When this happens to you in a medical liability case the result is clear: defense verdict. Even bloodthirsty Hitler lost stomach and called off the attack. Seeing he could not win the battle, he pulled 30,000 troops away and sent them to Italy. The Americans had landed in Sicily. Hitler wanted to bolster the Italians who always seemed ready to give up.

So who really won the battle of Kursk? You decide. The Russians admit they lost 177,847 soldiers killed, but probably more. They lost 1,600 tanks and 1,000 airplanes. Historians call the battle "indecisive," but remember this -- the Germans failed in their attack. In other words, they did not "win" the way you need to win a medical liability case by getting a plaintiff's verdict. They just could not overcome defenses. Can you?

There are at least eleven lines of defense thrown up against you in a medical liability case. You will have to surmount all of them. (1) No breach of the standard care. (2) The patient had an anatomical anomaly. This is another way of saying there was no breach, but jurors get confused, and confusion always benefits the defender. (3) Independent intervening cause. In other words, someone else, possibly the patient himself caused the injury. (4) Medical records don't reflect what actually happened. (5) Unforeseen complications arose, or these were normal complications, i.e., bad result. (6) Honest mistake in judgment. This is the different schools of thought theory. (7) No harm was intended. Not a legal defense, but an effective practical one. (8) No harm was caused by anything the doctor did or failed to do. "He was gonna die anyway." (9) The "noble physician" defense, akin to no _______________________

To overcome these defenses you need to anticipate them before they land on you like Russian shells and rockets. It is not easy, but you won't win unless you do so. Here's an example:

Facts: Doctors and hospital left a surgical instrument inside the patient's abdomen in surgery.

Defenses: We X-rayed him after the surgery and saw the instrument, but we thought he was simply laying on top of it, not that it was inside him.

Overcoming Defenses: It was a breach of the standard to do this type of X-ray: the standard called for a side view too. And they just wanted to save money by doing one type. Besides, it was a clear breach of care to operate on a man who is laying on an instrument. And here's why...

The best way to overcome defenses is to ask the defendant(s) about them! No, this does not "tip off" the defendants or "suggest" defenses they might never have pushed forward. It is foolish to think that not addressing defenses will somehow prevent them from being raised later. Defendants will always raise defenses, no matter how specious or bizarre. Lock the defendants into every word in the medical record and ask, "Does this accurately reflect..." Ask whether the doctor has any criticism of any nurse by name. "What about hospital protocols (care paths)? Any criticism of how the hospital could have done things better? Doctor, what are the three things the patient did that were the real cause of this outcome?  "Gosh, that's a lot, any more?"  Listen carefully, especially when defense counsel interrupts with a speaking _______________________