View From The Jury Box

View from the Jury Box

By Michael Bauch

During jury selection for a medical malpractice case tried in New York State Supreme Court (Queens division), I asked a lot of questions—in hopes that this would disqualify me from consideration.

I had heard that lawyers usually don’t like potential jurors who ask “too many” questions. Questions might cause them to reveal something they would prefer not to or cause other jurors to start asking questions. To my surprise, I was chosen to be on the jury. As I would find out later, I was selected because I asked so many questions.

My two previous jury experiences had been on criminal cases, which, understandably, created a more serious, weighty atmosphere for jurors. However, the entire process in the Caputo civil case (jury selection, accessibility of the judge and attorneys, and, to a surprising extent, the trial itself) seemed to encourage a spirit of open, even friendly, inquiry into the important issues.

New York State residents are permitted to postpone reporting for jury service up to three times before the law requires them to report. I had already used all three of my postponements and was fairly certain that I would end up on a jury this time. Considering the reputation of medical malpractice cases as examples of “jackpot justice,” and my skeptical views about trial lawyers, I expected to see the civil justice system at its worst.

Trial lawyers are often associated with words like ambulance-chaser, shark, and predator—and those middle-of-the-night TV commercials that urge us to sue someone. In response, the American Trial Lawyers Association embarked on an ambitious image improvement campaign. In 2006, it changed its name to the American Association for Justice. And it dropped the term trial lawyer altogether, replacing it with civil practice attorney.

“Med-mal” is a prime example of how the reputation of civil practice lawyers has deteriorated. They are often blamed for causing juries to wrongly side against doctors on the question of medical negligence and to award more in damages than justice requires. But this reputation may be a bad rap.

“Doctors & Juries,” a 2007 article in the Michigan Law Review reported that “Although juries are widely believed to be biased against physicians, patients lose twice as many medical malpractice verdicts as they win.” The article compared studies of cases that resulted in jury verdicts and evaluations of the same facts by one or more physicians. The analytical methods of the studies differed, but the comparisons showed surprising similarities: plaintiffs won about 10 to 20 percent of the cases with weak evidence of negligence and 50 percent of the cases with strong evidence.

Marc J. Citrin is a prime example of why the reputation of trial lawyers may be undeserved. Citrin is a senior partner with the New York firm of Shaub, Ahmuty, Citrin & Spratt, which specializes in professional liability defense and hospital and health care law.

When my turn came to be interviewed for the Caputo v. Doctors Wallace and Stern and Long Island Jewish Medical Center jury, I was astonished that Citrin, the defense lawyer in this case, encouraged me to ask all the questions I could think of—and continued to talk with me after the jury interviews ended. I appreciated that he took my concerns seriously and answered to the best of his ability. When he didn’t have a good answer or didn’t know the answer, he said so.

In complex matters like medical malpractice, Citrin tries to find jurors who will be able to follow the arguments and decide the case with their heads rather than their hearts. In selecting this jury, Citrin looked for working people. “They know how to assume responsibility. I also want educated people because they ask a lot of questions,” he says.

Defending doctors accused of malpractice is one of Citrin’s specialties. “I like defending doctors. They try to do the right things for the right reasons,” he says. “I have a deep-seated belief in the position that I am advocating. “I try to be open and honest with juries and provide all of the information necessary for them to reach the conclusion that I want them to reach.”

Toni Ann Caputo sued her obstetrician, Dr. Frances Stern, a senior attending physician at Long Island Jewish Medical Center (LIJ), and the hospital’s labor and delivery staff, alleging that they had deviated from accepted medical practice in the management of her labor and delivery. (Dr. Wallace was separated from the case before trial because she had had minimal contact with Caputo.) The suit alleged negligence because Stern and LIJ staff did not perform an emergency Cesarean section delivery in response to what the plaintiffs said was severe fetal distress.

Her lawyer, John Langell, at the time with New York City medical malpractice firm Fitzgerald & Fitzgerald, argued that the baby was in severe distress due to repeated “variable decelerations” shown on the fetal heart monitor. Variable decelerations are temporary decreases in a baby’s heart rate caused when the baby presses on the umbilical cord. Langell said that the cord compression caused “hypoxia”—deprivation of oxygen to the brain—resulting in brain damage and permanent developmental delays. Caputo sought monetary compensation of $1 million on the baby’s behalf.

Nicholas, born with the umbilical cord wrapped twice around his neck, not breathing or moving, had turned pale blue. The Apgar scale, used by doctors to evaluate a newborn baby’s general condition, was 2 (out of a possible 10) at one minute after birth, and 3 at five minutes. Intervention by members of the hospital’s Neonatal Intensive Care Unit (NICU) brought steady improvement to Nicholas’s vital signs. They stabilized his Apgar at 8 (normal). Mother and baby were routinely discharged from the hospital two days later without further incident.

After the plaintiffs completed their case, Citrin began his defense of Stern and LIJ. He dealt first with whether Stern had deviated from accepted medical practice in managing Caputo’s labor and delivery. Citrin called other OB/GYN physicans, who testified that, based on the fetal heart monitor strip, Stern made a medically acceptable decision to permit Caputo’s labor to proceed and her to give birth naturally.

Citrin later addressed an issue that I had asked about during jury selection. In court, witnesses and Nicholas’s medical records confirmed my conjecture that at no time in the child’s life before age five (his age at the time of the trial), had he ever been given any kind of diagnostic tests that might have revealed brain damage sustained at birth or later. Although this is neither illegal nor abusive, this simple fact made Caputo seem neglectful of her son’s interests.

Caputo testified that, when Nicholas was about two years old, she began to notice that he might be delayed in achieving normal developmental milestones in a few areas. She was working and carried adequate health insurance for herself and Nicholas, but she never had him tested—no CAT scans, MRIs, or EEGs had ever been taken. The law firm representing the Caputos sent Nicholas for an EEG in preparation for this trial and ordered competency tests to show the extent of Nicholas’s developmental deficits. He now attends a special education program at a New York City public school.

Whatever these tests showed, there were no earlier baseline data to compare them against. For me, that was the deciding point, and Citrin had framed it very clearly for the jury. Once our deliberations began, we quickly agreed overall that the plaintiffs hadn’t convinced us, especially regarding negligence. We awarded no monetary compensation.

We worried about the impact that our verdict might have on Nicholas, who came into court briefly during the trial. He was a physically healthy child with long, curly hair and a pleasant manner. He waved and smiled at the jury members. As a father of three, I could not help but feel compassion for Nicholas and his mother. All of the jurors felt the same way: we were concerned about what the future might hold for them.

However, we were told after the trial by the presiding judge, New York State Supreme Court Justice Roger N. Rosengarten, that to reach a mutually acceptable financial settlement, Citrin had offered Langell what is known as a “high/low agreement.” In a high/low agreement, the low figure sets a minimum amount that a plaintiff is assured of receiving. The high figure is the maximum amount the plaintiff stands to gain, regardless of what a jury decides. In effect, this agreement puts the financial outcome of a civil trial beyond the jury’s control. Why did Citrin believe it was necessary to offer the high/low?

“If we lost and had to pay compensation, all or most of Dr. Stern’s personal assets, including her house, could have been taken away from her. LIJ was not subject to the high/low, so she would have been the only one held financially liable. I wanted to protect Dr. Stern’s personal assets.”

It’s easy to understand why Langell accepted the offer: “We might have gone home empty-handed. I could not let that happen if there was an alternative,” Langell said after the close of the trial. Caputo, who had originally sought a million dollars, accepted $600,000 under the agreement. Neither she nor Langell agreed to be interviewed for this article despite repeated requests.

“Caputo was the type of case where the facts could have supported either side,” Justice Rosengarten says. A verdict had the potential for plaintiffs to go home with nothing or for defendants to pay a much larger amount in compensation than they expected. Mr. Citrin’s offer of the high-low served the interests of both sides. I’m glad that they were able to reach an agreement.”

Medical malpractice remains a politically sensitive issue. There are some indications that the Barack Obama presidency might create a very different arena for deciding medical malpractice cases. Obama coauthored an article in 2006 with Hillary Clinton for the New England Journal of Medicine, titled “Making Patient Safety the Centerpiece of Medical Liability Reform.” The article recommended an alternative dispute resolution mechanism, which could radically change or eliminate the current litigation-based civil tort system.

Obama and Clinton favored a nonbinding process by which physicians could confidentially accept responsibility for medical errors in exchange for an offer of “fair compensation” and the patient’s promise not to sue. However, if the result is nonbinding, the parties could still try their case in a civil court. Predictably, opinion is divided—some legal experts see the change as necessary because the current system has become too expensive and time-consuming. Civil practice lawyers and judges are generally against it: they believe that it would be anti-democratic to deny plaintiffs their day in court.