor-centered rule, it would be their defense. We don’t tell patients the doctor made a riskier choice because we want them to remain calm.


I have always thought there’s a hidden informed consent case in many medical cases. Often lawyers don’t think about developing the informed consent angle on their case. In a close case, it can be a tiebreaker.


We had a reported decision in Maryland in a birth injury case where the plaintiff ultimately recovered many millions of dollars because of having an informed consent claim. The claim was the doctor told a woman who had a placenta problem that they would observe her the last few weeks before her due date instead of giving her the option of an early C-section. This decision was a potential informed consent violation.


Lloyd: You’ve touched on the morality of a case. I tell younger lawyers in this practice that you can’t lose sight of the moral core. There’s a moral dimension in that jurors will be looking at this case or the story unfold, and they will be putting themselves in this situation.


As we wrap this up, I’d like you to spend a few minutes discussing your two passions – the skills and artistry of being a photographer and how it helps to inform and make you a better trial attorney. How have these two disciplines come together in your life?


Patrick: I’ve always been interested in and passionate about photography. In the last, probably four or five years, it occurred to me that taking good pictures and showing the beauty of a landscape or a bird or whatever it is, there is a lot of overlap between that and what trial lawyers do.


A trial lawyer simplifies and reduces the clutter of a case. They ask what the essence of the case is and what is happening here. Well, particularly in landscape photography, the difference between a good shot and an almost really good shot is a matter of adjusting your camera just an inch or two.


The different view you get from reducing the clutter of the landscape to capturing the essence of what you’re trying to show is an important part.


Take a Sparrow, for example. It’s the most common bird in America. You never noticed them. They’re just little tiny brown birds. If you take to the trouble of seeing a Sparrow in good light with the sunshine shining and then take a photo of it close up, it is an amazingly beautiful creature.


Similarly, with our clients, many people come to us as regular people, but if you look at them closely, you begin to understand them. If you look at them in the right light and shine the light of truth on your clients, you can bring out the beauty and show their uniqueness. If you can show that to the jury, you are way ahead of the persuasion game.


Lloyd: Pat, it has been a privilege talking to you today. I will hold on to the story of the sparrow. I think that’s the perfect metaphor for what we are trying to do as trial lawyers.


Thank you for following along with Face the Jury this season. Stay tuned for Episode 4, coming soon.