Does Anybody Have “The Time”

Posted on February 28, 2011 05:32 by Jim F. Bleeke

A very common issue in emergency room cases, especially code situations, is the timing of when key events occurred.  A major challenge for defense attorneys results from the fact that the times recorded by various doctors, nurses and electronic records almost never match up. The times for key events often vary by 2-5 minutes.  Plaintiffs’ attorneys either try to select the times that are most favorable to their theory of the case, or use the discrepancies in recorded times to attack the reliability of anything in the chart.

Defense counsel frequently must use witnesses to explain the reality that doctors and nurses often use their individual wrist watches or the clock on the wall to obtain the times they record.  Those timepieces commonly do not correspond with computerized times from other monitors attached to the patient.  The ability to persuasively explain the realities of the recording of events and their times can be crucial to convincing a jury that the health care provider met the standard of care.

This issue will be discussed in two separate presentations at the upcoming DRI Medical Liability Conference in March 10-11, 2011 at the Palace Hotel in San Francisco.  Bradley Freeman, M.D. will provide the medical perspective on charting while rendering life-saving care in a code situation.  Tara Trask (a very experienced jury consultant) will use video segments from actual mock jury deliberations to explain how jurors react to these types of issues in medical liability cases.

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Categories: Medical Liability | Seminar

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I recently was in Chicago for the Seventh Circuit Court of Appeals argument in a correctional health care case involving the death of a pretrial detainee.  The federal district court had granted summary judgment to all defendants after mediation at which Plaintiff’s counsel had been unwilling to reduce his demand below five million dollars.  The defendants hope the Court of Appeals will uphold the trial court’s well-reasoned 62-page opinion.

I was struck during the argument (which was divided three ways by defense counsel) by just how important it had been throughout the case that the numerous attorneys for all defendants cooperated so well with each other, as opposed to finger-pointing or trying to blame the unfortunate death on another defendant.  By maintaining the goal of simply proving the reasonableness of each defendant’s conduct, the defense team eventually succeeded in establishing for the trial court that the prisoner’s death was totally unforeseeable and unpreventable.

The benefits of cooperation among defense counsel and the pitfalls of finger-pointing is one of the topics that will be addressed at DRI’s Medical Liability and Health Care Seminar March 10 and 11 at the Palace Hotel in San Francisco.  Morris Jensby of CHG Healthcare Services, Inc. in Salt Lake City and Russ Schell, an eminent trial attorney from Schell Cooley in Dallas will explore this topic in depth from the perspective of both the corporate health care client and trial counsel.

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