A medical malpractice trial Part 2

My family initiated a medical malpractice trial against a doctor for failure to follow the standard of care required to safely perform a cardio version procedure back in April 2007. I wrote about some of the issues related to the trial here yesterday.

Background: To safely perform this cardio version procedure requires that the patient be on a therapeutic level of a blood thinner for 3 weeks prior to the procedure and 4 weeks after to dramatically reduce the risk of stroke that might ensue from this procedure. She was not at a therapeutic level prior to or the day of the procedure. The risk of stroke from not being properly prepared was estimated to be 200 times what it would have been without proper protection. There was no claim that my mother had not been compliant taking the medication as directed to prepare for the procedure.

In spite of the fact my mother suffered a massive stroke and died 3 days after the procedure, we lost the malpractice case today in what appears to be a case of jury nullification.

The jury took it upon themselves to only look at one issue–the fact that my mother would not follow the advice of the doctor to take a drug that was known to cause her severe nosebleeds when first diagnosed with atrial fib–and refused to even consider the evidence that the doctor was negligent. We learned this when our attorney was able to interview the jury immediately following the verdict.

The jury reached their verdict based on their feeling that my mother was negligent by not taking a blood thinning drug since the onset of her atrial fib as recommended by the doctor, and, based on that, they concluded “it was inevitable” that she would have a stroke so the doctor should not be held liable.

Probability is not inevitability–it is simply probability. There was no testimony about “inevitability.”

We took the doctor to trial for his negligence. The defense put my mother’s health history on trial. The defense prevailed.

Our attorney advised that juries are loathe to find doctors guilty of malpractice. They figure that even if the doctor is guilty, they likely won’t do it again. The doctor lied on the stand about material facts but that ultimately didn’t matter as the jury never looked at his actions or testimony in rendering their verdict.

I encourage you to read Part 1 of this story. You’ll read (amongst other things) that this doctor has lost 4 prior malpractice cases during his 16 years in practice, a fact that the jury never heard due to legal restrictions.

I am disappointed this matter concluded the way it did.  But, I’m not sorry we pursued legal action.  We owed it to my mother.

Dave Gardner


6 Responses to A medical malpractice trial Part 2

  1. Linda says:


    I’m so sorry to hear this ended the way it did. How frustrating. But you did the right thing to pursue this and try to bring this man to justice. Unfortunately, it looks like this became more about how to cause reasonable doubt in the mind of the jury and less about doing the right thing.

    We often forget that 50% of doctors graduated in the bottom of their class. There are great physicians and there are really bad ones. Those who cause harm should in fact be punished.



  2. B1G1 says:

    The last paragraph says it all, Dave. And she’d be proud of you too.



  3. Dave,

    I agree that you were right in pursuing this. It’s unfortunate that in the process you ran smack into one of the ways the current legal system is broken.

    Knowing you, I know you’re bouncing back from this and that you’re stronger for putting up a good fight. I have to believe that in the long run this physician’s misdeeds will come back to haunt him.

    All the best to you.



  4. Dave says:

    Linda, Paul and Bruce…thanks for your support and compassion. I appreciate it very much!

    All the best…Dave


  5. Dave,

    I’m so sorry to see that this ended without justice. You truly did the right thing, and can rest without regret.

    Amy Showalter


  6. Sylva Leduc says:

    Dave, I am so sorry to read about the outcome. As you know, in many ways you were also fighting the good fight for the premature death of my mother, which I feel was also due to negligence.

    All the best to you, my friend.



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