Legal background

Blaming an alternate, absent person is a common defense tactic. During a trial, some defense law-yers will even set up an empty chair at the defense table and point to the “real cause” of the patient’s injuries.

 


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The tactic is generally very effective, but there is a catch: To allow the plaintiff’s team to prepare a counterargument, defense lawyers must notify them that an “empty-chair defense” will be offered. In this case, the defense lawyer neglected to do that, so the judge ruled that the strategy could not be used. When Dr. S mentioned the alternate explanation anyway (“the nurse did it”), the judge granted the mistrial.

 

Protecting yourself

Many people may treat severely injured patients before they arrive at the ED. A baseline study, such as a urethrogram, will define pre-intervention pathology. This is good risk management and may be good medicine. It also avoids the situation Dr. S encountered: He was unable to demonstrate that the man’s injury preceded his placement of a Foley, even though he was sure he was not responsible and his clinical notes indicated no problem with placing the catheter.

Additionally, Dr. S found himself having to deal with his attorney’s mistake. Even though his confidence in his lawyer was shaken, Dr. S should have listened when he was told to avoid mentioning the nurses, no matter how important he thought the testimony was. By ignoring that advice, he caused a mistrial. Had he listened, he would have won.