| View from the Jury Box | | | | around his neck, not breathing or moving, had turned |
| | | | pale blue. The Apgar scale, used by doctors to |
| During jury selection for a medical malpractice case | | | | evaluate a newborn baby’s general condition, |
| tried in New York State Supreme Court (Queens | | | | was 2 (out of a possible 10) at one minute after birth, |
| division), I asked a lot of questions—in hopes that | | | | and 3 at five minutes. Intervention by members of the |
| this would disqualify me from consideration. | | | | hospital’s Neonatal Intensive Care Unit (NICU) |
| I had heard that lawyers usually don’t like | | | | brought steady improvement to Nicholas’s vital |
| potential jurors who ask “too many” | | | | signs. They stabilized his Apgar at 8 (normal). Mother |
| questions. Questions might cause them to reveal | | | | and baby were routinely discharged from the hospital |
| something they would prefer not to or cause other | | | | two days later without further incident. |
| jurors to start asking questions. To my surprise, I was | | | | After the plaintiffs completed their case, Citrin began |
| chosen to be on the jury. As I would find out later, I | | | | his defense of Stern and LIJ. He dealt first with |
| was selected because I asked so many questions. | | | | whether Stern had deviated from accepted medical |
| My two previous jury experiences had been on | | | | practice in managing Caputo’s labor and |
| criminal cases, which, understandably, created a more | | | | delivery. Citrin called other OB/GYN physicans, who |
| serious, weighty atmosphere for jurors. However, the | | | | testified that, based on the fetal heart monitor strip, |
| entire process in the Caputo civil case (jury selection, | | | | Stern made a medically acceptable decision to permit |
| accessibility of the judge and attorneys, and, to a | | | | Caputo’s labor to proceed and her to give birth |
| surprising extent, the trial itself) seemed to encourage | | | | naturally. |
| a spirit of open, even friendly, inquiry into the important | | | | Citrin later addressed an issue that I had asked about |
| issues. | | | | during jury selection. In court, witnesses and |
| New York State residents are permitted to postpone | | | | Nicholas’s medical records confirmed my |
| reporting for jury service up to three times before the | | | | conjecture that at no time in the child’s life |
| law requires them to report. I had already used all | | | | before age five (his age at the time of the trial), had he |
| three of my postponements and was fairly certain that | | | | ever been given any kind of diagnostic tests that might |
| I would end up on a jury this time. Considering the | | | | have revealed brain damage sustained at birth or later. |
| reputation of medical malpractice cases as examples | | | | Although this is neither illegal nor abusive, this simple |
| of “jackpot justice,” and my skeptical | | | | fact made Caputo seem neglectful of her son’s |
| views about trial lawyers, I expected to see the civil | | | | interests. |
| justice system at its worst. | | | | Caputo testified that, when Nicholas was about two |
| Trial lawyers are often associated with words like | | | | years old, she began to notice that he might be |
| ambulance-chaser, shark, and predator—and | | | | delayed in achieving normal developmental milestones |
| those middle-of-the-night TV commercials that urge us | | | | in a few areas. She was working and carried |
| to sue someone. In response, the American Trial | | | | adequate health insurance for herself and Nicholas, but |
| Lawyers Association embarked on an ambitious | | | | she never had him tested—no CAT scans, |
| image improvement campaign. In 2006, it changed its | | | | MRIs, or EEGs had ever been taken. The law firm |
| name to the American Association for Justice. And it | | | | representing the Caputos sent Nicholas for an EEG in |
| dropped the term trial lawyer altogether, replacing it | | | | preparation for this trial and ordered competency tests |
| with civil practice attorney. | | | | to show the extent of Nicholas’s developmental |
| “Med-mal” is a prime example of how the | | | | deficits. He now attends a special education program |
| reputation of civil practice lawyers has deteriorated. | | | | at a New York City public school. |
| They are often blamed for causing juries to wrongly | | | | Whatever these tests showed, there were no earlier |
| side against doctors on the question of medical | | | | baseline data to compare them against. For me, that |
| negligence and to award more in damages than | | | | was the deciding point, and Citrin had framed it very |
| justice requires. But this reputation may be a bad rap. | | | | clearly for the jury. Once our deliberations began, we |
| “Doctors & Juries,” a 2007 article in | | | | quickly agreed overall that the plaintiffs hadn’t |
| the Michigan Law Review reported that | | | | convinced us, especially regarding negligence. We |
| “Although juries are widely believed to be biased | | | | awarded no monetary compensation. |
| against physicians, patients lose twice as many | | | | We worried about the impact that our verdict might |
| medical malpractice verdicts as they win.” The | | | | have on Nicholas, who came into court briefly during |
| article compared studies of cases that resulted in jury | | | | the trial. He was a physically healthy child with long, |
| verdicts and evaluations of the same facts by one or | | | | curly hair and a pleasant manner. He waved and |
| more physicians. The analytical methods of the studies | | | | smiled at the jury members. As a father of three, I |
| differed, but the comparisons showed surprising | | | | could not help but feel compassion for Nicholas and his |
| similarities: plaintiffs won about 10 to 20 percent of the | | | | mother. All of the jurors felt the same way: we were |
| cases with weak evidence of negligence and 50 | | | | concerned about what the future might hold for them. |
| percent of the cases with strong evidence. | | | | However, we were told after the trial by the presiding |
| Marc J. Citrin is a prime example of why the reputation | | | | judge, New York State Supreme Court Justice Roger |
| of trial lawyers may be undeserved. Citrin is a senior | | | | N. Rosengarten, that to reach a mutually acceptable |
| partner with the New York firm of Shaub, Ahmuty, | | | | financial settlement, Citrin had offered Langell what is |
| Citrin & Spratt, which specializes in professional | | | | known as a “high/low agreement.” In a |
| liability defense and hospital and health care law. | | | | high/low agreement, the low figure sets a minimum |
| When my turn came to be interviewed for the Caputo | | | | amount that a plaintiff is assured of receiving. The high |
| v. Doctors Wallace and Stern and Long Island Jewish | | | | figure is the maximum amount the plaintiff stands to |
| Medical Center jury, I was astonished that Citrin, the | | | | gain, regardless of what a jury decides. In effect, this |
| defense lawyer in this case, encouraged me to ask all | | | | agreement puts the financial outcome of a civil trial |
| the questions I could think of—and continued to | | | | beyond the jury’s control. Why did Citrin believe |
| talk with me after the jury interviews ended. I | | | | it was necessary to offer the high/low? |
| appreciated that he took my concerns seriously and | | | | “If we lost and had to pay compensation, all or |
| answered to the best of his ability. When he | | | | most of Dr. Stern’s personal assets, including |
| didn’t have a good answer or didn’t | | | | her house, could have been taken away from her. LIJ |
| know the answer, he said so. | | | | was not subject to the high/low, so she would have |
| In complex matters like medical malpractice, Citrin tries | | | | been the only one held financially liable. I wanted to |
| to find jurors who will be able to follow the arguments | | | | protect Dr. Stern’s personal assets.” |
| and decide the case with their heads rather than their | | | | It’s easy to understand why Langell accepted |
| hearts. In selecting this jury, Citrin looked for working | | | | the offer: “We might have gone home |
| people. “They know how to assume | | | | empty-handed. I could not let that happen if there was |
| responsibility. I also want educated people because | | | | an alternative,” Langell said after the close of |
| they ask a lot of questions,” he says. | | | | the trial. Caputo, who had originally sought a million |
| Defending doctors accused of malpractice is one of | | | | dollars, accepted $600,000 under the agreement. |
| Citrin’s specialties. “I like defending doctors. | | | | Neither she nor Langell agreed to be interviewed for |
| They try to do the right things for the right | | | | this article despite repeated requests. |
| reasons,” he says. “I have a deep-seated | | | | “Caputo was the type of case where the facts |
| belief in the position that I am advocating. “I try to | | | | could have supported either side,” Justice |
| be open and honest with juries and provide all of the | | | | Rosengarten says. A verdict had the potential for |
| information necessary for them to reach the | | | | plaintiffs to go home with nothing or for defendants to |
| conclusion that I want them to reach.” | | | | pay a much larger amount in compensation than they |
| Toni Ann Caputo sued her obstetrician, Dr. Frances | | | | expected. Mr. Citrin’s offer of the high-low |
| Stern, a senior attending physician at Long Island | | | | served the interests of both sides. I’m glad that |
| Jewish Medical Center (LIJ), and the hospital’s | | | | they were able to reach an agreement.” |
| labor and delivery staff, alleging that they had deviated | | | | Medical malpractice remains a politically sensitive issue. |
| from accepted medical practice in the management of | | | | There are some indications that the Barack Obama |
| her labor and delivery. (Dr. Wallace was separated | | | | presidency might create a very different arena for |
| from the case before trial because she had had | | | | deciding medical malpractice cases. Obama |
| minimal contact with Caputo.) The suit alleged | | | | coauthored an article in 2006 with Hillary Clinton for the |
| negligence because Stern and LIJ staff did not | | | | New England Journal of Medicine, titled “Making |
| perform an emergency Cesarean section delivery in | | | | Patient Safety the Centerpiece of Medical Liability |
| response to what the plaintiffs said was severe fetal | | | | Reform.” The article recommended an |
| distress. | | | | alternative dispute resolution mechanism, which could |
| Her lawyer, John Langell, at the time with New York | | | | radically change or eliminate the current litigation-based |
| City medical malpractice firm Fitzgerald & | | | | civil tort system. |
| Fitzgerald, argued that the baby was in severe | | | | Obama and Clinton favored a nonbinding process by |
| distress due to repeated “variable | | | | which physicians could confidentially accept |
| decelerations” shown on the fetal heart monitor. | | | | responsibility for medical errors in exchange for an |
| Variable decelerations are temporary decreases in a | | | | offer of “fair compensation” and the |
| baby’s heart rate caused when the baby | | | | patient’s promise not to sue. However, if the |
| presses on the umbilical cord. Langell said that the cord | | | | result is nonbinding, the parties could still try their case in |
| compression caused | | | | a civil court. Predictably, opinion is divided—some |
| “hypoxia”—deprivation of oxygen | | | | legal experts see the change as necessary because |
| to the brain—resulting in brain damage and | | | | the current system has become too expensive and |
| permanent developmental delays. Caputo sought | | | | time-consuming. Civil practice lawyers and judges are |
| monetary compensation of $1 million on the | | | | generally against it: they believe that it would be |
| baby’s behalf. | | | | anti-democratic to deny plaintiffs their day in court. |
| Nicholas, born with the umbilical cord wrapped twice | | | | |