Legal Pearls: Medical Malpractice Attorney’s Celebration Endangers Win for His Physician Client

  • The Trial

    The defense attorney told jurors that the claims against the doctor were baseless and akin to extortion. According to the court transcripts, the attorney put on a spirited defense, arguing during his closing “I take pride in what I do, and I’ve got to tell you, in the 30 years I have been doing this, I have never seen a more insulting, factually devoid presentation in my entire career.” He argued that the case was part of America’s “personal injury machine” and that jurors should disregard the death certificate, which attributed death to sepsis and peritonitis due to the perforated colon. After only 26 minutes of deliberation, the jury returned with a verdict in favor of the physician.

    The Aftermath

    However, later at a staff celebration, his description of the case was quite different. The celebration was videotaped and briefly uploaded to the law firm’s social media before they realized it was an error. Before it was removed from the firm’s site, it was posted on Twitter and Instagram, and shared more than a thousand times. In the video, the defense attorney is recorded as saying that the case involved “a guy that was probably negligently killed, but we kind of made it look like other people did it.” He went on to say “we actually had a death certificate that said he died the very way the plaintiff said he died, and we had to say, ‘No, you really shouldn’t believe what that death certificate says or the coroner from the … coroner’s office.’”

    The defense attorney had been unaware that he was being recorded, and has apologized to his client, opposing counsel, and the legal and medical communities. He has said that his remarks were part of an internal briefing and used “shorthand phrases which might understandably cause confusion for a lay audience unfamiliar with the case at hand and the law in general.” He does not believe his remarks should call into question the jury’s verdict.

    The Bottom Line

    The plaintiff’s attorney, however, disagrees and is appealing the case based on the inflammatory closing argument and legal errors at trial. While many lessons can be learned from this scenario, the one that applies to all professions is: Be careful with what you post on social media.

    Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly the director of periodicals at the American Pharmacists Association and editor of Pharmacy Times