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Attorney: Richard Warren Mithoff, 54 Firm: Houston’s Mithoff & Jacks Case: Romero v. Columbia/HCA Healthcare Corp., No. 98-48856 (Dist. Ct., Harris Co., Texas) The timing of witnesses in a trial can be crucial, says plaintiffs’ attorney Richard Warren Mithoff. In any trial, for instance, “I almost always try to call my client last,” he says. “I want the case proved by the time the plaintiff is on.” The plaintiff then humanizes the case and establishes the loss, he says. This placement at the end also lends drama to the presentation, he says. In the medical malpractice trial profiled here, Dolores Romero, the wife of a man who had sustained severe brain damage during routine back surgery, was in the courtroom the entire time. But Mithoff waited before calling her to the stand. All through the trial, he says, “the jury was anticipating, waiting to hear from her, ready to hear from her.” This ability to create dramatic moments has served Mithoff well in a career representing plaintiffs in personal injury, products liability, medical malpractice, and other such litigation. He has won more than 30 verdicts and more than 50 settlements of $1 million or more. He has won more than 90 percent of the cases that have gone to jury. BOTCHED ROUTINE OPERATION Mithoff was called in to handle the Romero case shortly after the surgical injury occurred. Mr. Romero, a 40-year-old dockworker, had gone to Columbia Kingwood Medical Center, north of Houston, for a routine repair of a herniated disk. During the operation, says Mr. Mithoff, Romero began losing a profound amount of blood.” The high range of normal for blood loss would be 1,000 to 1,500 cubic centimeters of blood, the attorney notes. “He lost 6,800 ccs.” Despite the bleeding, he adds, the surgeon “didn’t stop the surgery or communicate with the anesthesia team to replenish the blood.” Mr. Romero went into cardiac arrest and sustained severe, permanent brain damage. Ms. Romero, on her own, her husband’s, and their children’s behalf, sued the surgeon, Dr. Merrimon Baker, as well as the anesthesiologist, Dr. William Huie; the nurse anesthetist, Linda Fincher; and the hospital, charging negligence. The charge against the anesthesia team was that it, too, had failed to respond properly to Mr. Romero’s bleeding. Mithoff began preparing the case by investigating Baker. “I want to find out everything I can about people involved. I wanted to know what problems he had before this, what other doctors would say about him. … We did a computer search of prior lawsuits, filings, pleadings, depositions.” He also checked whether Baker had licenses in other states and any prior adjudications. CHECKERED PAST What he learned, he says, was that Baker had been placed on staff by Kingwood in 1996, even though he had been sued for malpractice 11 times before, Mithoff says. The suits included one involving an incident in which the doctor had removed and replaced the wrong hip. In another suit, filed in 1998, Baker was accused of operating on the wrong leg, says Mithoff. In investigating further, Mithoff says, “I found that his license had been denied in one state for forging an application.” The investigators also discovered that the doctor had been fired from a practice “for patient safety problems.” Early on in this research, Mithoff took Baker’s deposition. At this time, Mithoff knew about the other litigation, but he was looking to use Baker to provide additional leads. “I suspected drug usage,” he says, “but Baker looked me right in the eye and denied drug involvement.” Tracking drug use information is difficult, he says. “You have to talk to ex-wives and ex-girlfriends. He had plenty of both. … [W]e sent out investigators to track these women down.” People started calling him with tips. One of these calls “led me to the chief of staff at Kingwood, Dr. Ron Kerr. He had tried to keep Baker off the staff,” Mithoff says. This investigation altered the case considerably. The plaintiffs added another charge against the hospital. The first charge was simple negligence. The new charge was less common. The plaintiffs charged the hospital with malice in allowing Baker to operate in the first place. The hospital should have known about the previous malpractice lawsuits and the reasons he had been denied a license elsewhere, the attorney says. The hospital should also have been aware, he says, that two months before the Romero operation, “Dr. Baker had been suspended from another hospital.” Adding the charge of malice brought significant obstacles, says Mithoff. Under a previous U.S. Supreme Court decision, he says, before the jury could find a hospital responsible for improper credentialing, “we had to prove actual awareness,” he says. “We had to show what any reasonable hospital should have done and that the hospital had to be aware of the risk.” Before jury selection, Baker and Huie settled, for a total of $2.2 million. But Baker remained the focus of the trial. Mithoff started the presentation with the video deposition of Baker. “I never started a trial with a videotape before,” says Mithoff. “But in this case, Dr. Baker was Exhibit A.” The plaintiff contended that Baker was an accident waiting to happen and that the hospital should have known this. Presenting the videotape, Mithoff says, “was like marking him with a sticker and entering him in evidence.” Using the deposition was better than bringing Baker on live, he adds. “We didn’t want him to have the opportunity to explain it away.” In addition, in a deposition, “it’s entirely my cross. The other side doesn’t do a direct examination. You see no one else, just me.” He continued to establish Baker as exhibit A with Dr. Kerr, who testified that he had investigated Baker in 1990 in an unrelated matter and had discovered that a South Carolina practice had fired him over patient care issues. Mithoff then moved to questions on Kerr’s ongoing opinions about Baker. He could not ask Kerr directly if he had recommended against accepting Baker at Kingwood. Because the peer review committee was privileged, he had to skip around the subject. Under indirect questioning, Kerr admitted that, at the time of his 1990 investigation, he felt that Baker presented a risk to patient safety and that his opinion had never changed. The clear inference, Mithoff says, “was that he had recommended against him.” Mithoff then turned to the lay witnesses, including two former office managers for Baker and one of his ex-wives, to establish that Baker had a long-term problem with pain-killers. One office manager testified that she had discovered sample packages in Baker’s office with the drugs removed. The ex-wife testified that she had gone to drug counseling sessions with Baker before the Romero surgery. The cross of the hospital’s credentialing witness, Gary R. Binder, provided the final blow to the hospital’s defense, however. Mithoff had Binder reiterate his deposition statement that many doctors took the prescription pain medicine Vicodin and were not necessarily impaired. “I confronted him with the ‘Physician’s Desk Reference’ and took him through the warnings for Vicodin. ‘Do not operate vehicles. Do not operate heavy machinery.’ I asked him, ‘Are you telling the jury it’s not all right to operate a vehicle but it’s all right to do surgery?’ He started backing off. I’ve never seen a witness crumble that quickly.” On April 7, a Houston jury awarded the Romeros $40.6 million, including $12 million in punitives against the hospital on the malice charge. The jury, however, found that the nurse anesthetist was not responsible for the injury. On the finding of liability at 40 percent for Baker; 20 percent for Huie; and 40 percent for the hospital, the compensatory award against the hospital was reduced, leaving the total judgment, including prejudgment interest, at $26 million. The hospital has paid $4 million but is appealing. Tips: � Create drama in the presentation. � Do thorough research on the defendants. � Use depositions at trial to skewer your opponents

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