Schindler's attorney Pat Anderson to appear on Fox News with reaction to Michael on Larry King

Oct 28, 2003

[drlevy88]

Potassium causes damage by causing heart attacks, so we know that potassium is not an issue

Just a nit pick - if the heart just stops from a potassium level problem, does that cause any heart muscle damage? That would stop the blood flow to the heart muscle, but also the heart muscle wouldn't be using very much oxygen because it is stopped, so why would it be in any more danger of damage than a heart which is in transport to be transplanted?

[Mamzelle]

re: To: visualops -father was on, the gist of it was that original incident was not a heart attack, more likely a truama injury)))

I think the bulimia-brain damage assertion most suspect. This might happen with end-stage anorexia, but an otherwise healthy gal with a bulimia habit (she was of normal weight)??? I don't think so, Tim. The whole scenario reeks.

However, why are we hearing from dad at this late date about the original medmal complaint? There's a question for you, and it also comes down to money.

[Mamzelle]

re: What about the OB GYN that was sued in reference to the potassium issue? How did that suit go through if the ER visit showed what is stated here? )))

Supposedly this primary care physician failed to order some potassium test that, if had been ordered, might have saved Terri's life.

This would have been a most exotic outcome indeed for a bulimia habit in an otherwise healthy female of normal weight. It might fly if we were talking about an emaciated anorexic.

Bah. But I wouldn't have been allowed on that jury.

I think this whole story is going to have wide implications for the capriciousness of the medmal situation and civil litigation in general. Your question is a valid one--

[Mamzelle]

See post 49.

re: My question is why the doctor's lawyeers didn't bring it up in the "malpractice" suit? Did they settle out of court in fear of a larger money reward from a sympathetic jury (who will give huge amounts out of sympathy even when no medical malpractice had occured)...)))

Oh, this is a VERY interesting mystery!

It did go to jury, to the tune of almost six times what was eventually the judgement. It was reduced because of Terri's "fault" in being a bulimic.

How many bulimics of normal health and weight have you seen suffer brain damage from their "habit"?

Now, if she had been a dwindling anorexic...

What science. This is going to blow very high.

[lugsoul]

"set the damages accordingly"? The jury set the damages at more than $6M, but awarded only 30% of that amount because they found TERRI was 70% AT FAULT. Do you think they did that with no evidence of an eating disorder?

[T'wit]

> Do you think they did that with no evidence of an eating disorder?

Yes. They were TOLD there was an eating disorder. Now one would have to suppose they were misinformed. Drs. Hammesfahr and (I think) Baden deny there was or is any heart damage; ergo there was no potassium issue. The main finding at the ER was marks on Terri's neck consistent with attempted strangulation. A bone scan one year later revealed massive irregularities consistent with major trauma, which at her age is hard to explain except from a bad beating or an auto wreck (but she wasn't in one that anyone has mentioned).

[Saundra Duffy]

BUMP and thanks to Hannity & Colmes and FOX news.

[Saundra Duffy]

BUMP this thread.

[Mamzelle]

was the eating disorder a matter of testimony (say, Michael's), expert testimony, material witness--ie-- a matter of chart documentation?

That'll be the next question. Curious--we should be hearing from the gyn. That'll be an exciting line of questioning. I'm sure he's just thrilled (sarcasm) not to have that ordeal behind him. Or, he could be thrilled to have the opportunity to clear his reputation. Which way, I wonder? I also want to hear from the original plaintiff's atty--if it turns out it wasn't Pelos, and I don't think it was. Was plaintiff's counsel in the medmal aware of these peculiarities?

Lugsoul--hypothetical--if you happened to have been the plaintiff's medmal counsel...how cheerfully would you have rec'd these mysterious suggestions of trauma? Would you have pursued them vigorously?

Or would that have shot the plaintiff's hope of a big payout all to heck? Both Michael and the Schindlers would have known that they wouldn't get the dough for Terrir without that bulimia explanation.

There's a lot going on here besides the right to die issue, isn't there?

Tooth enamel would indicate level of bulimia "habit."

[lugsoul]

I wasn't at the med mal trial, but I know how they work. Michael could not establish her bulimia with his testimony. First, he admits he didn't know about it. Second, medical malpractice must be established by expert testimony from a physician - if a gyn failed to diagnose a condition, there must be some evidence of a condition to diagnose.

Would the plaintiff's lawyer [definitely not Felos - can't remember the name now, but a pretty big PI firm in Pinellas] have liked to see evidence that there was not bulimia? You are right - no way. But the defense lawyers? It would have been a silver bullet for them. Instead, they went the other way, and proved to a jury that Terri's "incident" was largely HER OWN FAULT - and still paid out six figures.

I assure you - if there was no evidence other than the testimony of Schiavo or any other layperson to establish that Terri even had the condition, this case never would have made it to trial.

[Mamzelle]

re: I assure you - if there was no evidence other than the testimony of Schiavo or any other layperson to establish that Terri even had the condition, this case never would have made it to trial.)))

I am impressed by your expression of confidence.

What if there Terri had indicated herself at some point that she was practicing some substandard weight-control techniques? The gyn might have charted same.

[Mamzelle]

re: But the defense lawyers? It would have been a silver bullet for them. Instead, they went the other way, and proved to a jury that Terri's "incident" was largely HER OWN FAULT - and still paid out six figures. )))

A good question. Would like to ask this defense team this very thing. I don't suppose you could think of a reason why they would have ignored (overlooked) such chartings of possible trauma?

Wonder how many insurance companies were involved?

[lugsoul]

It is not confidence. It is first-year Tort Law. The concept of causation. The whole case is built around the idea that the GYN missed something. You can only make the case if you can prove there was something there to miss. Michael Schiavo can't prove a missed diagnosis of bulimia. He ain't a doc, and he said he didn't know anything about it. In order to show that the GYN caused any injury to Terri, it must be shown - by a preponderance of the evidence i.e. more likely than not - that if the GYN had followed the standard of care the condition would have been discovered. That is impossible to do if the existence of the condition itself is mere speculation.

[Mamzelle]

re: It is first-year Tort Law.)))

You mean, that all-powerful maxim "Post hoc, ergo propter hoc?"

So, this is how it goes with juries...no greed, no resentment, no grandstanding, no seduction, no misdirection...just the two of us reasoning together for the better justice of man?

I mean, I'm trying to have a sense of humor. Not trying to be unduly bitter or cynical, but I am hard pressed to believe in your faith in this system. The courtroom is a dangerous place. I don't find it a stretch at all to wonder if the defense cut its losses or just fouled up. And what I'm thinking doesn't even make Terri's parents look good.

BTW--wouldn't her parents have also been plaintiff's?

[Lucky2]

I've been thinking all along that this husband has something he's hiding. I think I'm right from Greta's conversation. I hope that someone gets to the bottom of this.

[lugsoul]

Do you know of a better system?

That philosophical discussion aside, I'm not talking about what a jury would have done - though just about every jury I've ever seen does actually require SOME evidence. Sometimes they don't understand it, sometimes they do screwy things with it, but they don't just throw up their hands and decide they don't need any. No, what I am talking about is a showing of the basic elements of the case, whether on summary judgment or directed verdict. If the plaintiff doesn't present evidence sufficient to create an issue of fact for the jury to decide, there is no case to go to the jury. And if they didn't present medical evidence that she had the condition, there is absolutely no case that that a doctor failed to diagnose the condition. Florida law is pretty clear on this point - a doctor must take the stand and testify that, to a reasonable degree of medical certainty [the key phrase], the alleged negligent act of the doctor CAUSED the plaintiff's injury. Without that, there is no jury issue. It never gets to them.

[Mamzelle]

better system--well, under English common law, the plaintiff would be liable for costs if he lost . That'd level the playing field. America is unique among Western legal custom that makes the courtroom a freeforall for plaintiffs, and where the defendant always loses, even when he wins.

Another suggestion: legal representation should also fall under such "standard of care" tradtions. That is, all losing lawyers should find themselves in potential tort-ure.

I don't suppose it could be that Terri's pitiful condition was presented to the jury, which fell apart in pity and was easy pickin's for the plaintiff's counsel-- to grasp at any plausible excuse to blame a deep pocket and start handing out the boolah? Sure, bulimia. Happens all the time. Liar for hire said so, and he'd an MD.

And the defense, paid by the hour, doesn't have much to lose in cutting it's losses?

They didn't shut down a first-rate trauma system in Orlando because of sweet reason and common concern for justice, did they?

[lugsoul]

1) Sometimes litigants with good cases lose. Should they pay the other side's fees in your perfect world?

2) The "losing" lawyer should be subject to tort liability? You misunderstand the standard of care. Doctors aren't liable if a patient dies. Lawyers aren't liable if they lose a case. They are liable if they don't do those things that a reasonable professional would do under those circumstances. The outcome has little to do with it. Some of the best lawyering I've ever seen was on the losing end of a bad case. Just as, I'm sure, some of the best medical practice occurs in ultimately futile efforts to save a critical patient.

3) As far as the "free-for-all" for plaintiffs, you are apparently all too swayed by media reports and politician's laments. The latest data from the state court systems indicates that 30% of medical malpractice plaintiffs win their cases. That's right - 30%. I'm sure I'll get a "source, please" post, so the source is the National Center for State Courts.

[lugsoul]

Actually, let me adjust my numbers for later figures. 23% of med mal plaintiffs prevail at trial. And the median award is $286,000. Some "free-for-all."

Isn't ORMC trying to get more public funding? Yeah, doctors never raise the "malpractice" boogeyman when they want more money.

Yeah, the jury felt soooo sorry for Terri that they decided it was 70% HER FAULT. Methinks you are pretty invested in this if you have to take positions like that.

[Mamzelle]

re: ) 1..Sometimes litigants with good cases lose. Should they pay the other side's fees in your perfect world? )))

Yes.

re: 2.. Some of the best lawyering I've ever seen was on the losing end of a bad case.)))

And the doc most likely to be sued is the one in the habit of taking the hardest cases--case in point, your Orlando trauma system lost its trauma surgeons because litigation drove their costs beyond tolerance. See again, #1. Thousands of tourists are now in jeopardy of losing their "golden hour" in an accident because of Florida lawyers...who shall these tourists then sue? It would seem that many torts go unpunished.

re: ... 3)... As far as the "free-for-all" for plaintiffs, you are apparently all too swayed by media reports and politician's laments. The latest data from the state court systems indicates that 30% of medical malpractice plaintiffs win their cases. That's right - 30%.)))

That many? I don't understand your tone of triumph--you are certainly going to great effort to prove my point. Do you realize that leaves 70% of victorious defendants out the costs of their own defense? Dragged into court to endure great expense with no hope of doing anything more than cutting their losses? This is outrageous. The trial lawyers should be taxed to pay those defenses.