The Defense Argument that Defeated a $10M Med Mal Case

Posted by Courtroom View Network on Oct 2, 2015 1:48:00 PM

A closing argument in a medical malpractice case is a rhetorical highwire act, requiring a good attorney to ensure jurors understand key medical concepts while arguing how those concepts apply to the the specific case at hand. Spend too much time reiterating general medical concepts and risk losing the jurors' attention. Spend too little time on those topics and risk confusing the jury as you argue the evidence. In a $10 million trial over the stroke-related death of an emergency room patient, Mary Jaye Hall's closing efficiently combined complex medical information with powerful argument to strike at the theory of plaintiff's case. 

Esther Freudberg died at Martin Memorial Medical Center in 2011 from stroke-related complications. Her husband, John Freudberg, sued the hospital, as well as doctors John Gozar and Michael Ferraro, claiming their failure to take appropriate action caused his wife's death. 


The trial turned on whether the physicians had acted appropriately in their treatment of Freudberg, with experts on both sides weighing in on whether the fatal complications stemming from the stroke were preventable. 

McEwan, Martinez, Dukes & Hall's Mary Jaye Hall, representing Gozar, first walked jurors through what she argued was the timeline of Freudberg's stroke, quickly highlighting potentially confusing information on the effects and complications surrounding a stroke.

Using this information as a base, she attacked plaintiff's case, including what she claimed was a key theory: that lowering Freuberg's blood pressure could have prevented a hemmorhagic transformation, the fatal complication following Freudberg's stroke.  

Describing the theory connecting blood pressure to hemmorhagic transformation as debunked, "old science," Hall said "From Harvard, to Yale, to the University of Miami, to Georgia, to UVA, in this courtroom they have told you hemorrhagic transformation is not a blood pressure mediated problem. It doesn't matter if the number is high, or low. It's reprofusion that you can't predict and you can't prevent," Hall said.

"And when it happens, the die is cast."

Hall also used the background information she'd highlighted earlier to attack plaintiff's causation expert, Dr. Tomassina Papa-Ruggino, who described the importance of proper response to a stroke using the term "Time is brain."  

"It's a cute phrase, a catch-phrase," Hall said. "It's one they hope that you will write down and forget what it really means. But that has to do with tPA (tissue plasminogen activator), the clot buster drug, that (Freudberg) was never a candidate for. Their experts say she's not a candidate for tPA. It's not an issue in this case. But they like the phrase 'Time is brain. Brain is Time,' because it sounds good.

"But it's not science. It's not the science in this case."

Throughout her closing, Hall never talks down to the jury or oversimplifies concepts for them. Relying on the background information she highlighted earlier in closings, and jurors' memory of trial testimony, Hall uses terms like "tPA," "hemmorhagic transformation," "reprofusion," with no further reminders of their meaning, confident that the jury remembers the terminiology and has not become confused. It's a tactic that allows her to spend less time rehashing general medical information and it ultimately led to a defense verdict. 

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Topics: Negligence, Medical Malpractice