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.
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.
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.