It was the winter of 1994. Mr. Spencer was in his 8th year of trying Medical Malpractice cases. There were back-to-back trials scheduled in Allentown and then Pittsburgh, PA. When he showed up in the Lehigh County Court House, the defense and the Court’s staff were quick to point out that this was “defense territory.” The Judge’s chief assistant told Mr. Spencer that it had been quite a while since a plaintiff had won a malpractice case in that Court House.
This chief assistant went on to say that the last win for a plaintiff had been several years ago. It was in a case where a child had been brain injured as a result of poor medical care. And even though the injuries were great, the award was very small, only a fraction of the amount needed to provide for the child’s future care.
Jury selection was completed and the trial scheduled to start the next day. A major snowstorm delayed the start of the trial. With the start of the Pittsburgh trial in jeopardy, Mr. Spencer was forced to make last minute changes in the order of witnesses. For this reason, Mr. Spencer had to call as his first witness his expert, a Board Certified Pulmonologist (lung specialist) from Yale University.
This expert explained that what had happened to 32 year-old Robert Anthony was a tragedy that should never have happened. Robert had a relatively mild form of asthma that was well-controlled with standard inhalers. Yet, his treating Doctor of Osteopathy (D.O.) insisted on giving him continual low dose steroids in pill form. While these systemic steroids helped the inflammation in his lungs, they were also traveling throughout Robert’s body reeking havoc. Essentially, this Yale expert explained that steroids, even in relatively high doses can be effective, if given for short periods of time. But, that long term, even low dose steroids can be devastating, as in Robert’s case. Well controlled with standard inhalers, Robert’s asthma did not warrant the risks associated with long term steroid. This expert went on to explain that one very common side effect is the interruption of blood flow through very small arteries that go to major joints such as the hip or shoulder. In Robert’s case, he developed what doctors call “avascular necrosis,” which is a fancy way of saying that the steroids had stopped the blood flow to Robert’s hips. As a result, his hips’ balls and sockets had begun to die and crumple causing Robert great pain and necessitating bi-lateral hip replacement surgery.
His defense attorney called the defendant, Dr. Douglas C. Wiseman of Bethlehem, PA as a witness in the afternoon of the second day of trial. His self-serving direct testimony lasted to nearly the end of the day. Mr. Spencer’s cross-examination had to wait until the following morning.
From depositions prior to trial, Mr. Spencer knew that Dr. Wiseman was a D.O. who had never been Board Certified in anything. Board Certification is a doctor’s way of showing that he is proficient in a particular field of specialty. For example, the expert Mr. Spencer had called was Board Certified in Internal Medicine and further Board Certified in Pulmonology. As Mr. Spencer listened to Dr. Wiseman’s testimony, it was clear that he was very much trying to put the best spin possible on what really amounted to lack-luster medical qualifications.
Mr. Spencer had an idea. He wondered if Dr. Wiseman had possibly exaggerated his qualifications to his patients. At the end of the trial day, as he packed up his trial materials, Mr. Spencer went to the Court Reporter and asked for a local Yellow Pages. He looked to see if Dr. Wiseman had placed an Advertisement in the book. Sure enough, Dr. Wiseman had a full half page ad. In bold print at the very top of the page was “Board Certified.”
The following morning, with a poster-size copy of this Yellow Page ad hidden in the corner of the Court Room, Mr. Spencer began his cross-examination: “Dr. Wiseman, I did hear you correctly yesterday when you said that you were Board Certified in ABSOLUTELY NOTHING?” Dr. Wiseman had to agree. Mr. Spencer went on to get Dr. Wiseman to agree that Board Certification would have required further testing and study on his part. That it is a cherished title for a doctor to earn his Board Certification. Mr. Spencer used the Yale expert and his impressive to credentials to continue the point. Next he moved to the importance of honesty in doctors---indeed in everyone. Lastly, he got Dr. Wiseman to agree that a doctor should never lie to his patients and should never exaggerate his qualifications to his patients. With the trap well set, Mr. Spencer strolled over to the poster-size copy and placed in on an easel directly in front of the jury. He then approached Dr. Wiseman and gave him the Yellow Page Book opened to his advertisement. “DOCTOR, THIS IS A LIE---ISN’T IT?” However Dr. Wiseman tried to spin this lie, he only angered the jury more. The truth is he was lying to every person who looked at his ad and relied upon it to pick him as his or her doctor.
While it was true that Lehigh County jurors tended to be defense oriented, they were not so oriented toward a liar. They did fairly compensate Robert Anthony by awarding him $1,000,000.00.
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