I just finished serving as an alternate juror on a civil trial at the Kings Country Supreme Court in Brooklyn. It was a medical malpractice trial, in which the plaintiff’s attorney alleged several “departures from accepted medical practice” on the part of a pediatric ophthalmologist, departures which the plaintiff’s attorney alleged were a significant cause of the plaintiff’s permanent blindness in his left eye. The plaintiff was a six-year old black kid, a little boy who now would never see out of his left eye. After about five days of testimony, the jury returned a verdict for the defense on all five counts, unanimous on all counts but one. The doctor was cleared of all allegations of malpractice and the kid got nothing.
The plaintiff’s case was marred by the attorney’s histrionics, made difficult by the complexity of the medicine needing to be discussed, and, it seems to me, defeated by a defense strategy of misdirection and racist implication. Yet in the end, as the court officer read off the verdict sheet before deliberations began, I counted at least two and maybe three of the five allegations that seemed to me—from the evidence presented in court—substantially proven. I was only an alternate juror, so I didn’t get to take part in the jury’s deliberations, but I wish I had been in there because I believe the jury was wrong, I believe they delivered an unjust verdict, and I believe they delivered it from a toxic combination of laziness, meanness, weakness, classism or racism, and stupidity.
(I’d like to add a snarky aside here: my Word dictionary doesn’t recognize classism. Interesting, no?)
I don’t want to get into too much detail here. Essentially, the kid, whom we’ll call Tyrone Stevens and who was two-years old at the time, had crossed-eyes, which necessitated a surgery that the doctor, whom we’ll call Dr. Kidd, performed but screwed up—instead of a clean surgery, he accidentally stabbed into the kid’s eyeball. This, however, was not the suit: Dr. Kidd fixed his mistake, cared for the extra injury, and sent Tyrone on his way. Nothing bad there, except perhaps (alleged the plaintiff’s attorney) increased inflammation in the eye that may have exacerbated later injuries.
The allegations of malpractice begin from care three months later, on August 12, when Tyrone was brought by his mother to the Emergency Room with hyphema, or blood inside his eye. Hyphemas are usually caused by trauma, and the defense alleged first that Tyrone must have hit his head on something, then insinuated that he was probably shaken or physically abused. There was no evidence of any other trauma, no bruises, etc. The plaintiff’s attorney insinuated that the hyphema was likely a result of unresolved healing from the previous surgery, perhaps because of complications resulting from Tyrone Stevens possibly having the sickle-cell trait, but none of this was satisfactorily established or proven. In fact, as far as evidence in the trial goes, I felt that we would be unable to judge what caused the trauma.
The defense’s insinuations of neglect and abuse on this point bring up two related issues, that of Ms. Stevens, Tyrone’s mom, and of class. Now Dr. Kidd was black as well as Tyrone and his mom, so it wasn’t a crudely racist issue we’re dealing with. Dr. Kidd was intelligent, erudite, and composed, just as you’d expect a doctor to be, black, white, or chartreuse. Ms. Stevens, on the other hand, showed herself on the stand to be inarticulate, uneducated, and overwhelmed by the entire trial process. She came across as a poor black woman, unmarried, single mother to a child from a man who was no longer even in the country. Although both Ms. Stevens and Dr. Kidd showed significant lapses of memory, which might be expected considering the events under discussion happened five years ago, Dr. Kidd could rationalize and obfuscate about his, while Ms. Stevens was reduced to gaping anger under cross-examination, unable to frame her answers in a way that fit the legislative jargon and Standard American English of the courtroom. The reason this isn’t as much a racial as a class issue is that for me, I could just as easily imagine poor whites having the same trouble. She’s not dumb and untrustworthy because she’s black, but because she’s poor and uneducated. It could have been her on the stand, or any cracker ho from Jerry Springer, and they would have come across as the same dressed-up stereotype of troglodytic poor.
This stereotype was vigorously maintained by the defense and untouched by the plaintiff’s attorney. The defense used it specifically on three points, the trauma just mentioned, the medication, and in regards to a missed appointment, which these last two items I will discuss later.
To return to the timeline of the case: Tyrone was admitted with a 40% hyphema on August 12, which means his eye was 40% covered with blood. He was administered anti-inflammatory medication and his eye was patched. Dr. Kidd saw him on August 14, to clear him for discharge, but instead mandated further hospital care. On August 15, the hyphema was 90-95%, and his inner-eye pressure was 25+, and the next day the hyphema was 100%. The eye was completely covered with blood. According to all testimony given at the trial by all expert witness, this indicates the necessity of a surgical procedure, a “wash-out,” which uses a small vacuum to suck out the blood from the eye. There was disagreement as to when the wash-out would need to happen: the plaintiff’s expert witness said within 48 hours, the defense’s expert witness said within six days. The first allegation of malpractice was that Dr. Kidd did not perform the wash-out on August 16, when it was first indicated, but waited until August 19. This to me seemed not established by a preponderance of evidence. It seems the best care would have been to perform the washout ASAP, but August 19 was within standards of care.
What happened next, however, was an issue of some confusion and import. During the washout procedure, for some reason, bits of Tyrone’s lens were vacuumed out. Dr. Kidd’s surgical report says they were cataractous. This raises a point that the plaintiff hammered on: that Dr. Kidd was essentially unreliable. Dr. Kidd’s records were riddled with mistakes, often transcribed weeks after the operation, and at times self-contradictory. As well, Dr. Kidd in his testimony contradicted both his reports and the sworn deposition he gave in 2006. In fact, he changed his testimony from one day of the trial to the next, saying one thing when he was on the stand as the plaintiff’s witness, and another when he was on the stand for the defense. I felt that as much as the defense established that Ms. Stevens was unreliable because of her lapses of memory and inarticulacy, the plaintiff’s attorney established that Dr. Kidd was unreliable because of his poor record-keeping, his shifting story, and his obfuscations. This is to the point because we’re not quite sure how Tyrone’s cataract developed: Dr. Kidd said it was probably due to whatever trauma Tyrone suffered on August 12, while the plaintiff’s attorney alleged quite strongly that the cataract was caused by Dr. Kidd himself, because he accidentally tore the lens with his vacuum in performing the washout. At issue is whether the vacuum was pointed up or down, whether Dr. Kidd could see what he was doing, and how a cataract could have otherwise developed. It was established that Dr. Kidd couldn’t see what he was doing with all the blood in the eye, but there seems to be no reason why he would have held the vacuum pointed down when it is always held pointed up. At the same time, I find it hard to accept that a cataract just developed in Tyrone’s eye in the hospital—because the cataract wasn’t seen on August 12, 13, or 14, before the eye was completely covered in blood. It seems strongly suggested to me that Dr. Kidd made a mistake here, and likely caused Tyrone’s cataract, but I don’t feel like the plaintiff’s attorney gave us a preponderance of evidence that this was the case.
What did seem shown by a preponderance of the evidence was that Dr. Kidd made a mistake on the next surgery. He went back into Tyrone’s eye on the August 21 to remove the cataract, and at that point decided to implant a synthetic lens. Normal procedure would call for this, or the use of a contact lens, which in a two-year old seems problematic. However, and this is the central but, the interior of Tyrone’s eye was seriously inflamed from having blood in it for nine days, and from the surgery two days ago, and as well, Dr. Kidd himself noted in his report that there was scarring in the cilliary body around the lens chamber, which he was unable to fully remove. So where did he put the lens? In the cilliary body, up against the forming scar. The plaintiff’s attorney alleged that Dr. Kidd departed from accepted medical practice in putting a synthetic lens into the inflamed eye, and he proved it—not only by expert testimony, but from the medical records themselves, because what happened next and what eventually caused Tyrone’s eye to die was a fibrotic growth over the lens, which had tilted and shifted and caused increased inflammation by August 22, the very first post-operative day, inflammation which only grew over the next days and weeks, showing clearly that the Tyrone’s eye wasn’t accepting the lens. Dr. Kidd finally removed the lens and the fibrotic growth on November 13, but by then it was too late: Tyrone’s vision had suffered too long to save.
The final three counts of malpractice concern what happened from August 26, when Tyrone was discharged from the hospital (with increased inflammation and a de-centered lens, remember), until November 13. The plaintiff’s attorney alleged malpractice that Dr. Kidd did not take Tyrone back into the hospital when he saw the patient again on September 4, September 28, or October 2. He alleged malpractice that when Dr. Kidd performed an examination on October 9, he should have removed the lens then and did not. Lastly, he alleged malpractice when Dr. Kidd performed the surgery of November 13 and failed to remove all of the fibrotic growth. Throughout this period, there are problems, inflammation, and complaints from the child and his mother. The defense alleged that the inflammation was caused because the mother, Ms. Stevens, did not properly administer the anti-inflammatory eye-drops prescribed by the doctor, and also worsened because she cancelled an appointment on September 11. The second point is irrelevant but worth looking at: it turns out that she cancelled her appointment because she was looking for another doctor, and she only went back to Dr. Kidd because no one else would take her (because of insurance—all this came out only after the trial). As for the eye-drops, Ms. Stevens testified herself that she only gave them 3-4 times a day, when they were issued to be given once an hour. As much as this might have been a factor in Tyrone’s worsening inflammation, it was a lesser factor than Dr. Kidd’s treatment for four reasons: First, Dr. Kidd knew by September 26, when Tyrone was discharged, that the anti-inflammatory eye-drops were not working. Second, Dr. Kidd himself testified that there is no accepted standard for prescribing the eye-drops and that sometimes more or less is prescribed as necessary and that he himself prescribed a very aggressive dosage. Third, Dr. Kidd is the doctor and Ms. Stevens is the patient’s mother—although she is definitely responsible for taking care of her child, the doctor is responsible for medical care, and if he sees that his medical treatment is not being administered or not working, he needs to do something about that, which he did not do. Finally, and most importantly, the eye-drops were supposed to deal with a symptom of the problem, not the problem itself—if it hadn’t been for the lens inflaming the eye in the first place, the eye-drops wouldn’t have been necessary.
It seemed clear to me, from the evidence presented, that Dr. Kidd should have taken Tyrone back in on any and all of the three post-operative visits in September and October, and as well that in failing to remove all the fibrotic growth on November 13, he failed as a doctor. As to not performing the surgery on October 9, I would say that it seemed he should have, or at least scheduled a surgery, but I’m unsure if I’m willing to call that a departure from standards. The defense relied on its “stupid, poor, irresponsible nigger” stereotype, however, and that seemed to work for the jury.
I watched the verdict sheet read before deliberations, and I counted at least three and perhaps four questions where I felt the answer was shown to be yes, Dr. Kidd departed from accepted practice through negligence or error. I watched the verdict sheet read after deliberations, which lasted, charitably, about two hours, and felt sick to my stomach when on every count the jury cleared Dr. Kidd.
Largely middle-class, except for one not-very-bright and often confused young black man who’d just gotten a janitorial job with Bloomberg Media, the jury seemed to side with the defense in blaming Ms. Stevens rather than Dr. Kidd for the faulty care her son received. We had lunch together after the verdict was delivered (the court pays for lunch that day, and so we all waited five or ten minutes for it to arrive, except for the young black man, who it seems was socially excluded by the rest of the jury except one guy), and the attorney’s came up and spoke with us, so although I wasn’t able to hear the deliberations that led to their asinine verdict, I was able to pick up some clues.
One of the women was an attorney herself, at the DA’s office, and she sided with the pregnant mother juror in blaming Ms. Stevens for not giving the drops, and in asserting that putting a contact lens in a two-year old would be a bad idea—implicitly relying upon the suggestion that Ms. Stevens would be incapable of maintaining the care, probably because she was a dumb and poor. Another juror, a middle-aged female judge in the appellate courts, over lunch complained about frivolous malpractice lawsuits and the urgent need for tort reform. That’s three out of six. Then there’s the not-very-smart black guy, who was maybe bullied or maybe confused, or maybe he was persuaded by a careful consideration of the evidence, who knows. He just shook his head and said “Fair’s fair, it’s hard and you gotta know but fair’s fair.” What that meant I’m not sure. The fifth was a disabled, retired building contractor, stereotyped middle-aged Brooklynite white guy with a mustache and an attitude of go-along-to-get-along. I can’t imagine him standing up to anyone on anything, and the deepest commentary he offered over lunch were these two bits of wisdom: “Someone’s gotta lose,” and “Well, at least it’s over.” The last guy was an older, retired businessman, an immigrant from Serbia who’d been successful in America, and he was the one juror who thought Dr. Kidd had made a mistake in not taking Tyrone back in September. I don’t know why he voted the way he did, generally, and he didn’t say anything over lunch or to the attorneys.
The majority of the jury seemed smart enough and strong enough, and they could convince the less intelligent or less argumentative members to go for five out of six because they all wanted to finish the damn thing and go home. If they had been interested in justice, the evidence, and holding Dr. Kidd accountable to medical standards, they would have been able to return a verdict of at least two counts of malpractice. Instead, I believe they showed a meanness of spirit, a pettiness of vision, and a weakness of ethical standards that repulses and disgusts me, and did injustice to both Tyrone Stevens and the standards of the medical profession. To hold the child’s mother responsible for the failures of the doctor is reprehensible. To render a verdict based on a disdain of “frivolous lawsuits” shows a contempt for the very idea of law. To accept a verdict on any considerations other than the evidence, which I believe showed that Dr. Kidd departed from accepted practice, is a failure, whether of integrity, intelligence, or vision, I cannot say—each juror knows for themselves the compromises they make.
American democracy is built on such people, American law depends on them, people who will choose injustice because it is more convenient, because it is easier, because they don’t think poor, uneducated black women from the ghetto should be able to sue doctors who make mistakes, people who consider the spectacle of the trial more important than the evidence, who go-along-to-get-along, and most importantly, people who favor authority over the underdog, whether it’s the authority of a doctor’s testimony over a mother’s, or the authority of the articulate over the uneducated, or the authority of the rich over the poor. People who don’t think Ms. Stevens deserved $2.6 million because she was uneducated and poor, and that this was more important than whether or not the person in authority, Dr. Kidd, gave proper care and adhered to proper standards, whether or not Dr. Kidd made Tyrone blind. These are the same people who ignore Republican scandals because “that’s the way things are done,” the same people who tactitly think the President should be able to invade other countries, tell lies, and torture people because he’s the President and he knows better, the same people—“liberal” or “conservative”—who accept cynicism, injustice, and pettiness as a way of life. This is American democracy and American law, and this is America’s future, these people and the millions like them all across the country who have lost the democratic spirit.