An Academic Lackey in Judge Greenacre’s Court

1. An Academic Lackey inJudge Greenacre’s Court Two weeks as a juror in the US legal system

2. A Serious Matter • This was a medical malpractice case that involved the death of the patient. • Everyone at this proceeding was aware of the seriousness of this case and the importance of doing the right thing. • Some of my observations are on the lighter side – please don’t think that I’m not aware of the gravity of this or that we didn’t take this case seriously.

3. Jury Selection • My legal adventures started with a simple object: a hat containing the names of prospective jurors. Of the 70 or 80 folks in the room, my name was drawn first. • At Yale, the faculty almost NEVER got picked for jury duty – lawyers seem to want easily impressionable jurors. Perhaps Gunnison lacks enough such people to fill a jury. • The lawyers didn’t want anyone that wasn’t going to be happy – folks with work problems got dismissed without a fight. • Jury selection took an entire day – 8 jurors were empanelled.

4. The Jury Our jury was very representative of Gunnison / Crested Butte: • Professor, bank teller, landscaper, distributor, minister, salesman, plumber, and high school coach. • We worked well together and enjoyed getting to know each other.

5. The Gunnison Courtroom The highlight of our courtroom is a set of juror chairs that go back to the Alferd Packer trial:

6. Cast of Characters • Judge Greenacre – he had to keep the lawyers in line and interpret the law. • 2 sets of lawyers, one senior and one junior each for the plaintiff and defendant. You knew that something wasn’t very important if the junior guy was speaking. These lawyers had previous history and were at each other’s throats constantly. • 2 assistants running computers with exhibits on them • Plaintiff (daughter) and defendant (orthopedic surgeon) • Jury consultant (first day only) • Bailiff (the jury’s pal) • Court recorder (pity her when the doctors get going) • 8 Jurors • Witnesses: Drs, Economist, Family, Coworker

7. Technology in the Court • http://www.verdictsystems.com/software/ • Court recorder: she used a stenographic keyboard (very cool!) and was producing a transcript as the trial went on. Monitors on the lawyers tables and judges bench allowed them to see the transcript as it was typed.

8. The Complaint April 3: A 52 year old woman missteps and breaks her ankle. An orthopedist is called to the ER and he operates (an “ORIF”) that evening April 6: Patient is released from the hospital Checkups after April 6 show normal progress May 10: patient starts walking May 14: patient complains of pain and swelling. An ultrasound is used to image the leg veins for blood clots – nothing found May 18: patient has breathing problems but doesn’t go to ER May 20: patient has serious respiratory problems and goes to ER May 21: patient dies of a pulmonary embolism (blood clot blocking the lungs)

9. Judicial Process • Suit is filed • Experts are shown patient records and give a short description of their opinions and what they would say • Depositions are gathered from experts you want and opponents experts • Based on these, they depose people again on topics in other depositions • And again … • At trial, you’re really just repeating questions from depositions. No real surprises.

10. A Jury-Based Medical Education • I’ve had what is effectively a 3 credit hour course in DVT, Hematology, Orthopedics, Radiology, and Internal Medicine, taught by experts in the fields. And it was free! • I can tell you where you the popletial vein is or what a thrombus is. • I can spell Prophylaxis if I try hard.

11. Basic Medical Issues • A DVT (Deep Venous Thrombosis) is a clot that forms in the veins of the extremities • If the clot grows and breaks off it can travel to the lungs • 20% of the time this results in death • Lots of things increase your chances of clotting: inactivity, surgery, age, drugs like Estrogen, family history. • Clots grow on scars on vein walls • Small clots may move from small veins to larger ones

12. Preventing Clots Drugs like LMWH (Low Molecular Weight Heparin) help prevent clotting but carry risks of bleeding. In some surgeries, you always treat with blood thinners like LWMH afterwards to prevent clots. Avoid even small clots when patient is at highest risk (immobile, surgical trauma) so that no scarring will occur. If you exhibit signs of PE (clots travelling to the lungs), powerful anti-clotting drugs can help dissolve these clots.

13. Issues in this case Should the doctor have put the patient on anti-clotting drugs after ankle surgery? Should he have performed further tests after the ultrasound found no clots on the 18th? Did he tell the patient what the symptoms of DVT are so she would go into the emergency room at the first signs of PE?

14. Misleading Math • Lawyers are not like professors – their job is to win at all cost • Math was one of the main weapons used at this trial – much of it was deliberately misleading • The basic point of contention involved risk analysis – determining what different risks are and weighing them against each other to determine treatment

15. Risk Assessment We all make risk assessments. Here’s mine on those late night drives up from Montrose: Deer on the road Swerve Hit It Minor car damage Antlers in the chest Missed Bottom of Blue Mesa

16. Risk Assessment This isn’t of any use unless I know roughly what the likelihood of these outcomes is. I’ll add probabilities: Deer on the road Swerve Hit It .1 .95 .05 .9 Minor car damage Antlers in the chest Missed Bottom of Blue Mesa

17. Risk Assessment In the real world, • There are far more possible outcomes • We don’t really know what the probabilities are • Value judgments personalize the analysis Ultimately we need to know these risk probabilities as precisely as possible to make an educated judgment Doctors have to do this all the time! Much of this is done intuitively.

18. Risk Factors • To estimate probabilities, we need to look at risk factors – things that increase “normal” risk of an event. • Just about anything could be a risk factor: age, weight, history, other conditions. • Doctors can observe these intuitively (my older patients seem to develop more blood clots …) • Careful studies are needed to put numbers on individual risk factors • Doctors tend to reduce probabilities to simpler conditions: High / Low / Medium

19. Example Two highway patrolmen look at the cars that have been wrecked after deer swerves. One notices that most of the drivers were male. Another notices that most of the wrecked cars were SUVs. Both publish papers identifying a risk factor for rollovers when you swerve. Now everyone knows that being male or driving a SUV is a risk factor.

20. The Big Question! Does this mean if you’re a male driving a SUV that you’re a higher risk for rolling over if you swerve than someone with just one risk factor?

21. Example No! It might, or it might not. Maybe it means that male drivers are more likely to own SUVs (the risk factors are not independent). Maybe it means that SUVs are easier to roll over and that men tend to swerve more violently (the risk factors are independent). You can’t tell until you study both parameters at once! What’s NOT true is that being both male and in a SUV guarantees that your risk is higher than either a male or a SUV driver.

22. Univariate vs multivariate analysis A study looking for a correlation between a single factor and its risk is univariate. A study in which you look at how these factors fit together is multivariate – this might show that only owning a SUV is important – being male might be inconsequential.

23. Double Blind vs. Retrospective Analysis Suppose a group of drivers decides to carry a sealed envelope in their cars that will say “swerve” or “hit”. These are assigned randomly ignoring differences between drivers. This would yield “high quality” data on actual probabilities. A retrospective study would be to find reported deer incidents and look at outcomes / risk factors. This yields much lower quality information. In this trial, all papers cited were retrospective analysis trials so it was hard to treat any of the papers as conclusive.

24. More Confusion Note that risk factors can affect both choices. For example, driving a SUV might make it more likely to survive a deer collision. Many factors don’t contribute to the probabilities enough to change the decision. Your decision on whether to swerve will be the same regardless of whether a factor is present.

25. Algorithms This risk assessment stuff can be turned into an algorithm. This will instruct the driver which risk factors to assess and present a decision process based on these. Unless an algorithm is validated by studies, it’s just someone’s guess. There are lots of algorithms in the medical literature that haven’t been validated! PS – don’t swerve. That’s what the highway patrol will tell you about deer. (Not sure about moose though!)

26. Confusing the Jury with Numbers Lawyers often avoided the truth by focusing on numbers that were not directly connected to clinical decision. • Refusal to talk about absolute probabilities: did you know that factor X increases risk by Y%? But if you don’t know the actual probabilities this is meaningless! Did you know that wearing a helmet while hiking decreases the risk of being killed by a meteor by 20000%!

27. Confusing the Jury with Numbers Ignoring risk in the alternatives. In this case, the plaintiff wanted you to assume that there was NO RISK in using blood thinners. Did you know that wearing a helmet while hiking increases risk of heat exhaustion by 2%?

28. Confusing the Jury with Numbers We were constantly reminded of all the different risk factors that this patient had for blood clots. But can you just “add up” these factors? Although it seems logical, this ignores a lot: • The actual numbers are ignored – just because something is a factor doesn’t mean that it contributes significantly • If risk factors are not independent of each other, there’s no mathematical justification for adding them up

29. Treatment Lock In • A doctor develops a new procedure (say knee replacement) • The doctor guesses that this involves some particular risk (blood clots) and includes anti-clotting measures in the standard treatment • The procedure becomes widely accepted. But there is no solid evidence that this anti-clotting is needed!

30. Treatment Lock In Why is this relevant? • It was argued that if the risk of clotting in knee replacement is so high that anti-coagulants are always needed. • So in a somewhat lower risk surgery on a higher risk patient you would probably need them too. But it’s almost impossible to study whether these are needed in knee replacement since withholding them would violate the standard of care, even though this standard isn’t based on hard science!

31. Reality vs. Science • Reality is what you experience as a practitioner • Science is what you can prove through research studies • We couldn’t admit science post 2002 that would have provided a picture of reality in that year – only science that was known in 2002 or earlier was admissible. But the experience of practitioners would match the science, whether in 2002 or 2008!

32. Evaluating Experts We’re constantly bombarded with expert opinions on things that are too complex for us to understand unaided: • Global Warming • Vaccinations and Autism • Economics On all of these issues, there are “experts” on all sides with differing opinions. So how can we get at the truth?

33. Evaluating Experts It’s guaranteed in this sort of a case that the plaintiff will have an expert that says “this doctor screwed up” and the defense will have one that says “did the right thing”. You wish that one of these guys would get thrown in jail for perjury but that doesn’t happen! Our task was to side with one set of experts or the other – given that the jury has far less medical expertise this is a daunting task!

34. Evaluating Experts Things we had at the trial: • Personal opinions formed from watching the demeanor of the witnesses. • Professional credentials and work experience • Papers and studies which backed up / refuted the experts • Financial ties to the trial process: fees, frequency of testimony, which side the expert usually took.

35. Our Experts Two academic “true believers” – these guys spent a lot of time talking about DVT and all sorts of ways to detect, prevent, and treat it. They never said much about the risks of these treatments and were convinced that every doctor ought to know what they did about the risks of clotting. These guys came off as sincere but very focused one specific thing. They weren’t orthopedic surgeons. They couldn’t demonstrate a history of well researched, widely read articles backing their point of view – they seemed to be on the fringe / cutting edge (you can’t tell which!)

36. Our Experts The “sockpuppet”. This orthopedic surgeon seemed toshare EXACTLYthe views of hislawyers. With 100% certainty. And he did a lot of legal work for those same lawyers. And he practiced in a very different environment. A long ways away.

37. Our Experts The numbers guy. He did a great job of telling us EXACTLY what the probabilities were in the risk analysis. And why risk factors don’t just “add up”. And why it’s so hard to get exact numbers from studies. And what was known from solid studies versus what was just being guessed at. I asked him a question about multivariate vsunivariate analysis. He gave a great answer. He had a much better math background than a lot of the other experts.

38. Our Experts The economist. How much would you be worth if you died? Lots! Future income. Help around the house. Insurance. It adds up! She did a good job explaining the math and everyone on the jury thought she did a good job justifying her numbers. She used a lot of bureau of labor stats to justify things that couldn’t be measured directly. This is what you do with a PhD in Econ and don’t teach! The other side spent a lot of time arguing that the decedent was about to get a lower salary but this was basically horse puckey. Interestingly, they couldn’t get the employer to figure out the actual cost of the company health plan.

39. Our Experts The no-BS locals. These guys had practices similar to the defendant. They refused to let the lawyers put words in their mouths – there was a lot of legal theatre going on. They were both new at this trial thing and seemed rather amused at the various lawyer tricks.

40. Other Experts • The autopsy doctor – he found the lung clots but couldn’t prove where they came from. We had to sit through the gory details of how autopsies are done. • The radiologist – he told us all we ever would want to know about how accurate ultrasounds are. He said the technician did a good job and ruled out clots in the large veins on the 14th.

41. The Community of Professionals How do professionals get information? • Would you know of information in a journal you don’t subscribe to? • Would you not know information in a journal you don’t subscribe to? • Where do professionals get most of their information? This was one of the big issues – had the Dr. read article X? Note that there are FAR more journals out there that anyone can keep up with!

42. Stupid Lawyer Tricks Deposition “Gotcha!” • We spent untold hours listening to doctors and lawyers argue about minor inconsistencies between deposition answers and courtroom answers. • BORING!!! • None of the witnesses really had issues with this.

43. Stupid Lawyer Tricks Didn’t You Know THAT? Find some obscure journal that might not even be in the same field. Express amazement that the witness hasn’t appreciated the wonderful wisdom of some small paragraph buried with an article.

44. Stupid Lawyer Tricks But That’s Not an Orthopedics Journal! This is the opposite of the previous trick – assuming that a Dr. is only responsible for knowledge published in his own narrow specialty.

45. Stupid Lawyer Tricks The “Perry Mason Moment” These can’t really happen incivil trials – everything hasto be disclosed in advance. The plaintiff lawyer made a big deal about a “suspicious” note that the Dr. made after the death. Why was it not filed where it should have? Who transcribed it? Is it a SECRET ADMISSION OF GUILT?!??! We never felt this was a big deal but evidently it occupied endless time at the depositions!

46. Stupid Lawyer Tricks Is It Possible? Get a witness to admit that some very far-fetched idea is at least possible. They hope to confuse the jury that “possible = likely”. Since almost everything in medicine is uncertain you can always play this game.

47. Is It Possible? Is it possible that the moon is made of green cheese? • Have you been to the moon? • Have you ever seen the other side of the moon? • How many different places have moon landings occurred? • Could the moon landings have been faked? • Doesn’t the moon look sort of green some nights?

48. Funny Stuff Little bits of humor to break the monotony: • I cannot answer that with a simple “Yes or No” but I can expand on this if asked. A witness refuses to let a lawyer put words in his mouth.

49. Funny Stuff Don’t you mean the “Journal of Foot and Ankle” instead of “Foot and Ankle International”? That’s a PODIATRIST journal!

50. Analyzing the Arguments The plaintiff’s case was superficially about various experts who believe they would have treated the patient differently. But there was a strong emotional subtext that was meant to persuade us more than the facts of the case.