Mid-Term Assignment

Facts:

Ms. Jessica Albert was a 58 year old female who presented to the Emergency Room at an outlying community hospital, Sheron Regional Medical Center, on August 8, 1999. She had a history of hypertension, as well as a one week history of a headache and a three day history of mental status change. A CT scan of the brain was consistent with a left middle cerebral arterial stroke. Accordingly, Ms. Albert was admitted and treated by her neurologist, Dr. Edward Jenkis, for stroke.

Two days later, on August 10, 1999, the patient worsened. A radiologist report on the repeat CT of the brain reflected a probable increasing stroke on the left side or a new massive stroke on the same side. The situation appeared grave.

Dr. Jenkis performed a lumbar puncture that day, and ordered a PCR [Polymerase Chain Reaction Test]. A PCR takes several days to complete. It is designed to rule out a CNS viral infection, specifically herpes simplex encephalitis [HSE], a viral infection which, when it invades the brain, can mimic stroke.

HSE is a devastating disease, which most often results in death or severe neurologic deficit. However, HSE is treatable with an anti-viral medication known as Acyclovir. There is literature which suggests that any patient in whom HSE is even remotely suspected should be given Acyclovir empirically, because the potential benefit of getting the drug early in the course of the disease is great, while the risk of adverse reaction associated with administration of Acyclovir is minimal. However, Dr. Jenkis did not start Acyclovir, thinking the patient probably did not have HSE. Ms. Albert had symptoms that were strongly consistent with stroke, and which were in some arguable respects inconsistent with HSE. Dr. Jenkis had been taught in medical school that, "when you hear hoofbeats, think horses, not zebras." That is what Dr. Jenkins was doing in this case. He saw signs consistent with a common ailment - stroke - and in a patient with risk factors for stroke. In fact, Dr. Jenkis had never seen a case of HSE, which is true of most neurologists because it is a rare disease. He never really considered HSE, and only ordered the PCR because he was taught in his residency that if a spinal tap is done, a PCR should be routinely ordered, just to see if anything should show up. In any event, Dr. Jenkis is being sued under allegations of negligence for failing to start Acyclovir empirically, with the focus of the suggested treatment being the 10th.

Dr. Jenkis had not received the report on the PCR by the 13th . At that time, at the family's request, the patient was on "Do Not Resuscitate" [DNR] status, with an expectation she would die shortly. However, on August 13, 1999, the family decided to transfer the patient to an urban medical center hospital. By the time she arrived, the patient was comatose. Once there, Acylovir was almost immediately started, on an empiric basis. However, it was predictably ineffective. HSE was ultimately diagnosed at the urban medical center hospital, by a brain biopsy. She continued to deteriorate and ultimately died from complications associated with brain swelling secondary to HSE.

Statistical evidence in the literature suggests strongly that the key to survival of HSE is directly correlated with the patient's neurologic status when Acylovir is started. However, this is by necessity based entirely on retrospective evaluations of patient charts, with no attempts being made in the studies to compare anything among the patient study groups other than broad comments regarding neurologic status at time of initial treatment and outcome. The patient populations in the studies were extremely small, because of the relative rarity of the disease.

Plaintiffs have retained Dr. Richard Batsinger, a neurologist who is the most widely published expert on HSE in the world, as one of their expert witnesses. Dr. Batsinger testified at deposition that, based on his review of the chart of Ms. Albert, compared to his education, knowledge, experience, and the results of the reported literature, had Ms. Albert been started on Acyclovir on the 10th, there was a greater than 50% probability that she would have survived with minimal neurologic deficit. The relevant portion of Dr. Batsinger's deposition testimony follows:

Dr. Richard Batsinger:

Q. Is there any scientifically supportable way to reach an opinion to a reasonable medical probability as to whether Mrs. Albert would have been able to survive without ventilator assistance if Acyclovir treatment had been started on the 10th?

A. I don't think you can predict that with scientific accuracy, because as I explained to you before, I don't think we have the scientific data that would allow it. However, I can state, with reasonable medical certainty, that had Acyclovir been started on the 10th, there is greater than a 50% chance the patient would have survived with minimal neurologic deficit.

Q. By putting such a number on it, you are, at best, stating a probability? A statistical probability number, correct?

A. Yes, with a very wide confidence level.

Q. What you are saying is that if there were 1,000 patients that were similarly situated as Mrs. Albert was on the 10th, and they were started on Acyclovir at that time, in reasonable medical probability or certainty, at least 501 of them would survive with minimal neurologic deficit?

A. Yes. Exactly.

Q. And that means that, with equally certain medical probability, up to 499 of those patients either would not survive, or would survive with severe neurologic deficits?

A. Yes, that is certainly true as well.

Q. Tell me then, Dr. Batsinger, how would one determine on a scientifically supportable basis whether it's likely that Mrs. Albert, this individual patient, would have fallen among the 501 group or the 499, if we were able to quantify that number?

A. Can't.

Q. Why not?

A. Because it is impossible to obtain that data. So what you do is you give the Acyclovir at the earliest possible time, and you push ahead and you try to maximize their care. But because Ms. Albert was not timely treated with Acyclovir, we have no possible way of knowing for certain whether she would have been among the group with her level of consciousness who probably would have survived with timely treatment.

Q. Then you cannot rule out with certainty the possibility that Ms. Albert, even if she had been treated with Acyclovir on the 10th, would still have died the same time she did and from the same cause?

A. No one can possibly tell you that for certain.

Q. So, Dr. Batsinger, if you assume with me Texas law requires that, to prevail, a plaintiff's expert must exclude, with reasonable medical certainty, all other possible causes of death other than physician negligence, would you would agree with me that no physician under these circumstances would be able to testify that this patient with reasonable certainty would not have died even if she had been treated with Acyclovir on the 10th?

A. When you put it that way, no one could disagree with the question. However, I disagree vehemently with the premise. From a medical standpoint, doctors have a duty to their patients to do everything they can to maximize the patient's chances of recovery with timely diagnosis and appropriate treatment. What you are suggesting is that Dr. Jenkis should not be held responsible because his negligent care of the patient prevents medical science from stating for certain that the patient would have survived if Dr. Jenkis had not negligently missed the diagnosis.

Q. Tell you what. We'll just let the Texas courts decide that one.

Trial:

The case is scheduled for trial. The defendants file a Robinson/Havner pre-trial motion to preclude Dr. Batsinger from testifying that Ms. Albert probably would have survived with minimal neurologic deficit had Acyclovir treatment been started on the 10th.

Assignment:

Those students whose names are alphabetically from Agena through Jibowu, inclusive, prepare a three page maximum trial brief supporting the admissibility of Dr. Batsinger's testimony in this regard.

Those students whose names are alphabetically from Judd through Williams, inclusive, prepare a three page maximum trial brief supporting the Robinson/Havner motion.

	Do not use case captions or signatures. Simply put at the top of the brief: Trial Brief in Support of Causation Testimony of Dr. Richard Batsinger, or the opposite, as appropriate.
	Use 12-14 point type, sans serif. Use one inch margins all the way around the brief.
	No attachments.
	No lengthy case quotes within the brief.
	Use Texas law.
	Cite cases correctly, including jump page cites.
	Use no boilerplate, such as: "To the Honorable Judge of Said Court:" or "Come now the plaintiffs," or "Wherefore, premises considered." Just start with the reasoning and make a succinct and persuasive case supporting your position.
	Print your name legibly at the bottom of the brief.

Grading:

Pass/Fail. Any student who does not turn in a brief or whose brief indicates insufficient effort will be penalized by having five points subtracted from his or her final grade.

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