Trial Guides congratulates Minnesota attorney Joe Crosby for his recent $1.7 million verdict in a no offer medical malpractice case. Crosby and Liz Fors, his paralegal who co-chaired the trial with him, spent six years fighting against a defense that repeatedly claimed they would never make an offer. Crosby’s client was permanently paralyzed on the right side of his face during what should have been the routine removal of a small benign tumor.
Trial Guides asked Crosby if he gained any insights from this case that might help other lawyers. Crosby was kind enough to share some of the story, including some of the problems he ran into and how he and his team were able to overcome them.
Joe Crosby on How He Obtained Justice for His Client:
The defendants, both board-certified ENTs and Mayo Clinic graduates, cut my client’s facial nerve during a parotidectomy. The doctors were trying to surgically remove a tumor about the size of a thumbnail. The tumor was not cancer and could not be seen, as it was just under the angle of the jawbone.
After the surgery, my client’s face was permanently paralyzed. It looked as if the right side had melted and slid down toward his neck. He had three major surgeries to reconstruct his face. Excruciating facial-muscle spasms were another side effect. Only quarterly rounds of twenty to forty Botox shots into the eye, cheek, nose, forehead, lips, and chin helped deaden the constant muscle-spasm pain.
The right side of my client’s face now looks angry. He cannot make any other expression on that side. This is a huge loss because he and his wife have a severely disabled son with the cognitive level of an eighteen-month-old. Expressions are an important form of communication for them. Now, when the client is driving and his son is in the passenger seat, his son just sees his father’s angry looking face.
We sued the clinic, not the doctors. Our damages were limited to harms and losses, disfigurement, and emotional distress (he hadn’t lost any work). The defense never made a settlement offer because they said facial-nerve paralysis was a recognized risk of a parotidectomy, and they should get a free pass because my client had signed a consent form.
Several Trial Guides products helped me overcome obstacles in the case. One cold Minnesota night I was listening to Patrick Malone’s Rules of the Road in Medical Malpractice Caseswhile out walking in the snow. He was talking about informed consent and how we underestimate its value. My note-taking pen was frozen, but fortunately my brain was not. Informed consent. I knew the defense would shove it down my throat since my client had signed the hospital’s generic consent form.
Rick Friedman’s Stop Your Whining and Go to Trial was what got me over the hump when our case was continued for the third time. It pushed me to keep on seeking what my client deserved. Shortly thereafter, I listened to Roger Dodd and Rick Friedman speak with Zoe Littlepage and Rainy Booth on the Trial Tactics CDs. Their presentation provided pearls of wisdom and inspired me to start thinking outside the box at trial.
We used the advice from Malone’s Rules of the Road in Medical Malpractice Cases and Friedman’s Polarizing the Case to spur ourselves to not defend our case, but attack theirs. A lot rode on the consent issue. We didn’t give them a way out other than to say “yes, it was in the best interest of the patient to warn them the surgery had a risk of permanent facial paralysis,” or “yes, an alternative was to just monitor the noncancerous tumor and there would have been no risk.”
It was important that we had sued the doctors’ clinic, not the hospital. The doctors didn’t have a consent form. The only written mention of consent was a note about having had “discussed risks and benefits.” The first time the actual words “facial paralysis” were written was in the op note after the nerve had been cut—the doctors wrote they had properly informed the patient of the risk of facial paralysis.
Each time the defense brought up the consent form in trial, I’d hammer their witness: “Please show the jury the written information the defendants give to their patients so patients can read about the surgery and its risks when they get home, the information necessary for them to make a truly informed decision about whether or not they want to proceed with surgery.”
The defendants didn’t have any of this written information though they do hundreds, if not thousands, of parotidectomies per year. Nowhere in the hospital’s consent form was there a single word about permanent facial paralysis, nor was there in any of the doctors’ records.
We asked defense witnesses, “If the patient chose not to have the surgery, would the thumbnail-sized tumor ever turn to cancer?”
“Would it cause paralysis?”
“Would it cause twenty-four seven intractable facial-spasm pain requiring a lifetime of Botox injections every three months?”
“Would it cause facial deformity and require facial reconstruction?”
“Would it leave half his face without the ability to make any expression?”
Then we asked, “Don’t you think a patient would want to know that important information?”
The defense hammered every one of our experts on the fact that facial paralysis is a recognized risk of a parotidectomy. Each time they said “risk” we said “preventable complication.” Each time they brought up the signed consent, we clarified it was the hospital’s boilerplate form—the same form that could be used for appendicitis or a hernia.
We asked their witnesses to read aloud the actual risks on the hospital’s consent form for a parotidectomy—where did it say permanent facial paralysis? There was no such language. Failure to mention permanent facial paralysis as a risk of the surgery meant they had not met the standard of care—all the experts agreed. Pat Malone’s wisdom helped me turn the impenetrable defense of “he signed the informed consent” right back against the defendants and won us the case.
As much as Pat Malone helped me win this case, Nick Rowley’s book helped me not lose it. Until I had read Trial by Human, I hated voir dire. My knees would shake and my mouth would dry out. And in this case, I faced a particularly tough jury. Multiple jurors had family members who were doctors, two were engineers, and all but one was a college graduate. I thought I was dead meat. I had two preemptories, but needed ten. I figured, “what the heck, let’s see if Rowley’s brutal honesty method and ‘getting to know you, getting to know all about you’ approach might work.” I figured it couldn’t be worse than the abysmal method I’d been using.
To be brutally honest, I am always scared and nervous during voir dire. I don’t like to speak in front of strangers. Unashamedly, I stole Nick Rowley’s opening lines almost verbatim from a voir dire example he shares in Trial by Human. I got up and told the jury the truth. I went where I never had before and I asked them to help me do my job and to help me find out about them. I asked them to talk and not let silence creep in. I asked them to hold back no punches.
The atmosphere of the courtroom changed. This was different than the defense’s two hours of talking at them. People became engaged when I said “tell me more” and “how about that.” We laughed, and it was a genuine laugh from my heart, not a ploy to win the jury to my side.
There was one other time when Nick Rowley’s advice helped. During closing, the defense counsel went on for what seemed a year about how “Mr. Crosby smirked when he cross-examined my client.” The defense counsel had a field day with my insincerity. I’d smirked at one of her clients who I had, according to her, “falsely accused of malpractice.”
As the defense went on, I passed a post-it to Liz, my paralegal, asking, “What should I say?” She looked at the jury and passed me back the post-it:
“Be brutally honest.”
I felt a weight in my heart. Had my foolish pride ruined my client’s chance for justice after waiting six years? The defense’s closing ended and I approached the jury with head bowed. I thanked the jury for their honesty at the beginning of the trial. Now it was my turn to be brutally honest. I scanned the jury and, voice cracking, told them I owed them all an apology because the defense counsel was right. I had smirked at her client, and a courtroom is no place for that. This was a serious matter that had changed lives. I turned to the judge and apologized to him. I looked at the defense counsel and apologized to her to and each of the two defendants.
It seemed as if no one moved. A quiet stillness replaced the raucous, loud excuses the defense counsel had been arguing just moments ago. I then had a conversation with some really good people: the jury. I had gotten to know about them a week earlier because I was honest and showed them I was just a plain old Joe asking for their help. If I had taken my usual approach, I wouldn’t have had the trust with the jury that proved so critical to winning this case.
I am just a legal mechanic, but with the help of masters like Pat Malone, Nick Rowley, and Rick Friedman, I am finally learning how to head down the path to becoming more of an artist and storyteller. In the end, the jury did not find the doctors were negligent in their surgery procedures, but they did find the defendants negligent for not providing proper informed consent. The jury awarded my client a verdict of $1.7 million. After six long years without a single offer from the defense, my client had justice.