A spider bite, inexperience, and a lying doctor all led to death. Is the meth a problem? Brooks Cutter, TLC graduate and faculty member, had to work hard with his team to discover the deep story of this case so he could prove it to the jury.
Brooks, congrats on this win. Could you give our readers a little background on the case? Sure. This case is about a 45-year old man named Cosme, living in Blythe, a small town in California near the Arizona border. Cosme developed an infection in his left arm that he thought was from a spider bite. He went to the small community hospital in Blythe, Palo Verde Hospital, which was being run as a for-profit hospital by a bigger corporation. He was taken to surgery there. The surgeon found dead tissue in his arm which is a key indicator of necrotizing fasciitis. He cultured some of it, but he didn’t cut out the dead tissue. After the surgery, the next day, Cosme was doing worse with a white blood cell count that kept going up. They decided to transfer him, but the doctor had trouble finding a hospital that would take him. So the “work around” that the doctor went with to get him admitted to another hospital was to conceal the severity of Cosme’s condition. He called a young, inexperienced internal medicine doctor at another hospital and asked him to take Cosme. The doctor from Palo Verde Hospital said, “Look, I’ve got this patient with an infected arm and he’s going to need more surgery”; but he didn’t tell the other doctor that Cosme had necrotizing fasciitis. The young doctor agreed to take him, not knowing the full story. When Cosme got to the second hospital, they said “What is this? This is not what we were expecting.” They kept him on a gurney in a room all night while they tried to transfer him again. Eventually, he was transferred to Scripps Mercy in San Diego after a long night of being shuttled around. By this point, he was too far gone. His infection had spread. The doctors there took him into emergency surgery and cut out a lot of the dead tissue, but overnight he worsened. The next day he died. A fellow TLCer, Suzie Mindlin, and one of her colleagues, Steve Root, tried this case back in 2010. They got a great verdict, but the interesting thing was that the jury found the second hospital, and the young doctor who took the patient, the most responsible. They found the original doctor 10% responsible and that he was not negligent. They did find some intentional misconduct. The case went up on appeal and the Court of Appeals reversed in part. Steve and Suzie settled with everybody except for the original hospital, and then they asked me to come in and re-try the piece of the case that was unresolved, which was this piece involving Palo Verde Hospital, and the original doctor as the agent of the hospital. On re-trial, we were able to prove his intentional concealment. Intentional Concealment is an intentional tort, so the medical malpractice caps in California do not apply. What made this case the most challenging? One of the most challenging aspects of the case was that our burden was to prove intentional concealment by a doctor. That’s not an intuitive thing for most juries. We are taught growing up that doctors are there to help us, not to harm us. So we really had to find a framework for talking about that. We used Trial Lawyers College techniques to do that, discovering the story, reversing roles with the players in the story, all to try to understand exactly what went on in this case. It finally came down to understanding all the knowledge that the doctor had and the choices he ultimately made to conceal and not share that information. That is how we ended up trying the case. Probably the most challenging piece of the case was that Cosme was a recovering meth addict. He had gone through rehab in 2000 and he died in 2004. In the interim, it seemed like he really had his life together. He was working at the family business and being a good dad. But unfortunately at the time of his death, he had meth in his system. The defense theory was that he died as a result of injecting meth – the shooting up or skin popping caused a different disease -necrotizing angiitis. The defense also portrayed him as a worthless meth addict. I talked about his drug addiction and problems during voir dire and all the way through the trial. Because we had been honest with the jury about it from the beginning, we overcame this defense, and the jury came back with a $2.2 million wrongful death verdict for his children. This was a nice affirmation of Cosme’s worth as a dad, as all economic damages had been resolved through the prior settlement. What part of a trial is the most scary? It’s always waiting for the jury. You never know how long it’s going to take. Sometimes it’s hours, sometimes it’s days. You just have no idea. I’d just as soon be put under for deliberation. If you really put your heart and soul into something, and you’re deeply committed to the family, like I was; you really want to win for them. You know you and the family are about to be really happy or just crushed. As you’re building your case, what kind of strategy do you use? To try my case, not the defenses; to tell the story of my clients and to not to get caught up in what the defense is doing; to try to anticipate all the twists and turns and make it about the story that I’m telling. To win a trial, you really need to give your client your absolute best. I have always been inspired by Gerry Spence’s attitude towards preparation. He is a demon for being really prepared for trial. He prepares every exam and argument and really understands and anticipates. On top of that, he brings his amazing spontaneity, creativity and skill. I have always understood that I need to do the preparation work to be able to free myself up to be creative and spontaneous during the trial, no matter what the defense brings up. In this way, I really bring my best self into the courtroom. It’s about being all-in for the client, being fully in the moment in trial. I like to win every day of the trial. Even the days when it’s their witnesses all day, I like to win those days through cross exam. It’s a contest and if you don’t think that they are doing everything they possibly can to beat you in every way, then you’re kidding yourself. It’s also very helpful to consult with fellow TLC’ers. My co-counsel Suzie did great work with the family we represented, and Ben Bun helped me find the best way to talk about the intentional misconduct.
About Brooks: Brooks is a ’98 graduate of TLC and currently serves on its faculty. He was proud to have his daughter, Margot, who spent a summer working at the Ranch, and passed the Bar this year, assist during this trial. With a long-established, respected reputation as a skilled trial attorney and a record of proven success, including Sacramento County’s highest jury verdict on record for medical malpractice, Brooks has received numerous honors for his advocacy on behalf of clients injured by carelessness, negligence, fraud, or willful intent. Brooks is passionate about community outreach and is proud to be a member of the board of directors for Sacramento’s WIND Youth Services, which helps homeless teens and young adults complete their education while obtaining computer training and other necessary job and life skills necessary to thrive independently.