Ch. 2 – Full closing arguments of defense attorney Neil Freund, Esq.

DEFENSE CLOSING ARGUMENTS, NEIL FRUEND, ESQ.

 Good afternoon, ladies and gentlemen. Before I start into what we call argument and what we’re supposed to tell you what the evidence was, want to tell you that –especially the alternates here, because those of you who are regular jurors, you’ll be with us a little bit longer. But all of you, ladies and gentlemen, I would like to thank you on behalf of Dr. Oster, Ed Heller, Dr. Vaughn, who from what I saw in the courtroom, did a terrific job.

 You know your job is as important in our society and our system of government as our men and women in Afghanistan. It really is. You probably feel like you’ve been through some war in this courtroom on occasion. But you have done a yeoman’s job for almost four weeks, which is an unusual length of time. Not only for you folks –surely for you folks, I get paid for my time. You don’t. And whatever your stage in life is, it’s still out of the ordinary for you folks. This is, for better or for worse, the ordinary for me. So thank you on behalf of my clients, Shady Valley Hospital.

I want to start from the beginning with you because I think it’s important. When we selected you folks as jurors, you’ll remember that before we even selected you, I played a portion of the tape to show you the beautiful family of David and Tina Lykins. I did that for a reason. And I’d like to share with you that reason again in case you don’t recall.

I did that because in this particular case, especially this kind of a case, it is so difficult, so difficult as a human, as you all are, as I am, and the older we are, the more experience with life we have. The more tragedy –the older we are, the more tragedy we’ve seen. The older we are, the more we know that bad things can happen to good people. Okay?

I know from my life’s experiences how I react to death of loved ones. I know how, if you had it –some of you surely have –how you react to death of loved ones. And yet we expect you yet we expect you to come in here and judge us Dr. Vaughn, Ed Heller, Dr. Oster and Shady Valley Hospital –judge us fairly and impartially. We do that. We ask that of you. And I know how difficult that is because I have –I’m not cold-hearted. I’m not cold-hearted. But I have experienced loss, and I know how it is. And then we bring you in here and we say –and the judge will instruct you later to decide this case on the facts without the normal compassion, and feelings and sympathy that you naturally have for a beautiful family. Naturally. And we expect you then we ask you to do that. And we ask you to decide the case on the facts.

So I want to acknowledge the difficulty and talk about the difficulty with you. And so I was thinking, okay, now, how are we going to go about this? How are we going to approach this? And I thought that we would approach it like the doctors approached this case.

I’m just going to put this up here for a moment. You can look at it. And I’ll bring it up this way a little bit.

And in fact, what you are doing in this courtroom is you are making a diagnosis. And how are you going to go about making the diagnosis? You’re going to look at the facts. And what are the facts in this case? The facts are the testimony admitted into evidence the exhibits that have been admitted into evidence. Then the judge l when he gives you an instruction is going to give you the law.

And then you’re going to make –when you go back in the jury room and you’re going to talk about what has been presented in this case. And there will be given recollections and things that you all think you remember. Some of you have written some things down. And then you are going to render a verdict l which is your diagnosis. And you are going to go about this the very same way that the doctors did when they made their diagnosis in this case.

While you’re making your diagnosis l I put down some things for you to remember. The judge will tell you that the plaintiff has the burden of proof. The judge will tell you that we have no burden in this case. Although I want to touch on that later because I think we have proved to you a lot.

I ask you, when you go back and deliberate this sounds pretty simple. It is simple. Because that’s the way I am and that’s the way I talk. I have no quotes for you. I have nothing like that. I also want to tell you I’m not going to take two hours.

Common sense and reason. That’s how -that’s how doctors make their decision based upon their medical training. That’s how I ask you to make your decision when you go back and talk to each other and deliberate with each other. Common sense and reason. Without hindsight and retrospect.

Now, why is that so important? Well, there are two things that bothered me about this case. The one I’ve just covered here, and that was the tragedy, the loss that was suffered here. That bothered me.

I think, how can I overcome that? And the only way is with facts and asking you to decide the case not on hindsight or retrospect, because we’re all pretty smart. Hindsight is 20/20. If we would know what the markets are going to do and we would be smart like these guys on television think they are and they’re really not. They have proved it. They have proved it big time in the last couple years, ·for probably all of us with our pension and is retirement.

But as the doctors made their decisions, when they made their decisions –and put yourselves in the shoes of the caregivers.

MR. BRANNON: Objection, your Honor. That’s a golden rule, obviously, and I hate to interrupt. But he can’t tell the jury to put themselves in the shoes of one party or the other.

THE COURT: You want to make a record?

Mr. Fruend: No.

THE COURT: All right. Sustained.

Mr. Brannon: I would ask the exhibit be put down as unfair argument.

THE COURT: All right. Let’s have a sidebar.

(Sidebar conference as follows):

MR. FREUND: Judge, it is not the golden rule. They judge the case as the facts were presented to the caregivers at the time.

MR. BRANNON: Put yourself in the shoes of the caregiver. That’s the golden rule if I’ve ever seen it in my life.

THE COURT: It’s not the golden rule.

MR. FREUND: This is not the golden rule.

THE COURT: You’ve said you think it was. It is not.

MR. BRANNON: Put yourselves in the shoes of the caregiver. If I had said, “Put yourself in the shoes of the plaintiff” that is unfair.

THE COURT: No, it’s not. And the Court will entertain objections during close, but it’s one of my pet peeves, and –a lot of objections during close. I’m going to tell you that. Make whatever record you need.

MR. BRANNON: Didn’t intend to object, but that is so clearly a violation of the golden rule for them to ask –that is the golden rule. It’s a violation.

THE COURT: Okay.

MR. BRANNON: You can’t put yourself in the shoes of the defendant.

THE COURT: It’s fair argument. Overruled.

MR. BRANNON: Then I’m going to do the same in rebuttal, your Honor. (Sidebar concluded.)

THE COURT: The objection is overruled. And you may proceed, Mr. Freund.

MR. FREUND: Thank you. And what I mean by put yourselves in the shoes of the caregivers is simply, when you’re judging my clients –Dr. Oster, Ed, Dr. Vaughn when you’re judging them, judge them from the information they knew or should have known –from the information they knew or should have known –as the caregivers at that time. And I put down below: At the time the care was given. That’s what I meant by this. At the time the care was given. Independent of what we’ve already talked about. Independent of compassion or sympathy.

Now, if we do judge the facts –and I do intend to talk to you about the facts –there are a couple things I want to talk to you about. Now, I don’t know –you don’t know me. But I’m pretty honest and straightforward, I think. And so I don’t like –I’m going to talk to you just very briefly about damages. I don’t like to talk about damages. And I don’t like to talk about damages because I don’t want you to think that we did something wrong. That’s why I don’t like to talk about damages. I’m going to talk about them very briefly, though, because I don’t know what you’re going to do. I have no idea. This is all –this is your decision. I can only present the facts and argue the facts.

So I just want to talk to you about a couple things. And it is not –not anything that is complex. I want to talk to you about the disability and fatality with the best of care. Indeed, I did in opening statement tell you about this disease. This is a terrible disease. And I don’t think any of you feel otherwise on that. This disease causes –once somebody contracts it, it will cause disability and in some cases it will cause fatality with the best of care. I don’t think anybody will disagree with that.

There is nobody, according to what the evidence is in this case, that was presented to you folks, that comes out of this disease who lives without a disability. There’s no evidence of that in this case.

Everybody comes out of this disease, at best, with a disability. With the best care. And some people actually die with the best of care, like Mr. Lykins. Die with the best of care.

So when there are figures being presented to you, millions of dollars, when there are figures being presented to you on these issues –for example, they are claiming millions of dollars for the two weeks that Mr. Lykins survived.

Think about that. If you start thinking about it, well, with or without claims against my client, would Mr. Lykins have been suffering? Of course. Would he have been in pain? Of course. Would he have been incurring medical expenses? Of course. Would he have incurred any less medical expenses? Just go back, and when you talk about this stuff –if you get that far, when you talk about this stuff, ask yourself: What proof did the plaintiff give us? They have the proof. What proof did the plaintiff give us that one penny less would have been incurred in this case?

Now, the only evidence you heard from that was the surgeon, who said he believes that the medical bills would have been the same on the 2nd if the diagnosis would have been made on the 2nd. But that’s what he said. He’s the only one –and I asked him. He’s the only one who gave you any testimony to that. So when you go back, and if you get this far and you talk about damages, and you talk about how much Mr. Lykins would have made into the future, the millions that they presented to you, talk about whether or not and what proof there is that Mr. Lykins could have continued to work in the same job that he was in. That’s what I mean by that.

I put down myositis and multisystem organ failure just to remind me in this case that the death certificate does in fact show that Mr. Lykins died from multisystem organ failure. The surgeon said in his opinion he had multisystem organ failure starting on the 2nd. The surgeon said that people –some people remember the person he was talking about? I think it was a lady –a woman that he almost cut in half that didn’t have it and survived because she didn’t get multisystem organ failure.

Mr. Lykins did. And according to the surgeon and according to the death certificate, that’s what he had. And some people get it and some people don’t. The time the diagnosis is made doesn’t seem, according to the surgeon, to have anything to do with that condition. That’s what he said.

Myositis. We have ranges on myosisis from 80 percent fatality with the best of care – it goes up to 80% and as low as 20%.

But you are being asked in this case to take the quantum leap that in this particular case with this particular individual he would have survived this terrible, deadly disease and not only that, he would have survived it without disability. And you folks, when you are using your common sense, are going to reject that.

And the same with the wages. If you use the common sense that some things are not what they appear –and that is all –that is all part of what I’m talking about. Yeah, it makes sense. Yes, lost wages. Well, if you really examine it and what information was given to you in this courtroom, just analyze it, if you get that far.

Next thing I want to talk to you about. Facts. No quotes. Facts. If you remember, we started this case –we started this case with –I think Dr. Roth was one of the first witnesses. We started this case with the septic joint. And a septic joint, septic joint, septic joint. And septic joint that we should have been thinking about. Sepsis or a septic process or something like that.

Let’s analyze what was going on there and what conclusions reasonably can be made. The records are clear, although in the last week or so we’ve been trying to hit a moving target. Now Mr Lykins didn’t injure himself lifting. We made it up.

We didn’t make that history up. That history is all over the records. Five or six times. The fact is that he had a history of injuring himself lifting.

Why is that important? When at presentation one of the experts –I think it was Dr. Henry –said in the emergency room, it’s a snapshot at a particular moment in time. Everybody agrees –all the experts agreed that history was the most important part of the case. Right? I think everybody goes along with that. History is the most important part of the case.

All right. What history was given to Ed and Dr. Vaughn? What history? History, a most important part of the case. Not anymore, because we’re backing away from that. But that’s what the testimony is. Hasn’t been the last few days. Oh, he didn’t hurt himself lifting.

Anyway, he hurt himself lifting. Roth said it. It’s in the –Roth’s office record. And –it’s twice. Severe left shoulder pain started suddenly after started sudden several hours after lifting.

Well, okay. So that’s our history. What do we make with that? What use do we make of the lifting? His shoulder began to hurt several hours later. So that is the history that Dr. Roth got. And that’s the history that we got at Shady Valley Hospital. And that was the history.

Why did I put this in? None of the classic signs of redness, swelling, high temperature, vitals out of whack. Why did I put that in there when we’re trying to make a diagnosis? Let me cover that one and the next one and the other things there.

Well, if we’re –when we’re making a diagnosis, and now he comes to us, Mr. Lykins comes to us from urgent care –just picture that in your mind. Coming to us at urgent care with that history. And Dr. Roth’s diagnosis was pain, if you remember, and rule out septic joint. Septic arthritis. That’s what it says: Rule out septic arthritis.

Now Mr. Lykins is corning to Ed and Dr. Vaughn. All right. When these physicians are trying to figure out what’s wrong with Mr. Lykins, we know he’s given two people a history of hurting his shoulder lifting. Now, Ed Heller he gives the history. And when incidentally, he put ice on his shoulder. Did you notice that in the –talks about left shoulder muscle, ice? Patient iced and took ibuprofen. Okay?

Left shoulder. But as the –oh, last few uays, we move from the left shoulder and started to –started to go down, didn’t we? Started to go down.

Dr. Roth talked about palpation himself. I said to Roth –Roth, they say, is a great doctor. Maybe he is. All that I can tell you is that when I asked him about whether or not he had any pain in his chest, that I asked Dr. Roth, “Did you palpate his chest?” And the answer was “Yeah.” I said, “How do you it?” He showed me. “Did he have any pain in his chest?” The answer was “No.”

Let’s move on. As we’re trying to make our diagnosis you know, we’re not superhuman. We’re not superhuman. That’s not how we’re judged, and that’s not the standard of care. But we accept the standard of care. So now we’re trying to figure out. Okay, we got a healthy fellow. A healthy fellow coming to us. A fellow who has no risk factors. Why is that important? That’s not bogus. Most of us or some of us as we grow older, we have risk factors. Whether we have hypertension or whether we have bad joints or whether we have injuries, prior injuries, as you would expect from septic arthritis, dislocations or football injuries or whatever it might be to cause septic arthritis. So he has no risk factors for infection, much less –much less the terrible disease of necrotizing fasciitis. He has no risk factors. Is that in their consideration? Of course it is. Does he have risk factors? Then you put that history of lifting, and then he’s got the rule out of septic arthritis.

So no risk factors or predisposing factors as we used in this case.

Now, we’re supposed to be thinking remember infection, infection, infection. One of the witnesses screamed that out at us. We’re-that’s what we’re supposed to be thinking. But there is no infection, infection, infection in his shoulder, and never was. And finally we debunked that. There never was anything wrong with his shoulder.

Was there attention drawn to the shoulder? Absolutely. Was it from lifting? Absolutely. Did he rule out septic arthritis? Absolutely. But then we have a witness, who says –who says –he was the orthopedic surgeon who has never cared for a patient with necrotizing fasciitis, never treated a patient with necrotizing fasciitis, wouldn’t know it if he’d see it, who says –who says –that he would have stuck a needle into the joint, a normal-looking joint, to aspirate after the X-ray showed no joint effusion, nothing.

You see, I can get worked up, too. You know, I sit there and I listen to this stuff –I’m sorry –but, you know, sitting there listening, I started off this case, it sounds like we’re criminals.

MR. BRANNON: Object.

MR. FREUND: It sounds like we’re criminals.

THE COURT: Overruled.

MR FRUEND: And it’s not right. Common sense. OK. So now not only does he have a history of lifting and – and I say classic signs. Here I’m talking about necrotizing fasciitis. But it’s infection too. Redness, swelling, high temperature, vitals. out of whack. That’s infection, too. Doesn’t have to be necrotizing fasciitis.

So he’s got a normal-looking shoulder. And, up to this point, no problem with the chest. No pain in the chest after palpation. By both –if you remember, in questioning of Ed, we had this. Do you remember that? In questioning by Dr. Vaughn, we –we had this. And I said –when he’s talking about palpating with the stethoscope, if you remember, I asked Dr. Vaughn, “Did you palpate his chest like Ed Heller?” He said yes. And then I asked him then, “Did you use the stethoscope?” And he said yes. And I said, “Did you use it in all places that Ed Heller said?” Yes. But now we’re going that Dr. Vaughn only palpated the chest with a stethoscope.

And if you go back and think about that testimony, you will know that what I’m telling you is accurate.

Okay. Now, the testimony here by the plaintiff is that we were supposed to pick up a rare disease. A rare disease. And the testimony is and I think Dr. Miller is probably surely the most learned, has done the most investigation, the most study, the most writing. He basically told us -and I used his number. He basically told us that about 3,000 in a year, of which 50 percent of those have no portal of entry. I think that’s what he said. So I put that down.

So does rare disease make a difference? Of course it does. Is it an excuse –is it an excuse on a disease that should be picked up? No. If I have a rare disease and I go in, I would hope that the disease would be picked up. But remember, they get one crack at it. They get one crack at it. A snapshot at a particular moment in time. And-and the disease is dependent upon that moment in time. So what you’re going to be doing when you go back and discuss this case, you’re going to be trying to decide in your own minds whether or not Ed and Dr. Vaughn should have picked this disease up.

And then I put down: No complaints, no findings, of chest abnormality or pain. So now we’ve got a history. We have nausea and vomiting and history of fever, history of lifting. Nausea and vomiting and history of fever. And with that, the plaintiff says –the plaintiff says –we’re supposed to pick up this infection. Okay? That’s how we’re supposed to pick up an infection. Where there is 15,000 – 1500 of these in the United States with 300 million people per year. We’re supposed to pick that infection up. So I thought what I would do, when you’re making your diagnosis and trying to figure out the testimony in this case, I thought I would highlight some of the testimony given in this case.

When I was asked to represent Dr. Vaughn and Dr. Oster and Ed and Shady Valley Hospital, I decided –I decided that I wanted to find the best experts to review this case. So I got the literature and –to see who wrote more than anybody else. That was Dr. Miller. And then I thought –I thought, okay. Dr. Miller is an infectious disease specialist. And if I and he, I think you’d agree –you’re going to have the CVs back there if you care to look at them –he’s written more, studied it more, knows more than anybody.

Then I thought, okay, but –but Ed Heller and Dr. Vaughn are not infectious disease physicians. They’re emergency physicians. Emergency medicine physicians. So I thought I’m taking you through my process. You may think I did wrong. But I’m just taking you through my processes because it makes a difference who comes into this courtroom, I think, and gives you opinions.

Then I thought, okay, I wonder if there’s anybody out there who is an infectious disease person and an emergency medicine person. That was Dr. Talan. Dr. Talan is the fellow from UCLA. Did you notice he had sandals on? Couldn’t believe it. From California. Figures. I was hoping he would stay in the box and not come out.

But anyway, he is one of two –one of two in the United States who is double boarded in emergency medicine and infectious disease. One of two. And I got him, and I had him review the case. And he said the case was defensible, as did Dr. Miller.

Then I thought, I need somebody local. I need somebody local. So I went to Ohio State and I had Dr. BUCHANAN review the case. Assistant dean, professor, in emergency medicine, the works. And he gave me a favorable review.

And I thought –I’m going to do it some more. And I sent the case to Dr. Henry. Now, Dr. Henry is from Ann Arbor. I thought, I wonder what the folks will think about Michigan? And I decided that he had the qualifications. Now, his qualifications were a little different, though, because he was boarded in emergency medicine. But Dr. Henry happened to be president of the whole United States American College, 22,000 of them. He was president of the American College of Emergency Medicine in ’96, I think.

So with Henry, Dr. Miller, Talan, Dr. Buchanan, then I thought, we have got an issue here also with Dr. Oster. And I went to Ohio State. There’s a sports medicine doctor to the basketball team and some others. And he reviewed the case and gave the same opinions. So he teaches at Ohio State. All teachers. All teachers. All professors at their universities. All familiar with the disease. From allover the country. And that’s how I presented to you the standard-of-care issue and that is how you’re going to judge Dr. Oster, Ed Heller, and Dr. Vaughn. That’s how you’re going to judge them on standard of care. Will these guys –they happen to be all guys –will they do –should they know what the standard of care is for an emergency physician? The answer is unequivocally yes.

On the other hand –on the other hand, if you think back, we had four witnesses coming from the find-an-expert group in Maryland. We had Dr. Belman, we had Dr. Kane, we had Dr. Schmultz, and we had Nurse Remsio? All of them came from the find-an-expert group in Maryland. And that wasn’t by chance. All right? That was not by chance.

And the other two experts came from Dayton, Ohio. Dr. Smalley, a friend of Mr. Brannon.

Went on a trip to the Bahamas with him, went on a trip out west with him. Dr. Mavis, a political friend. Dr. Smalley is the one who gave us a whole slew of opinions but has never –orthopedic surgeon, much less –but never saw one, touched one, or treated one.

Dr. Mavis did, according to what he said. One who had an amputation, one who he lost track of, and another who he described as maybe functional. He’s lost track of him too.

We’ve had Dr. Belman who came in and gave you a whole bunch of opinions. And Dr. Belman had one who died and one who survived with an amputation. And the other one –I forgot to ask him. I don’t know.

Then we had Dr. Kane. Dr. Kane. Let’s talk about Dr. Kane. Julie, if you remember, asked Dr. Kane some questions. I think I’ll just hold these because it’s easier.

MR. BRANNON: Could I see it, please?

MR. FREUND: Sure. I’ll hold it up so everybody can see it.

MR. BRANNON: Go ahead.

MR. FREUND: Dr. Kane was asked –

remember, we got into this huge argument about whether vomiting could be caused by something other than sepsis. Dr. Kane – that’s their expert – he said yes. Other than could be – this is Dr. Kane – could be a gastrointestinal virus causing vomiting, in the ER record. Or pain, which he had. Or certain medications like ibuprofen, which he had. Which we didn’t know about.

Dr. Kane also said –this probably shouldn’t be highlighted because it wouldn’t make sense. I’m -more interested in the bottom. Can you folks see it back here so Mr. Brannon can see it? Okay.

In this case, we’re aware that Mr. Lykins offered a history of either lifting a patient or lifting oxygen bottles at work, which he mayor may not have attributed to injury. But he did give that history. Answer: Right.

And would you agree that if this history was given to the physicians, that that might give them a reason to attribute the pain in the shoulder to it?

His answer was: Oh, yeah. I think that from trauma, like some kind of strain, had to be one of the considerations, yes. So you would agree with that –that that wasn’t a deviation from the standard of care for those physicians to consider that he had a strain.

Correct.

Well, for example –I’m going to stop there just for a second to comment about that. That’s what we’re talking about in this case. That is what we’re talking about in this case. Then we went on: And you told us that the pain in this case, or your understanding from the records, was that the pain actually started several hours after this physical activity.

Yes. That’s true. And that is consistent with a muscle strain, isn’t it?

Question: So when you do physical activity, you may not feel the effects for several hours.

Right. I mean even the next day.

Right.

Well, their expert didn’t think there was anything wrong with our diagnosis. Let’s go on:

Did this patient or Mr.. Lykins get worse between the time of his discharge from the hospital until he returned the next day?

Yes.

Actually, his condition changed very rapidly over several hours. Yes. Now why does that make a difference?

Let me just talk about that. There is no question here that Mr. and Mrs. Lykins are not considered to be at fault. Not suggesting that in any way, shape, or form.

But when they were discharged from the hospital at 1:00 o’clock in the early afternoon on the 2nd, they were given the specific instruction to return if the condition got worse. Well, it surely did get worse. And it got worse, according to Mrs. Lykins’ own words, about midnight. Okay?

Now, what are we supposed to conclude from all of that? Going from 1:00 o’clock at the time of the discharge to about 10:00 o’clock the next day. All we can tell you is he was out of our care and out of our treatment. And at no time –at no time did a paramedic –don’t forget, we spent a lot of time –Mr. Brannon spent a lot of time talking about that he was a paramedic. Think about that. Here’s an individual who, from the testimony of the plaintiff, we’re supposed to believe his eyes were rolling up when he was in our institution on the 2nd. He had available to him every ambulance in Fairborn if he would have chosen to. He had available to him relatives, brothers who were in the fire department. He had available —

MR. BRANNON: Object to this, your Honor. It’s beyond the scope of the Court’s instruction. It’s not part of the evidence.

THE COURT: Overruled.

MR. FREUND: He had available to him the ability –if we are to –when you’re considering whether his condition got worse, and we think it did –the opportunity to seek medical care elsewhere, anywhere. But if we’re supposed to believe that his condition was so bad, he didn’t want to go to the emergency room on the 2nd. We know that from the record of Dr. Oster, on the record, where he said he injured his shoulder. And when you’re going back there and using your common sense and you’re discussing what all of this is about, and whether or not Shady Valley Hospital and the doctors are responsible for the care in this case, for our two and a half hours, from 10:30 until

1:00 o’clock, the clock ticks all the way around for almost 24 hours before the patient returns to us. And 19 hours before the patient ever seeks any additional medical care. Okay?

When you’re thinking about that, just think about, if the condition was as bad in the hospital as it was suggested to you, which we reject. We’ve got –we’ve got somebody here who has some medical training. I would suggest to you that his condition did worsen significantly at midnight on March 3rd. It did. That’s when it significantly turned. And by 4:00 o’clock he had swelling, and by 6:30 he had discoloration and swelling and heat.

Is it your opinion in this case –this is Dr. Kane. Is it your opinion in this case that he did not have necrotizing fasciitis on the 2nd? Right.

Let me show that to you. Again, this is Kane. This is their expert. It’s your opinion that he did not have necrotizing fasciitis on the 2nd.

Right. Yeah, I don’t think – I don’t know for sure. But I would say more likely than not he didn’t.

So would you agree with me that surgery wasn’t indicated on the 2nd?

Answer: If he didn’t have necrotizing fasciitis, yes. That’s their expert.

Dr. Jones. Their expert. Now if it’s OK for Dr. Jones to not diagnose necrotizing fasciitis for 24 to 48 hours, I respectively ask you folks, why is it not standard of care to diagnose it for 19 hours? The only reason is that he didn’t come back until 19 hours went by.

Let me ask –let me read this for you:

As a matter of fact, you can think of patients you saw who ended up having necrotizing fasciitis who took you 24 to 48 hours to diagnose?

Yes.

And you’re not even sure in this case you would have made the diagnosis of Mr. Lykins within 24 hours.

You remember the claim here is the delay was 19 hours. And her answer was: I think diagnosis would have been made within 24 hours.

Well, it was.

I think a diagnosis would have been –I think the –I don’t know I ever said I wouldn’t have made a diagnosis. I said –I think I said that a diagnosis, had his symptoms been paid attention to, it might not have been a direct route to a diagnosis, it might have been circuitous, but I think a diagnosis would have been made within that first 24 hours.

Folks, we did that. And when you go back and you talk about it again among yourselves, we had no opportunity to make a diagnosis after 1:00 o’clock.

And the snapshot of time when you’re judging my doctors and Ed Heller in that snapshot of time, did he have sufficient signs and symptoms to make the diagnosis when he was at the hospital?

Dr. Krispo, a treater. So when he asked me if the patient’s illness had been diagnosed 19 hours earlier -this is Dr. Krispo’s answer – would not have survived. I cannot answer that  specifically for Mr. Lykins.

Dr. Krispo is telling you there -you can read it –Dr. Krispo is telling you there if the diagnosis would have been made on the 2nd, he does not know if this patient would have survived. Does a white blood count make a diagnosis of infection? No, it doesn’t. You have to include this information with all the other information to make a diagnosis.

Krispo again. This is where Dr. Krispo told us about how he thinks the infection started.

And he says here: Certainly, if there is no bacteria in the muscles, you don’t get an infection. But if you have an injured muscle and you happen to have bacteria that somehow gets into your bloodstream, which is not a very uncommon event, it can localize in the tissue.

The question is, are you going to believe Dr. Krispo and Dr. Miller about whether or not he had a strain? Because they both say that he had a strain which allowed –I’m almost done. It’s okay. That’s okay. It’s okay.

I understand, so don’t worry about it. I have that ability sometimes. But I do –I’ll get through this.

I’ve only been about an hour. Right?

THE COURT: 45 minutes.

MR. FREUND: I’m going to get through it in just a little over an hour. Okay? About 15 more minutes. Okay?

The point I want to make here is very simple. That is, he did have a muscle strain, at least according to what Dr. Krispo says and what the real expert says, and that’s Dr. Miller.

And let me move on. The other things this is Dr. Miller. The only reason I did this was just to show you that that ibuprofen can mask the symptoms and it can mask a fever, and it can also mask redness and swelling. And it also causes nausea and vomiting.

This is Dr. Miller again, where Dr. Miller in fact gives the opinion that he believes that Mr. Lykins strained his shoulder, that it was referred pain from the pectoral muscles and that the strep A seeded –that the strep A seeded in the area because of the muscle strain.

By the way, I know it’s not easy. This is not easy for you. And I want to get through this as quickly as possible.

This is again Miller. And this is about the CBC. And Dr. Miller testified that the CBC on the 3rd –that the WBC on the 3rd was normal. He further testified that the CBC on the 2nd would have been normal. Now we have talked about this CBC business at length.

And here’s where he says. Just take you to the conclusion: I think the number of neutrophils in the blood is normal. When you go through the white count, which was normal, and then you multiply the white count by the neutrophils –that’s what he says here. That’s why I blew it up for you.

This is bunk. This is Dr. Miller again talking about the left shift:

You cannot say the left shift means infection or is supposed to mean infection. You can’t say this is Dr. Miller: You can’t say somebody is in a left shift when you have no bands.

We’ve talked about that at length. I blew this up. I’m going to keep going.

Let me just give you the bottom line on Miller. Now, this is a fellow who knows more about this disease than anyone.

I asked him his opinion –after I go through his training, education, and experience, right here –whether or not the healthcare providers at Shady Valley Hospital could have made the diagnosis of necrotizing fasciitis or necrotizing myositis on March 2.

First, do you have an opinion?

Answer some objections.

I have an opinion. And I think –don’t think they could have made a diagnosis. And I blew this up for you because it’s the key to the case, where Dr. Miller –I think you probably remember where he said this:

I had a very good medical professor, rheumatologist, told me –and it’s true –that there are diseases where at one point in time you cannot make the diagnosis and, therefore, you need to see the patient repetitively in order to establish that. That’s common, very common.

I would suggest to you whether -whether you accept the idea that he suffered a strain and that’s why the strep A seeded or whether you believe that the strep A seeded for some other reason, when you go back and talk among yourselves and discuss this among yourselves about signs and symptoms –what was there for these doctors and Ed Heller to diagnose? And you will decide that the signs and symptoms were not sufficient to even suspect infection, much less that deadly disease.

And then if you take The surgeon and plug in The surgeon’s testimony, who actually did the work on Mr. Lykins, that he would not have done would not have done surgery on the 2nd. That he would not have cut on what looked to be perfectly viable tissue.

You would agree that the earliest time a diagnosis could be made was probably at about 6:30 in the morning when he actually had the discoloration, the swelling, the puffiness in his pectoral area.

That’s how I ask you to go back to make your diagnosis.

Couple other things. We should have done a CT. We covered the CBC. We would have done a CBC –if anybody here believes that when a patient comes to us –in today’s society, patient comes to us and says to us, “We want a CBC.” If anybody believes that we won’t do it, then you -then maybe we’re in a different world. In today’s society –or a CAT scan, who really asks for it. Somebody who is alert and oriented, with Dr. Roth, who’s alert and oriented with yourself, who is described many times, seen by three different nurses, who is discharged in improved condition –five medical care providers at Shady Valley Hospital –who is being suggested to you that we blew him off. Five. Not one. Five. Who it is suggested didn’t care. Who it is suggested didn’t care.

Probably in hindsight and retrospect, if I had something to do over again in this case, with my client, you know what it is? And that is I would tell Ed Heller, “Ed, don’t use the word overreact.” I would. Because that was an unfortunate use of the word. And I want to cover that very briefly. By the time –by the time –by the way, what that means is that Ed believed that the symptoms did not coincide with his medical findings.

And that’s where Dr. Oster fits in. Dr. Oster –when you’re making your diagnosis in this case –Dr. Oster had a great relationship with them. I think you can all agree with that. They even wanted to go see Dr. Oster the morning of the 3rd after they saw the swelling and discoloration, the whole works. Refused to go to the emergency room at 4:00 o’clock and wanted to see their family physician.

Now is this is this a family who believes –who believes that there is really something serious going on here? Just ask yourself when you talk about that. Is this a family who really thinks there’s something serious going on?

Why did I bring up the strep? The conversation between Dr. Oster and Mrs. Lykins on March 7th. Why did I bring it up? I brought it up not to show that –somebody was somehow responsible within the household that he contracted this terrible disease. Not for that reason. But for the only reason, to show you that when you’re thinking about this and using your common sense, when you’re trying to decide whether Dr. Vaughn and Ed Heller did the right thing here and tried to make a diagnosis, that they weren’t thinking infection. Nobody was thinking infection on the 2nd, because if anybody would have been thinking of infection on the 2nd, they would have discussed the fact that they had strep at home. Diagnosed strep. That’s why brought it up. Think about it. If they were thinking infection, there would have been discussion at home with Dr. Roth, and with Ed Heller and Dr. Vaughn about that. Without a doubt. And I would suggest to you that the evidence in thts case from the medical records, from the logical testimony, is infection was not a consideration other than the noninfection in the left shoulder joint.

A cou0ple more things then I’m done.

You’re going to be given interrogatories. Lots of instructions.

The first interrogatory says: Have the plaintiffs met their burden –remember I told you they have the burden by proving by a greater weight of evidence that Todd Oster negligently departed from accepted standards of care in his care and treatment of David Lykins?

Now, what did Dr. Oster do? First of all, he saw, on the morning of the 3rd –let’s go back to the morning of the 2nd. What Dr. Oster’s involvement was, in a nutshell, is he saw –he got the call –his staff got call on the 2nd. He wanted to send him to the emergency room. He didn’t want to go to the emergency room. Not because he was mad. Talk about that when you go back there. No, he wasn’t mad at Shady Valley then, if we’re supposed to believe that’s true. He hadn’t been there. He doesn’t want to go to the emergency room.

Then he sends him to urgent care. That’s his involvement. The next involvement is the call that Ed Heller made to Dr. Oster where Dr. Oster said, “Well, I’ve had a couple occasions when the symptoms cannot be clinically related to my medical findings.” That’s his involvement on the 2nd.

And then on the 3rd, in the morning, 8:30, sees –thinks he’s really sick and sends him to Shady Valley Hospital. And that’s why he got sued. That’s the extent of his involvement. That’s why he got sued.

So I respectfully ask you, when we’re talking about whether Dr. Oster met standards of care, you can answer the question one of two ways.

Did he meet tstandard of care? Yes or no. Yes, you sign it and go to the next question. The next question is: Did Dr. Oster cause harm? The answer to that is no. Then you go to Dr. Vaughn and Ed Heller. When you’re judging Dr. Vaughn and Ed Heller, I only ask you to judge them from the snapshot in time they had with the disease. If you believe –I don’t know whether he had the disease on the 2nd. I don’t know. I do think he had a strain. But I don’t know whether he had the disease. I can tell you respectfully if he –if he did have the disease, he didn’t have the signs and symptoms sufficient to diagnose it. And I don’t think I would suggest to you –I just don’t know. But I can ask you and would suggest to you that when you get to interrogatory number 4, dealing with Dr. Vaughn and Ed Heller, that they met standards of care. And I would suggest to you that the nurses met standards of care. I believe that we have demonstrated –although we don’t have the burden of proof, I think we have demonstrated to you clearly, with the facts, as they existed for these doctors at the time that they met standards of care.

Now, I could go on and try to convince you with more facts. I could talk about sed rates. I could talk about CPKs. I could talk about all these things they’ve brought up.

But I ask you, when you go back there, to use your collective judgment and discuss with each other the things that I missed. When I sit down, I’m finished. And I don’t get to see you again until you have a verdict. That’s pretty hard. Going to be hard for you too. But that’s hard. And I’d like to go on, but you folks have listened to me long enough.

On behalf of Dr. Oster –hopefully this is some help. Because I know you’ve taken good notes. Hopefully this is good help.

When you go back there and you are deciding about whether –the doctors and Ed Heller –

and Shady Valley met standards of care, judge these folks –judge these folks as the facts existed and as the signs and symptoms existed at that time. And if you do, I am convinced that you’ll make a decision that’s favorable to them.

This is not –this is not send a message to the world. This is not a “send a message to the world” case. I expect that you’ll treat Tina Lykins and her family fairly, and we simply ask the same.

So, ladies and gentlemen, it’s been a long four weeks. I thank you kindly for your attention. I hope I haven’t bored you too much. And I look forward to your verdict. Thank you very much.

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