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.

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

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

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

1. of questions about the headaches in between December and April.
2. So there just isn’t — the evidence just isn’t there.
3. The defense team has subpoenaed records from all over the State
4. of Maryland. If Taylor White had taken her son in for a
5. headache, they’d have it. And Taylor White took her son in
6. for sniffles and rashes and a bum elbow and a cough and a cold.
7. You can see the level of attention that this mom has for her
8. son just with this ten day period alone. Five doctors’ visits
9. over the course of six days. So what we know is that Gregory
10. did have a headache in December. He had a headache in
11. December. And then he had a sudden and severe onset of what
12. turns out to be the worst headache of his life. That’s what
13. happened here.
14. This child — this is Gregory’s history of the last
15. 14 days of his life. He has an unrelenting, severe headache
16. that Tylenol and Motrin and Toradol aren’t getting rid of.
17. There’s something causing these symptoms. Something is going
18. on in this child’s brain that’s not being addressed. And for
19. each one of these healthcare providers, they’re responsible for
20. knowing what’s in Gregory’s past, what’s in Gregory’s
21. history.
22. So for every one of these healthcare providers, they
23. need to ask the right questions, to make the right diagnosis,
24. so they can give the right treatment. So they need to
25. understand that Gregory didn’t have headaches since December.

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

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

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

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

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

1. 100 percent of her patients are pediatric patients. 100
2. percent of them. All of them. And Dr. Kuhn has five percent
3. of his population as pediatric patients. So Dr. Chow’s entire
4. population of patients that she deals with are pediatric
5. patients.
6. So you know, it’s not — I just have to say it one
7. more time. It’s not — we’re not asking that these doctors had
8. diagnosed some crazy, rare, odd thing that no one ever thinks
9. about. That’s not the case. And if I haven’t done my job and
10. convinced you that that’s not the case, I could see why you
11. would say, wow, you can’t expect these doctors to diagnose this
12. really super-rare thing. That would be crazy. And it would.
13. That’s not what we’re asking of reasonably competent
14. health care providers. What we’re asking of reasonably
15. competent health care providers is to take a look. Just take a
16. look at this kid. Give it a closer look. Spend a little bit
17. more time with him. Do a CT scan. It’s right down the hall.
18. Take 15 minutes. You’ll have results within an hour. And
19. you’ll have your answer. And none of them did that. None of
20. them took the time to do that. None of them took the time to
21. rule out the life threatening possibilities based on the
22. symptoms that he had.
23. And it’s just — it’s inexcusable. And you all have
24. a choice. You’ve seen a lot of people come in and out of this
25. courtroom. Right? You all are going to have a choice when you

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

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

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