A judge overrules the verdict when it ignores evidence that a clinician failed to heed a crucial test.

Dr. J, 62, was a primary-care physician in a small northeastern town. Disturbed by the changes in medical practice over the past 15 years, he was looking forward to retiring in a few months until a malpractice suit delayed his plans.

The patient, Mr. N, was 46 years old with a 15-year history of type 1 diabetes. Dr. J had been treating him for three years. During this time, Mr. N had twice-yearly checkups that included random blood sugar and glycosylated hemoglobin (HbA1c) tests. Dr. J also checked Mr. N’s BP and pulse at each visit, but he often forgot to note the findings if they were within normal limits.

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Mr. N was employed as a plant maintenance electrician and seemed to be doing well. With HbA1c levels in the low-7% range, he was active and productive on the job. But at what turned out to be his final checkup, urinalysis showed 3+ proteinuria.

Dr. J recommended that Mr. N see a specialist if this persisted. However, about a month later, the patient collapsed and was rushed to the emergency department. He was found to be severely acidotic and in renal failure. Soon, with his kidneys shut down completely, Mr. N suffered cardiac arrest and died.

The patient left a wife and three children. His widow, after taking stock of her finances, consulted a plaintiff’s lawyer who promised, “There is no cost to you unless we get you money.” She signed a 50% fee agreement, and the lawyer initiated a malpractice suit.

Dr. J was served with the papers while looking through a travel brochure. He put it away in his desk drawer and started reading the legal documents, which accused him of causing Mr. N’s death through “gross negligence and failure to monitor the patient’s renal status.” The lawsuit included Dr. J’s professional association as a defendant because it technically owned his practice. This arrangement allowed the doctor to participate in the association’s retirement plan.

The case progressed through the usual stages of paper discovery, during which both sides traded documents, to depositions, where the parties and witnesses gave preliminary testimony. Mr. N’s family described his routine checkups and insisted that “no one ever mentioned kidney tests.”

Dr. J gave his account next, reconstructing each visit from his notes in Mr. N’s chart. Over the years, Dr. J had developed a personal shorthand that he used—as he explained to the jury—only for his own reference, not for lawyers to scrutinize. He conceded that protein had been detected during urinalysis but added that false positives did occur in these tests from time to time. Believing that to be the case here, Dr. J explained, he decided to defer further testing until the next checkup.

Expert witnesses for the plaintiff and the defense were deposed next, giving opposite opinions as to whether Dr. J should have ordered kidney function tests right away. But when the defense expert conceded that there was adequate indication for Dr. J to at least have ordered a blood urea nitrogen (BUN)/creatinine ratio, the plaintiff’s lawyer pounced on the admission. He based his case—and his later appeal—on this one sentence, much to Dr. J’s chagrin.

When the depositions were over, the case was set for trial, which finally got under way after two postponements. Once everyone was in the courtroom, the jury listened carefully as Dr. J explained his approach to diabetic patients. He methodically worked his way through Mr. N’s chart, giving his rationale at each point.

On cross-examination, the plaintiff’s lawyer repeatedly emphasized that even the defendant’s own expert admitted that high BP and proteinuria in a diabetic patient should point to the need for a BUN/creatinine determination.

But two simple facts trumped all others: Dr. J was well-known as a compassionate, conscientious physician, and the jury liked his manner on the stand. After deliberating for five hours, it returned with a verdict in his favor, much to the amazement and anger of the plaintiff’s lawyer.

That attorney wasted no time in asking the judge for a new trial on the basis that the verdict was contrary to the evidence. The judge reviewed the testimony and agreed. He set aside the verdict and granted a new trial.

Dr. J groaned. Two years had elapsed since Mr. N’s death, and the litigants were still going at it with no end in sight. They eventually settled the case for $150,000.

Legal background

In theory, lawsuits are about facts and rules of evidence. In practice, as trial lawyers are very aware, lawsuits are about people, and the dynamics among the lawyers, the defendant, the plaintiff, and the jury are complex.

Juries accept testimony most readily from witnesses they like. In this case, Dr. J enjoyed a reputation as a competent, caring, compassionate physician. What the jury heard and saw from Dr. J on the stand confirmed their pretrial impression.

This subtle communication between witness and jury is an important factor in determining the likelihood of winning a case and thus the settlement value. But it’s a difficult factor to assess before trial, which accounts for the annoying tendency of lawyers to settle on the courthouse steps, often after the jury has been chosen.

Protecting yourself

Patients with chronic conditions, such as hypertension, obesity, or diabetes, often benefit from consulting a specialist, either once—for specific advice or guidance—or on a regular basis for continual monitoring. In this case, referral to an endocrinologist to review Dr. J’s management might have avoided Mr. N’s late diagnosis of renal failure. The specialist might have suggested more detailed screenings, such as the BUN/creatinine ratio, or offered other management advice.

If there were difficulties that prevented a specialist referral, such as a lack of insurance or other financial barriers, or a lack of specialists in the area, then Dr. J could have been more conscientious about his continuing medical education. He might also have checked the medical literature, either through peer-reviewed journals or via the Internet, for guidelines on how to manage a diabetic patient with proteinuria.

Dr. Starr is a retired physician and lawyer in the Austin, Tex., area. His legal practice included defending clinicians in malpractice litigation.