Sample Medical Malpractice Rebuttal Closing Statement Transcript

Below is an example of a rebuttal closing statement given by Laura Zois in a brain aneurism misdiagnosis case.

REBUTTAL ARGUMENT BY LAURA G. ZOIS, ESQ.
ON BEHALF OF THE PLAINTIFF
Thank you, Your Honor. It is absolutely terrifying
to me that after four years and listening to all of the
testimony and understanding all of the evidence, that the
Defense still doesn’t understand why we’re here. They still
don’t understand what we’re claiming the doctors did wrong.
And I’m going to go through that in a second, but they don’t
get it. And in the beginning of this case, I did tell you that
this case is not complicated.
It’s actually pretty straightforward and simple, and
I’m going to walk you back through that in a second. But you
just had the doctors stand up, but they know you’re not

supposed to be invoked by sympathy. And that goes for the
defendants, too. And Ms. White isn’t here for sympathy.
She’s got plenty of sympathy from her family and her friends
and her sister and her nieces and her nephews. We’re not here
for sympathy. What we’re here for is to hold the doctors
accountable for what happened to Gregory.
And you’re going to have to explain to each other why
you feel the way you do about the evidence. And so back in the
jury deliberation room, what I’m going to talk about are the
things that I think you are going to be discussing. And I
can’t possibly go through everything I disagree with of what
they said up here, because then we’d be here for another hour.
But what I do know is that you all have been taking
very copious and careful notes. So I want you to definitely go
back and look at the notes that you’ve been taking because I
think you’re going to find some of the answers in those notes.
And some of that is going to be different than what some of
these attorneys have said up here during their closing
argument. But I can’t go through it all.
But the case is not difficult. It’s a simple case.
What happened with Gregory is that we know what his medical
history is, and right now, I’m struggling a little bit to find
the calendar. So everybody agrees that this is Gregory’s
medical history. And everything represented in red are when he
went to the doctor and had headaches.

And everything represented in green, including a
visit in February, was when he went to a doctor for some other
reason and didn’t have a headache. And I think one thing you
know about Taylor White is she’s a mama bear. And her baby
isn’t feeling well. He’s going to the doctor. We’re talking
about a woman that took her son to five medical appointments
over the course of six days.
Five medical appointments over the course of six
days. If her son Gregory was having headaches in between
December and April, you’d see dots on here. There isn’t any
there. Gregory wasn’t having headaches in between December
and April. That’s not what the quality evidence would show
you. The quality evidence shows you that in fact he wasn’t.
And if he was having headaches in between December
and April, Dr. Edelstein did the worst — the very worst prior
medical history of any possible pediatric neurologist, because
a pediatric neurologist must know the frequency of the
headaches, the duration of the headaches, the symptoms
associated with the headaches.
And you can’t tell me that when Taylor White went in
there and said my son had a headache in December and then Dr.
Edelstein in her notes said headache in December, nothing until
then, you can’t tell me that as a pediatric neurologist, that
the child in front of you who is complaining of severe sudden
onset of headache isn’t going to do some — at least a couple

of questions about the headaches in between December and April.
So there just isn’t — the evidence just isn’t there.
The defense team has subpoenaed records from all over the State
of Maryland. If Taylor White had taken her son in for a
headache, they’d have it. And Taylor White took her son in
for sniffles and rashes and a bum elbow and a cough and a cold.
You can see the level of attention that this mom has for her
son just with this ten day period alone. Five doctors’ visits
over the course of six days. So what we know is that Gregory
did have a headache in December. He had a headache in
December. And then he had a sudden and severe onset of what
turns out to be the worst headache of his life. That’s what
happened here.
This child — this is Gregory’s history of the last
14 days of his life. He has an unrelenting, severe headache
that Tylenol and Motrin and Toradol aren’t getting rid of.
There’s something causing these symptoms. Something is going
on in this child’s brain that’s not being addressed. And for
each one of these healthcare providers, they’re responsible for
knowing what’s in Gregory’s past, what’s in Gregory’s
history.
So for every one of these healthcare providers, they
need to ask the right questions, to make the right diagnosis,
so they can give the right treatment. So they need to
understand that Gregory didn’t have headaches since December.

Gregory had a headache in December. Not since December.
And for every one of these doctors, they’re
responsible for knowing what’s been going on with this child
for this many days. So for example, I know we’ve spent a lot
of time talking about Physician’s Assistant Longley and how he
appeared on the day that he was seen on April 6th — I’ll just
use that as an example, but remember that on April 6th,
Physician Assistant Longley was concerned enough to refer him
to a neurologist. And the reason was because she knew the
history.
She knew that this started in March. She knew that
he had nausea, vomiting, neck pain, dizziness. At the time she
saw him, photophobia. She knows that Nurse Janner said he
appeared very ill. So even though counsel wants you to believe
that he was perfectly normal on April 6th and everything was
fine, Melissa Longley knew that there was enough there to at a
minimum refer him to a neurologist.
And what’s really sad and tragic about that day is
she also suspected a brain aneurism. It was in her
differential diagnosis. She suspected it. She got it right.
But guess what? We’re not expecting anybody to do that.
That’s not the standard that we’re expecting of the doctors.
The standard that we’re expecting of the doctors isn’t diagnose
the one in a million rare things. That’s not what it is. Even
though Melissa Longley got it right.

That’s not the standard of care. The standard of
care is look at this child. Look at what he’s going through.
Understand what his symptoms are. Know that pain medication
isn’t working. Know that he has neck pain. Know he has
dizziness. Know he has vomiting. Know that he cannot sleep.
And it’s not going away. So do one thing. Take a look.
That’s all we’re saying. Take a look. Run a CT scan. Do an
MRI. That’s it.
We’re not expecting that any of these five doctors
sitting over here are going to be able to say, oh, well, I’m
going to diagnose speci
fically this one in a million rare brain
bleed. That’s not what we’re saying. That’s terrifying.
Absolutely terrifying to me that you all would think that
that’s what is required under the law, to be reasonably
competent. That is not it. That is not it. No doctor is
required to imagine and come up with some rare diagnosis, even
though Melissa Longley did it.
What they are required to do is take a look at this
child, spend a moment with him. Spend enough time with him to
understand what his history is. And just take a look and see
if there’s something there. Take a look and rule out what you
know to be life threatening symptoms. Because what he had were
life threatening symptoms. And he got just bounced back and
forth. ER, pediatrician, ER, pediatrician, ER, neurology,
neurology, back to medication. Somebody needed to take a look.

Somebody needed to rule out the life threatening condition and
the life threatening symptoms that he had. Somebody just
needed to take a look.
Now, with respect to the sentinel bleed and whether
or not it’s a thing, it’s a thing. It’s on Johns Hopkins
website, even though Dr. Kuhn didn’t really want to talk about
it. It’s also ultimately what Children’s Hospital — you can
look at this again in your exhibits if you want to, but it’s on
page 145. It’s what the doctors at Children’s said happened.
They said it started as a sentinel headache. So it’s a thing.
And it’s what happened in this case.
And I’m also just dumbfounded about how you can have
so many smart people in the room, so many intelligent
attorneys, who can’t figure out Dr. Meager (phonetic sp.) and
what his testimony was about the bleed in the subarachnoid
space. This is very, very, very important. Dr. Meager said
if blood is in the subarachnoid space — Dr. Jones talked
about it, too — you aren’t going to have neurofocal deficits,
because the blood is in the space that isn’t touching the
brain.
So you’re not going to have neurofocal deficits.
It’s not going to happen. And everybody agreed, including Dr.
Edelstein, that if you have blood in this subarachnoid space
which isn’t touching anything else in your brain, that you can
have all of the symptoms that Gregory had.

So you don’t need to be collapsing on the floor and
having altered mental status to have blood in the subarachnoid
space that’s causing problems.
So let me address the small amount of blood that was
in the subarachnoid space. Gregory had an aneurism. It
started to bleed. How it closed off, it’s called clotting.
And Dr. Meager talked about that. He had a small bleed. It
clotted off, and it stopped bleeding. Now, let’s talk about
the blood that’s in the subarachnoid space. Blood does not
belong in the subarachnoid space.
It’s not supposed to be there. It’s going to cause
symptoms. And it caused these symptoms in Gregory. The
existence of the blood in the subarachnoid space caused these
symptoms for Gregory, and which is why he didn’t have
neurofocal deficits, because you can’t get neurofocal deficits
unless the blood is a hemorrhage in the brain, and that’s just
not where it was.
And if you remember Dr. Meager’s testimony, and this
is a lovely display here. But if you listen to Dr. Meager’s
testimony, what he said was it’s not a washing machine in
there. Basically, the blood stays. The blood does not leave
the subarachnoid space. The fluid does circulate around. But
the blood stays. The blood isn’t absorbed into the body. The
blood stays in the subarachnoid space.
So the blood stays in the subarachnoid space, which

is why Dr. Meager also told you that if a CT image was done
between April 2 and April 8, with nearly 100 percent
reliability, it would have shown up on a CT scan, because blood
looks very different than the fluid in the subarachnoid space
is supposed to look. And it would have been difficult — by
saying it’s just a little amount of blood is kind of like
saying oh, it’s just a little bit of arsenic.
It’s just a little bit of nuclear radiation. The
blood is not supposed to be there. I don’t care how small it
is. It’s large enough to create these problems and it was large
enough and in a large enough amount for Dr. Meager to tell you
that it would have been visible on a CT scan.
Which brings me to my next point. If they were so
sure that this blood was not going to show up on a CT scan and
they were so sure that this isn’t a sentinel headache, where is
their radiologist that’s going to come in and tell you that?
Where’s that guy or gal? Where is their radiologist that’s
going to come in here and tell you it’s not going to show up?
They didn’t call one. They did not put a person on
the stand that is trained, qualified, board certified, looks at
this day in and day out. They didn’t put that person on the
stand. They put Dr. Kuhn on, who had to admit that he’s not an
expert in neuroradiology imaging. He’s just not. And while
I’m on Dr. Kuhn for a second, with the comparison between Dr.
Kuhn and Dr. Chow, I just want to remind you all that Dr. Chow,

100 percent of her patients are pediatric patients. 100
percent of them. All of them. And Dr. Kuhn has five percent
of his population as pediatric patients. So Dr. Chow’s entire
population of patients that she deals with are pediatric
patients.
So you know, it’s not — I just have to say it one
more time. It’s not — we’re not asking that these doctors had
diagnosed some crazy, rare, odd thing that no one ever thinks
about. That’s not the case. And if I haven’t done my job and
convinced you that that’s not the case, I could see why you
would say, wow, you can’t expect these doctors to diagnose this
really super-rare thing. That would be crazy. And it would.
That’s not what we’re asking of reasonably competent
health care providers. What we’re asking of reasonably
competent health care providers is to take a look. Just take a
look at this kid. Give it a closer look. Spend a little bit
more time with him. Do a CT scan. It’s right down the hall.
Take 15 minutes. You’ll have results within an hour. And
you’ll have your answer. And none of them did that. None of
them took the time to do that. None of them took the time to
rule out the life threatening possibilities based on the
symptoms that he had.
And it’s just — it’s inexcusable. And you all have
a choice. You’ve seen a lot of people come in and out of this
courtroom. Right? You all are going to have a choice when you

go back into the jury deliberation room. Your decision in this
case matters. It matters a lot. It matters to us. It matters
to everybody else in this courtroom. But most importantly, it
matters to your community. And you all have a choice to make.
You can decide that you’re going to agree with the standard of
care that protects the doctors. Because that’s what the
doctors, the local doctors came in, right? Baltimore,
Georgetown, Baltimore — they all came in and said, oh, the
standard of care is everybody did all the right things.
Or you can accept the standard of care that prote
cts
the patients. And the standard of care that protects the
patients is going to require that somebody take a complete,
accurate, and thorough history and take another look at
Gregory White, take a closer look to rule out any of
these life threatening symptoms that he had going on. And you
have examples of reasonably competent physicians. You have
Nurse Janner who called over to the emergency room. You have
Children’s Hospital that called over to Nurse Janner. Nothing
was stopping any of these folks from communicating with each
other.
Call the pediatrician if mom is saying I don’t know
to an answer that’s really important. Call the hospital if
he’s in your office as the neurologist to find out what the
history is. They didn’t communicate with each other. It wasn’t
— it was a system failure is what happened here. And it’s just

not okay.
So the last thing that I’m going to leave you with —
I guess you shouldn’t be surprised that all the defendants are
arm in arm, right? And that they’re all relying on each
other’s testimony and that they’re sharing experts and that
sort of thing. But it’s not a competition about who called
more experts or who has more people that say the same thing.
What I’m going to ask of all of you is to analyze the
credibility of the witnesses and why they might be testifying
the way they are. And I think after you do that, what you’re
going to realize is that the credibility of Dr. Evans and Dr.
Jones and Dr. Chow and Dr. Meager are going to carry the
day on the standard of care and on the causation issue.
And before I sit back down, I just want to say one
more thing. We all get to go home after this case is over. I
go back to my house, my family. Counsel goes back to their
house, the doctors go back to their practices. You guys get
back to what you’ve been missing for the last two weeks.
But this is Taylor White’s last and only opportunity
to hold the doctors accountable for failing to order a test
that would have caught a life threatening condition and saved
his life. And Taylor White is going to leave after this trial
and go back home and she’s going to be look at the box of her
son’s remains for the rest of her life. For 46.4 years. And
today is her day to hold the doctors accountable for failing to

do what reasonably competent doctors would have done faced with
these complaints and just take a little closer look. Thank
you.