Ch. 2 – Full closing arguments plaintiff attorney Dwight Brannon, Esq

Plaintiff closing arguments:

THE COURT: So we ask for your attention to these closing arguments. And we all thank you for your patience and your long suffering. And you’ve been here now four weeks. And we’re all just very grateful for your participation. Now, Mr. Brannon we’re ready for the plaintiff’s closing argument.

MR. BRANNON: May it please this honorable Court, defense, Tina Lykins, ladies and gentlemen of the jury.

You’ve heard me say stop, look, and listen. Perhaps you wondered why I would use a simple phrase: Stop, look, and listen. Those are ordinary words for ordinary people. And I’ve determined that we’re all ordinary people. We have to exercise ordinary care for one another.

It’s been said to whom much is given, much is required. To a physician is given the very special status in our community. They’re required to stop, look, and listen. A physician cannot go speeding down the street, run a stop sign, then run a red light, then pass in a no-passing zone, particularly when there’s two medical policeman on guard.

A doctor cannot come in and tell you, ladies and gentlemen of the jury, that he is allowed to tell a patient who is sick to go home. A hospital can’t do that. We expect a lot from our medical healthcare providers.

We pay a huge amount of money for that protection. And we are going to pay more, and we’re not going to pay more just to allow doctors to make higher salaries or hospitals to build more buildings or make more money. We’re going to do it for ordinary people. People like you and me. People like the doctors.

Because, you know, I’ve come to the conclusion –again, ordinary people. That’s all we all are. And once in a while we get called upon to do extraordinary things. A physician, often; a paramedic. Seldom does an attorney get an opportunity to participate in a case like this. I’ve waited an entire career, and I’m simply an ordinary person without great gift or intelligence, but simply bringing in the evidence as I understand it and believe necessary for you to understand so that we don’t have in a courtroom a gamble. Courtrooms and jury trials are no place to gamble. But then, again, neither is medical care, doctors, doctors’ emergency rooms, or phone calls between doctors about health care. All of those things.

Ladies and gentlemen, they gambled with David Lykins’ life. They gambled by throwing away or destroying forms. They gambled by refusing to read. They gambled by refusing to provide to you any protocol, procedures, other than, “I don’t recall” or “Somebody else would have told me” or whatever.

You heard the testimony. And I will depend upon you collectively to remember the testimony. I trust a jury. I don’t trust doctors to create the standard of care. I trust a jury. You know what? The law requires a jury to establish standards of care. Because something very special is happening here. Very special. A jury has been called, convened to determine the standard of care. Yes, they gambled that an ordinary jury couldn’t figure out the medicine in this case based upon the physical facts, the testimony, the missing evidence, and what is more likely than not. They gambled. But you know what, ladies and gentlemen? My job here is simply to try to provide you with information, not simply to provide you with my emotions. I often fear in my advocacy, I convey too much emotion. But that’s me. I’m just an ordinary person to do that. I’m sure there’s times you would have liked to have told me to sit down.

I’m not the most articulate person that ever walked the face of the earth, nor do I try to be. I seek out representation of ordinary people. And once in a great while I am blessed with an extraordinary person –an ordinary person doing extraordinary things. I knew David Lykins. I know Tina Lykins, and I’ve gotten to know the family.

Not meaning to be callous, but I’ve gotten to know the medicine, and I’ve gotten to know the doctors. You have too. Who came into this courtroom to reveal, and who came in to conceal? There’s like a Plexiglas window between you. My job is to advocate. My job is some education. My job is to assist you on behalf of my client.

And if I have been emotional on behalf of my client, I make no apology. We had some things that have occurred that I simply didn’t feel comfortable with and often expressed myself. I believe that a person should say what’s on their mind. And I believe I should tell you what’s on my mind.

And when a jury comes together with that magic –with that magic –to weigh the evidence and understand it, that is justice. Thomas Jefferson said the jury trial is more important than the vote. I don’t know if I agree with that, but it’s just as important as the vote. Because it has been juries throughout our entire, I believe, 226-year history now –I’d have to check that out; think about it –that have determined that we would not have trials –laws where children are required to work long hours, they would not have pain and suffering needlessly, that those that are in positions of authority or in the professions shall not dictate to the people. We are a government of the people, by the people and for the people. And you will be acting on behalf of this entire community when you determine if these defendants met the standard of care. Did they use what would be the ordinary, reasonable methods available to diagnose, care and treat for David Lykins.

You’ve heard the evidence of what they claim the standard is. All the evidence from all the experts, what they claim the standard is. But it is your collective judgment. It is the record that you will write that will determine standard of care.

And if you write a record that speaks loudly, strongly, boldly and truthfully, then you will write a record that will do more to upgrade or establish or at least maintain standard of care than any multimillion, 10-hundred-million-dollar study or surveyor government action.

Because if you write the record, every time someone arrives in that emergency room, every time someone arrives by ambulance, by car, with a condition where they expect to be treated and not ignored, where they expect all the information to be available and not ignored or destroyed or whatever, David Lykins will be there. His life will not be in vain. Not that his life was, but his death was. He will be a reminder of all times. He shall be like a sentinel as he stands there at that emergency room door and for all physicians and all hospitals and all people that are family physicians that have an opportunity to help for their patients.

Ladies and gentlemen, you’re about to do something extra, extraordinary, because as you collectively get together, it is very special. And what will you decide in this case? Well, you decide do we send people home, do we send David Lykins, with the bells ringing, whistle blowing, the lights and the guard flashing, into that train of that horrible infection to certain death? Or do we listen. Do we collect a true history? Or do we let physicians and healthcare professionals just simply gamble and believe they can come into the courtroom and fool the ladies and gentlemen of the jury. Oh, it happens. But not very often. But it depends upon your diligence, and I know that and thank you. I have never seen a jury, for more for 30 years, pay more attention. I wish all of us could go back and deliberate. I know three-quarters of you, six of the eight, must come to a verdict in order to arrive at a final disposition of this case. But I’ve never seen a more attentive or respectful jury. Your adversary –and for that task, as difficult as it may be, I want you to remember one thing. Thousands and thousands of juries have preceded you. They have done the difficult task. They haven’t found it too hard to make justice. They haven’t found it too hard to set standards of care.

And they haven’t found it so awful that they couldn’t stop, look, and listen, and see what’s here. Not a drive-by diagnosis. Not a guess. Not a probably –or not a possibly. Not a maybe. But we’re looking for probabilities.

Now, what is this case about? It’s about responsibility and accountability. It’s about what’s right with America and what’s wrong with America. David Lykins was everything that was right with America. He was responsible. He would take his time. When it was time to unwind Mr. Johnson back there, Curtis Johnson, from that auger, those many hours when he would talk to him and take it slow and easy and figure out how to get him out, he would do it. When it was difficult to fix that situation, he took his time. He stopped, looked and listened. When he was asked to fix a police department, he took his time. He talked to the community. He stopped, looked, listened, and he was personally responsible.

Ladies and gentlemen, I think personal responsibility is probably the greatest attribute, protector of our society than anything else. Be it personal responsibility or professional responsibility. What’s right with America are David Lykins, that care about how people are treated. They care about how their job is worked. They care about making it better for others. They care about their families, care about their children. That makes the extraordinary effort to do their very best.

Andrew Carnegie said the average person puts only 25 percent of his energy and ability into his work. The world takes its hat off to those who put in more than 50 percent of their capacity and stands on its head to those few and far between souls who devote 75 to a hundred percent.

Ladies and gentlemen, when you run through a stop sign, barrel through the red light, pass in a no-passing zone, it does you no good to say, oh, but for a thousand times I stopped, looked, and listened, and I only did it this time.

That’s right. A physician is only as good as his next patient no matter who that is. It doesn’t do any good to say, “I don’t recall, but I always stopped there, so I must have stopped.” It doesn’t do any good to bring in casts of thousands to say, “He normally stops.” It doesn’t do any good to bring in others to say, “Well, if he doesn’t stop, he’ll usually have someone out there to stop him.” It’s really no different. It really isn’t. It’s more common sense than anything.

I think it was probably said best –we celebrate who said it –do unto others as you have others do –as you would have others do unto you. Would we want someone to take their time and listen, look at the signs and symptoms –before I get into the evidence and probably repeat what you’ve heard again and again and again. Or we would expect someone to say, “I normally do this. And I’m sure, even though it’s not in the records or I didn’t write it, I did it, and it was right. And I’d do the same thing all over again. And I wouldn’t use any other tests. And I wouldn’t keep him.”

You know, ladies and gentlemen, what they have done, they have come in here and said while the Titanic was sinking, and the plaintiffs did not put the chairs in order on the deck. That’s what they’ve done. But I’m proud to say something to you. And I think you will be happy. His honor has ruled that as a matter of law Tina Lykins, David Lykins, and those four children, who I hoped wouldn’t have to face the possibility of maybe someday looking at a record where maybe they caused their father’s death. Ridiculous. But his Honor has ruled that they met their duty and they weren’t negligent anyway.

So all that stuff you’ve seen is like ink in the water. I watch Discovery Channel quite often. I’m entertained by different animals, things like that, and enjoy watching those shows. I see an octopus. Gets in trouble. He squirts a bunch of ink in the water, and he buzzes off. Ladies and gentlemen, the defense in this case is like the ink in the water.

What has been the defense in this case? Well, this disease is rare. Everyone up there indicated that they knew that this disease exists and that a board certified, qualified physician, level-l hospital should recognize it. That any deep-seated infection is potentially dangerous. Rare? We heard one of the experts tell you he does 75 –75 a year. Use your recall on that. We heard testimony that they expect to see them. You’ll have some evidence on that. And can you make your own minds up from that as to what the valley had, what the hospital had to give to the doctors, what they paid attention to. Jiminy, there may be a lot of diseases out there we never introduced. But somebody as sick as a dog, throwing up, unbearable pain, has a history of fever, we send them home?

How in the world is our medical profession going to be able to diagnose biological and chemical problems if we just –if they don’t see redness and heat? Think of all the infections you know about, everything that’s in an infection that doesn’t have redness and heat. Think of any one of them that doesn’t require standard laboratory or CBC.

No, this case is not about greedy lawyers forcing plaintiffs, Tina Lykins and her family, to seek justice. Justice is not always pleasant for those that have justice coming. But this isn’t about that. This isn’t about going out and creating that. The defense would want to play on the bias against lawsuits and the bias against lawyers. There’s about 60,000 lawyers across this country that do what I do. We’re not plastered on the bus. We’re not the ones out looking. But there’s many lawyers that are very necessary to bring evidence in to allow you to establish and maintain the safety of the community and to do justice for those that have been the victims of negligence. And it is part of our system of justice and always has been that that right is inviolate and it is there to be used or our society would cease to exist as it is.

That’s right. Believe it or not, all damages that we all know from our common sense and experience.

I can only hope, as I want to reserve some time, that I’ve done this family justice, that I’ve done David Lykins justice, that I’ve done this case justice. I hope that when it goes to you, you too will do it justice and you too will write a record for which the community can be proud, a record for which Dave Lykins can stand as sentinel in the emergency room and the doctors’ offices reminding them of their awesome responsibilities. To whom much is given, much is required.

With my apologies to –I want to read a little bit to you –may have some photographs. Again, ladies and gentlemen, you’re going to be instructed not to decide this case on sympathy. We don’t want your sympathy. We had plenty of sympathy at the funeral. We had plenty of sympathy when the baby was born. We had plenty of sympathy. Easter, Thanksgiving, Christmas, every otherwise joyous occasion that would have been that will not be. No, we don’t want your sympathy.

But I do want you to understand –if you want to look at the video, fine. You saw it before. There are a lot of –there is a lot involved in this case. There is a lot of hurt. There is a lot of damage. There is a lot of pain. And justice required compensation.

So, as I read this –that’s David. Put David up there. There’s Tina. You got the kids and David.

I’m going to apologize to Walt Whitman, who I believe I’m going to quote just a little differently because I probably should read this after the jury verdict comes back perhaps not before. Can you all see that?

Why don’t you hold that for me, would you? One hand.

We’ve got Tina here. Tina there. I just got to show you that picture of that baby. Not for the sympathy. But because that baby is there. That’s a reality. That’s a fact.

I address it to David Lykins. My tribute will be: Oh Captain, my captain, our fearful trip is done. The ship has weathered every rack the prize we sought not yet won. The port is near, the bells I hear, the people all exulting, while follow eyes the steady keel, the vessel grim and daring; but oh, heart, heart, oh, the bleeding drops of red, where on the deck my captain lies, fallen cold and dead. 0 Captain, my captain, rise up and hear the bells. Rise up. For you the flag is flung, for you the bugle trills. For you, bouquets and ribboned wreaths, for you the shores are crowded, for you they call, the swaying masses, their eager faces turning. Hear Captain, dear father, this arm beneath your head. It is some dream that on the deck you’ve fallen cold and dead. My Captain does not answer. His lips are pale and still. My father does not feel my arm. He has no pulse nor will. The ship is coming in to anchor, its voyage is closed and done, from fearful trip to the victor ship comes in with object won. Exult, oh shores, and ring the bells. But I, with mournful tread, walk the deck my Captain lies, fallen cold and dead.

What was the prize here? David Lykins wanted three things in his life. One, he personally wanted to do his very best for his mankind. He wanted to be reasonable, responsible and accountable. He didn’t want to be ignored, nor he didn’t want to ignore anyone else. He wanted security for his family. Worked hard at it. Triple jobs. I respect that man. And still had all that time for his family. Above all he wanted to be there. He wanted to be there.

Second, professionally, he wanted to advance. He wanted to give, he wanted to serve, he wanted to take that time. And he meant it when he said he wanted to serve. Volunteered on many occasions. And if you look at that, what he got paid for being the chief of police in the troubled village, it was obviously a token of his desire to better his community and serve mankind. And particularly the people that he could help when he could. And volunteer.

Third, his community. This is about the community. Accountability, responsibility. Those aren’t hollow terms. Standard of care, medical treatment. This community awaits your decision. This community awaits your determination. It’s just the way it’s going to be done. The next time, I’ll do it the same way. We’ll do it the same way. We wouldn’t change a thing. If we had the records, we wouldn’t have bothered to look at them. If we did look at them, it wouldn’t matter. We don’t have the records because they may have been destroyed.

Will you look at the ink in the water. When you see your way clear because –Captain Lykins saw his way clear to do the best he could with everything he tried to put in front of his life. He was a good man and a good father. And I ask you, in light of the evidence and in light of the testimony of Jerry Oster, the urgent care doctor, who threw him the lifeline –threw him a lifeline, “David, go to the emergency room.” And Tina took him. And they took –went to the emergency room with that lifeline.

And at the emergency room, ladies and gentlemen, the triage nurse didn’t meet standard of care. Then Mr. Heller didn’t meet standard of care. Then Dr. Vaughn didn’t meet standard of care. That’s the lifeline. And then they called Dr. Oster to close the loop. They closed the loop all right. Instead of giving him a lifeline, they gave him the noose.

And all they had to do was stop, look and listen and pay attention to their patients. This patient. For Tina Lykins, it’s really that simple. And then defiance. I’ll do it all over again. I was right. Forget all the testimony. Forget Dr. Roth’s careful –he needed to have lab work. CBC means nothing. The hospital itself calls it high. No, we’re going to fool a jury of Montgomery County people that somehow you believe that the CBC on March 3rd was normal as he’s dying of an infection. You’ve gotten that clear. But they walk in and they gamble and they make the voyage very difficult.

I will get to speak to you again, and I will for another 20 or 30 minutes, unless you want to just tell me to you don’t want to hear from me anymore. But I hope I have brought something to help you out. Something convincing. This case really needs no convincing. I ask the question what is fair, what is justice, what is standard of care. That is not standard of care. Look –no evil, see no evil, hear no evil. And in fact the lesser of two evils is going back and having to determine standard of care, and fair, reasonable verdict, then they will have won.

Ladies and gentlemen, I await your verdict so I can tell the captain that his trip is truly over, his prize is truly won, and that you will post the conscience of this community in the emergency room where these defendants jointly and severally –the hospital, the nurses, the three doctors –so that they stop, look and listen and listen to ordinary people. Because this courtroom is for the victims. This courtroom is for ordinary people. And I –as an ordinary person, I salute you as doing something very special in having the opportunity to do what I can’t do. Because a jury has all the power. Not a decision in this world has not been reviewed by a jury. Everything we do is reviewable by a jury. I ask you to realize how important it is and what an important thing that you do here.

I thank you for your time and attention. I hope that what I’ve said is helpful to you. I believe that with all my heart. Thank you ladies and gentlemen.

The court: Thank you. Let’s take a break here.  15 minutes would put us at 2:30. Don’t discuss the case, form or express opinions until your deliberations commence.