Cross-Exam Uses Humor to Takes Bite Out of Risk-Benefit Analysis Argument in Med Mal Trial

Risk-benefit analysis is a common defense in medical malpractice cases, with the defense often concentrating on the low likelihood of potential complications to justify a doctor’s decisions.  During cross-examination of a seven-figure med mal trial, however, Cale Conley used humor and a hypothetical alligator in an elevator to turn risk-benefit analysis on its head.

Ann Scoggins died from a heart attack while being treated for a partial bowel obstruction. Scoggins’ husband claims Dr. Elizabeth Smith failed to appropriately test or diagnose a bowel obstruction when she saw Scoggins in the ER a day earlier, and Dr. Daniel Moldoveanu failed to properly treat Scoggins’ likely obstruction when she was ultimately admitted to a hospital.

At trial, the defense called Dr. Dag Shapshak, an expert on emergency medicine, to support the contention that Smith, who ordered an X-ray that showed no obstruction before releasing Scoggins, properly treated her in the ER. On cross-exam, Conley, of Atlanta’s Conley Griggs & Partin, questioned whether, given Scoggins’ symptoms of abdominal pain and nausea and the possibility of a potentially catastrophic bowel obstruction, Smith could have done more, either through additional imaging, or restrictions on food by mouth.

“Before you tell a patient, ‘Go home and eat a bunch of fibrous food,' shouldn’t you know as certain as you can, using all available techniques, that there is no obstruction going on?” Conley asked.

But Shapshak rejected that contention. “Risk-benefit is how you determine what is necessary,” he maintained.

Conley pushed back, moving with a vivid hypothetical intending to turn Shapshak’s risk-benefit analysis against him. “If I said to you, ‘Doc, there’s a 1 in 500 chance when you walk out there today, there’s an alligator loose in Decatur, there’s a 1 in 500 chance it’s in one of the elevators,” Conley said. “Are you going to take the elevator, or are you going to take the stairs?”

“I’d like to keep both my legs,” Shapshak said through laughter. “I might decide to [take the stairs] if I thought it was credible.”

During closings, Conley highlighted the importance of the alligator in the elevator hypothetical. Humor not only injects levity, Conley said, but “It can teach truths.”

Conley explained “Their defense is: there is a low likelihood of this happening. Therefore it was OK for us to ignore it.”

But, Conley said, “When you think through it, it defies common sense. And the alligator in the elevator brings that home. It’s silly. It’s low likelihood. But you still wouldn’t do it. Because when the risks are of death or physical harm that will rob you of a life that gives us meaning, you don’t do it. You don’t take chances.”

The alligator in the elevator hypothetical pulled discussion of risk benefit analysis away from statistics and probabilities. Although jurors cleared Smith of malpractice for her ER treatment, they found Moldoveanu negligent, handing down a $6 million verdict.