Monday, February 12, 2007

A Legal Perspective on Crewcut's Trial

In a story that has virtually escaped the mainstream media, Crewcut Charlie Weis' trial starts Monday in Suffolk Superior Court. Weis, as you recall, was embarrassed by his chronic obesity in 2002 and checked into Massachusetts General Hospital under an assumed name. He decided to undergo gastric bypass surgery and was hoping to quietly return home the next day. But complications developed and he ended up so close to death that he received the Catholic sacrament of last rites. Weis recovered, of course, and filed a malpractice lawsuit against two doctors — Charles M. Ferguson and Richard A. Hodin. The implications are already being felt back at South Bend, where Weis altered Notre Dame's spring football schedule to accommodate the trial.

As in any case of this magnitude, it's no holds barred. Weis' star witness is Patriot quarterback Tom Brady. The defense will likely find some pizza delivery boy who became good friends with Weis. In other words, this is going to get ugly, with embarrassing details of Weis' medical history expected to be revealed.

The possibilities had our head spinning, so that brought us to the law office of Tom Kirkendall, right, who also operates the fine site, Houston's Clear Thinkers, which addresses issues of interest to the Houston legal, business, medical and academic communities. Although Kirkendall's field of expertise is business litigation and he is not familiar with applicable Massachusetts law, his keen interest in college football makes him the Internet's version of Roger Cossack on this one. Here is what he has to say about the case:

"In all high-profile lawsuits such as the Weis case, the threshold issues are the applicable law and the politics of the case.

"Starting with the law of the case, the key issues in most medical malpractice cases can be categorized broadly into liability issues and damages issues. The issues in the liability category are essentially whether the doctor's actions caused the plaintiff's injury and, if so, whether the actions were of quality that were beneath the standard of care for doctors performing such procedures in the area.

"If the jury renders a verdict on both liability issues in favor of the plaintiff, then the damages issues relate simply to calculating the amount of money necessary to compensates the plaintiff for his injury and any punitive (sometimes called exemplary) damages against the doctors that may be allowed under applicable law (many jurisdictions have laws that limit the amount of punitive damages that can be assessed in such cases).

"Thus, the key legal issues in the Weis case would appear to be the liability issues. If Weis wins on those, then the damages issues will probably fall into place for him.

"It would appear from the basic facts of the case that Weis has several tall hurdles to overcome to establish liability. First, gastric bypass surgery is notoriously risky and subject to complications, so it is likely that Weis was required to sign some sort of disclaimer before surgery that reflects that he understood those risks. Second, it would appear from press reports that Weis' post-surgery complications relate primarily to infection, so it's unclear how the surgeons' actions in performing the surgery had much to do with that. Finally, it appears that the surgeon-defendants are quality doctors (one is on the faculty of Harvard Medical), so Weis may not have as an effective expert witness testifying that the doctors' standard of case was deficient as the doctors' expert witnesses (it's generally hard, although certainly not impossible, to induce good expert witness-doctors to testify against good doctors in malpractice cases). All of that could work against Weis.

"But turning to the other threshold issue — the politics of the case — Weis' case would appear to be in much better shape. My sense is that his contribution to the success of the Patriots probably makes him reasonably popular with the Boston area media and a large segment of Boston area jurors.

"Moreover, having as a witness a handsome quarterback who has guided multiple Super Bowl-winning teams does not hurt Weis' case, either. Although Weis is known to come across as somewhat arrogant, he has had enough experience in media situations that it's likely that he can be trained into becoming a disarming and effective witness in front of a jury. And wealthy doctors are not always the easiest parties to defend in front of a jury.

"So, at the end of the day, most of these high profile cases boil down to this question — do the politics of the case trump the legal issues?

"Dynamics such as the way the judge and lawyers handle the trial and the makeup of the jury can have a big impact on the answer to that question. But it is certainly not unusual for politics to trump the law in such trials.

"Those Super Bowl rings can be very effective."


Anonymous said...

"The implications are already being felt back at South Bend, where Weis altered Notre Dame's spring football schedule to accommodate the trial."

That must mean Patriot practice. If this was in 2002, it was at least two and a half years before Weis would hold a practice at Notre Dame.


Flash Sports Tonight said...

Charlie Weis is overrated.

To see the greatest picture of him ever, go to http://www.flashsportstonight and scroll down. You'll love it.

Anonymous said...

It's intellectually dishonest to characterize this case as one being facts vs. law without the specifics of the facts. To Kirkendall even wrote that his knowledge of the facts of the case is speculative in nature, so why pin it as facts vs. politics when you obviously have no particulars on the facts of the case, especially the infection (if the doctors infected Weis due to some kind of negligence on their part, it would seem that the riskiness of a properly performed surgery is irrelevant), so please attempt not to smear Charlie Weis as a manipulative fraud out to throw his influence around until you actually have some facts to base it on. For once again throwing Charlie Weis under the bus, you really owe the man an apology.

Anonymous said...

Just a comment from a litigator occasionally involved in Medical Malpractice cases in New England: Juries generally don't buy 'risk of the procedure' arguments, and in risky procedures, they seem, in my experience, to expect more competent and watchful care, not less.