Legal background

In criminal cases, a prosecutor cannot call a defendant as a witness and ask him to testify against himself. That’s what the Fifth Amendment is about. But the rules are different in civil matters, such as malpractice and negligence, where a plaintiff’s attorney can call anyone to the stand—even the defendants.

In this case, calling the defendants was essential. The plaintiff’s attorney’s theory required him to have Dr. T and Mr. E admit they didn’t inquire about the seat belts. The only way to do that was to put them on the stand. After plaintiff’s lawyers rest, defense attorneys routinely ask for a directed verdict, claiming that the plaintiff has not offered adequate proof of liability. These motions are rarely granted. Judges usually give plaintiffs the benefit of any doubt and allow the case to go to the jury.

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In this case, however, the judge recognized that the plaintiffs had not come close to proving their case.  The issue about the car and its seat-belt system was a red herring. These are questions no medical professional could be expected to ask, especially when there are no apparent signs of abdominal injury.

Protecting yourself

Mr. E and Dr. T treated this patient appropriately. They examined him repeatedly, observed him closely, checked vital signs, ran tests, and ordered a head-and-neck CT scan and a chest x-ray.  After all this, Tim appeared to be okay, with no apparent injuries or abnormalities on any test. Releasing him at that point could not be construed as malpractice.

When a death occurs, especially an untimely and tragic one, the survivors often seek answers or try to assign blame as a way of dealing with their grief. Sadly, sometimes tragedy occurs, and there just isn’t anyone to blame.

Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.