It was a medical malpractice case. A stroke patient had become despondent in the hospital and committed suicide by jumping from the hospital roof. A window/door to the roof was in the patient's room. Called as defendents were the two doctors, the chief internist in charge of the case and the psychiatrist on his team, and the hospital. The civil suit, brought by the patient's family, charged negligence because in the week leading up to his death the patient was increasingly depressed and had expressed suicidal intent, yet no precaution was taken to secure his room.

The trial started on a Friday and lasted through the following Friday. From the beginning, it was clear that the plaintiffs would have a hard time with this jury. Negative comments regarding the plaintiffs' lawyer surfaced early, particularly from the jury foreman who was serving very much against his will. My take was that, although the plaintiff lawyer's style was clumsy and often annoying, his job was to get evidence into the record, and so I tried to focus on that. But there was no mistaking the fact that at least for some on the jury, the plaintiffs were very much losing in the theatre of the courtroom. The defense lawyers were much more polished, experts at defending these kinds of cases.

The doctors appeared to be very nice gentlemen, each at the end of a long and successful career in medicine. Hard not to sympathize with them, but nice people can still make bad mistakes. What protections do you expect to be in place when placing a relative in the care of professional care-givers?

The conventional wisdom is that juries are more likely to blame the institution. One might think that the hospital would naturally hold some blame for what unsafe conditions exist in the facility. The hospital's lawyer was a muted participant during the plaintiff's presentation. After the plaintiff's case was rested, the next time we entered the courtroom we found that the hospital's lawyer was gone. The judge informed us that the hospital was no longer party to the case and that we were to make no assumptions about the matter.

Nevertheless some jurors did, believing that the hospital had settled by agreeing to pay some amount of money to the plaintiffs. If they had been paying closer attention, they would have noticed that in fact the plaintiffs had presented no specific evidence against the hospital, whereas they were required to prove negligence by a "preponderance of evidence". Attempts by the plaintiff's lawyer while questioning various medical expert witnesses to insert questions regarding the physical plant were quashed by defense objections. (We learned later that the plaintiffs did have an architect on their list of potential witnesses, but for whatever reason, he was not called to the stand.) I wonder if knowing that outcome would have changed some of the jurors' votes in the end.

By the time the jury began deliberations on the second Friday, the predominant sentiment in the jury room was we don't want to come back on Monday. By this time, the majority of the jury was clearly on the side of the doctors. I had to agree that according to our instructions as stated by the judge there was not enough evidence to find that the head internist was negligent. Twelve out of 14 votes were needed to acquit him, and only one person voted against him. I was more troubled by the psychiatrist's standard of care. To my mind, he made a terrible mistake to dismiss the patient's deteriorating psychological state as side effects of reaction to medication and infection. Despite records that the patient had told the nurses he wanted to kill himself and had apparently become increasingly agitated and obsessed with death, no common sense precautions were taken to consider how easily the patient might carry out his suicidal intent.

In the final vote, I spoke first, and stated my belief that the psychiatrist was indeed negligent. The next twelve votes went the other way. Only then, when it no longer mattered, did a second juror agree with me. So it was over. I must say that although I did believe that the pschiatrist was legally negligent in his care of this patient, there was a second question that the law required to pin penal responsibility on the doctor. In order to assess damages, the jury would need to assert that the patient's negative outcome was "foreseeable and probable". To me , "probable" means "more likely than not", and that seems to me to be a pretty high standard that would be hard to assert in a case like this.

So, is there a lesson here? One thing seems sure, there are few protections for patients who are entrusted to monolithic medicine. Most doctors are conscientious and hard-working, but when one makes a mistake, he is off the hook unless you prove by the preponderance of evidence that he was clearly below the "average" standard of care of practitioners in his field.