the standard of care was met. why don't people understand a very simple concept such as standard of care? because they're dumb.
This, and the definition of "Neglect" were the two overriding issues that led to a not-guilty verdict in this case.
The ONLY time "Standard of Care" was clearly given a Websters definition in the entire trial was during the Prosecutions opening arguments...it was like in the first minute of his opening. Pro Tip for all the lawyers on this board...jurors are still kind of in a mild state of shock at that time...we are still processing the fact that we aren't going to work that day, or the next day, or the next day...I don't know if it is always like this, but we were literally called into the courtroom, the 13 of us were selected, the other 30 left, we were sworn in, and we started the trial. I specifically remember hearing him define SoC, I, nor any of my other jurors wrote the definition down in notes.
RE: Neglect, we had one guy on the jury that kept saying, "He took X-Rays, he didn't neglect the guy, so we can't find him guilty of Neglect," to which ever time, I would read the three sentence Law Approved definition of Neglect which is NOTHING like the everyday definition of Neglect. The definition we were told to use was something along the lines of, "If you find the defendent didn't diagnose the fracture or immobilize the leg, you must find the def neglectful if you feel a majority of those with similar qualifications & experience would have acted differently (that is a horrible paraphrase, but it gets the point across that 'intent' to cause harm or 'dismissive' of the patient needs wasn't in the definition.
Anyway, when we got the case for deliberations, 1st vote was 5 negligent, 5 not-negligent & 2 undecided...after 4 hours, next vote was 4 negligent, 6 not-negligent & 2 undecided. At that time, we broke for the evening on Thursday. Came back Friday AM to finish up, both undecideds had moved slightly into the not-negligent camp...90 minutes later and a 9-3 Not Negligent verdict was met. Me and two other guys were the dissenters, and I was stuck on a couple of simple facts...the Defendant did not confirm an appointment was made for the ortho, so he didn't know if it was in 24 hours or 1 week, and no further care instructions were given to the plaintiff, other than to treat with ice for swelling and take the x-rays into the ortho. If he had simply said, "There is something wrong w/ the knee (like he mentioned in testimony), be it a sprain, deep bruise or a hairline fracture, take it easy until you can get a 2nd opinion," then I'd be on the other side with the not-negligent folks. My biggest factor was that once the break went from minor to impacted, surgery was then a certainty...I felt the plaintiff, if nothing else, was robbed of his decision making in his recovery by the delayed diagnosis...non-surgical options were there for him to choose before, they weren't by the time he got into the ortho.
After the trial, I did get to spend about 90 minutes talking to the plaintiff, his lawyers and a shorter time talking w/ the defendant & his lawyers. I told them what I mentioned above about the two deifnitions being the sticking points, and that they neglected to call another GP as an expert witness testifying to the readability of the Initial X-Ray...if they had another GP say that the fracture should have been diagnosed, instead of 'expert' witnesses in the field of orthopedics, it would have ended differently.
Ironically, even through I was the loudest voice in the negligence camp during deliberations, I also wouldn't have voted to give the guy a lot of $$ if the Dr was found negligent. I wouldn't have touched the Dr Bills, since the Defendant didn't cause the injury, most of the bills would have come about no matter the treatment, and there is a chance surgery would have been required anyway...since we weren't given itemized bills, guessing at a total would have been our only choice. I would have fought to give him a little $$ for lost wages, and a little $$ for Loss of Enjoyment of life, but you're talking $30-$40k max, compared to the $400k or so they were asking for.
