Incompetent alcoholic lawyer Paul Newman sues famous anesthesiologist Robert Towler for malpractice when a patient (Deborah Ann Kaye) goes into a coma during a C-section. The script was written by David Mamet and the film directed by Sidney Lumet
*************** defense voir dire of plaintiff's expert ********
Defense: Good morning doctor. Dr. Thompson, just so the jury knows, you never treated Deborah Ann Kay, is that correct?
A: Yes, that's correct. I was engaged to render an opinion.
Q: Engaged to render an opinion, for a price. That is correct, you are being paid to be here?
A: Just as you are sir.
Q: Are you board certified in Anesthesiology?
A: No, I'm not. It's quite common in New York State to practice. . .
Q: Yes, I'm quite sure it is, but this is Massachusetts. Are you board certified in Internal Medicine?
A: No.
Q: Neurology?
A: No.
Q: Orthopedics?
A: No. I'm just an M.D.
Q: Do you know Dr. Robert Towler?
A: I know of him.
Q: How is that?
A: Through his book.
Q: What book is that?
A: Methodology and Practice in Anesthesiology.
Q: How old are you doctor?
A: I'm seventy-four (74) years old.
Q: Do you still practice a lot of medicine?
A: I'm on the staff of . . . .
Q: Yes, yes, I've heard that, but you do testify quite a bit against other physicians. Isn't that correct? You are available for that so long as you're paid to be there?
A: Sir, yes. So long as a thing is wrong, I am available. I am seventy-four (74) years old, I'm not board certified, I've been practicing medicine for forty-six (46) years and I know when an injustice has been done.
Q: Do you indeed? I'll bet you do, that's fine, fine. Let's save the court some time, we'll accept Dr. Thompson as an expert witness.
Judge: Mr. Galvin, do you want to continue now or we could resume with Dr. Thompson this afternoon.
Plaintiff: I'll continue now.
************** direct of plaintiff's expert ***********
Q: Dr. Thompson, did you examine Deborah Ann Kay at the Northern Chronic Care Facility last night?
A: I did.
Defense: Objection.
Judge: Sustained. Yes, the witness will confine his testimony to the hospital records.
Q: Dr. Thompson, in your review of the hospital records, May 12, 1976, in your opinion, what happened to Deborah Ann Kay?
A: Cardiac arrest. During delivery, her heart stopped. When the heart stops, the brain is deprived of oxygen. You get brain damage. That's why she is in the state she is in today.
Q: Dr. Towler has testified that he restored the heart beat in three (3) to five (5) minutes. In your opinion, is that an accurate estimate?
A: In my opinion it took much longer, nine (9) ten (10) minutes. There's too much brain damage.
Judge: Are you saying that failure to restore a heart-beat within nine (9) or ten (10) minutes in itself constitutes bad medical practice?
Plaintiff: Your honor! If I may, I'd like to be permitted to question my own witness in my own way.
Judge: I'd just like to get to the point. MR. GALVIN, I BELIEVE I HAVE THE RIGHT TO ASK THE WITNESS A DIRECT QUESTION! Now let's not waste these people's time. Now answer the question Mr. Witness, please. Would a nine (9) minute lapse in restoring the heart beat in and of itself be negligence?
A: In that small context I would have to say no?
Judge: Then you would say no, there's no negligence based on my question.
A: Given the limits of your question, that's correct.
Judge: Then doctors were not negligent. Thank you.
Plaintiff: I'm not through questioning . . .your honor, with all due respect, if you're going to try my case for me, I wish you wouldn't lose it.
**************** plaintiff's cross of defendant ***************
Q: Dr. Towler, let's work backwards. Now you have a record of what happened in the operating room?
A: Yes, that's correct.
Q: I mean you made notations every seconds of the procedures . . .
A: Yes.
Q: Now these notes stopped four and a half (4½) minutes after Deborah Ann Kay's heart stopped and it resumed three (3) minutes later.
A: Well, we were rather busy, we were trying to restore her heart beat.
Q: What happened in those three (3) minutes?
A: Well we were trying to restore her heart beat?
Q: Why did it take so long to restore her heart beat? Almost nine (9) minutes.
Judge: Mr. Galvin, you are not allowing the witness to answer.
A: Thank you your honor. Brain damage. It didn't necessarily take nine (9) or eight (8) minutes, it could have been caused in two (2).
Q: Well now, wait a minute, you're saying that her brain damage could have been caused in two (2) minutes? Why is that?
A: It's right there in her medical chart. She was anemic, less blood, less oxygen. The brain was getting less oxygen anyway.
- - - - -
Q: Dr. Towler, Page 406, counter indicates of general anesthetics. Ideally a patient should refrain from taking nourishment up to nine (9) hours prior to induction of anesthetic. Does that sound familiar to you?
A: Yes. I wrote it.
Q: Methodology and practice in Anesthesiology, a general textbook on the subject is that correct?
A: Yes.
Q: And you wrote it?
A: Yes.
Q: Page 414. If a patient has taken nourishment within one (1) hour prior to inducement, general anesthetic should be avoided at all cost because of the grave risk that the patient will aspirate food particles into her mask. Is that what happened to Deborah Ann Kay, she aspirated in her mask?
A: She threw up in her mask, but she hadn't eaten one (1) hour before admission.
Q: If she had eaten an hour before being admitted to the hospital, then the inducement of a general anesthetic of the kind you gave her would have been negligent?
A: Negligent? Yes, it would have been criminal but such was not the case.
Q: Thank you.
********** direct of Kaitlin Costello Price, nurse ***********
Q: You were the admitting nurse at St. Katherine Labrey, May 12, 1976, the night that they admitted Deborah Ann Kay.
A: Yes.
Q: Did you sign this admission form?
A: Yes.
Q: Those are your initials, KC?
A: Katelyn Costello. That's my maiden name.
Q: Did you ask the patient, when did she last eat?
A: Yes.
Q: What did she say?
A: She had said she had had a full meal one (1) hour before coming to the hospital.
Q: One (1) hour?
A: Yes.
Q: And did you put the numeral one (1) on the admission slip, I mean standing for one (1) hour?
A: Yes, I did.
Q: A single hour?
A: Yes.
Q: Thank you. Your witness.
**************** cross **************
Q: You are aware of the penalties for perjury?
A: It's a crime. . .
Q: A serious crime.
A: I wouldn't do it.
Q: You would not?
A: No.
Q: In fact you've just taken an oath haven't you? You've just sworn to that isn't that right?
A: Yes.
Q: Just now?
A: Yes.
Q: You have sworn before God that you would tell the truth?
A: Yes.
Q: Now, I want to ask you something. Four (4) years ago, when you were working as a nurse, are you aware that these doctors, Marks and Towler, based their treatment of Deborah Ann Kay on this admitting form which you signed?
A: I. . .
Q: Wasn't that an oath, these are your initials, KC? When you signed this form, you took an oath, no less important than which you have taken today, isn't that right? Isn't that right?
A: Yes.
Q: Then which is correct? You have sworn today that the patient ate one (1) hour before admittance, four (4) years ago, you swore that she ate nine (9) hours before admittance. Alright, which is the lie?
A: I. . .
Q: You know that these men could have settled out of court, they wanted a trial, they wanted to clear their names. And you would come here and on a slip of memory, you'd ruin their lives.
A: They lied.
Q: They lied? When did they lie? Do you know what a lie is?
A: I do yes.
Q: You swore on a form that the patient ate nine (9) hours. . .
A: That's not what I wrote.
Q: You just told me that you signed it?
A: Yes, I signed it, yes. But I didn't write a nine (9), I wrote a one (1).
Q: You didn't write a nine (9), you wrote a one (1), and how is it that you remember so clearly after four (4) years?
A: Because I kept a copy, I have it right here.
Defense: Objection. We can't be expected to accept a photocopy when the court already has the original.
Judge: I'll rule on that presently. Please proceed.
Q: What in the world induced you to make a photocopy and hold it for four (4) years. Your honor, this . . .Why, Why, Why would you do that?
A: I thought I might need it.
Q: And why would you think that?
A: After the operation, when that poor girl, she went into a coma, Dr. Towler called me in. He told me that he had had five (5) difficult deliveries in a row and he was tired and he never looked at the admittance form and he told me to change the form, he told me to change the one (1) to a nine (9) or else, or else, he said he would fire me, he said I would never work again. Who were these men? Who were these men? I wanted to be a nurse.
Q: No further questions your honor.
Judge: You may step down. Mr. Galvin?
Plaintiff: Nothing further your honor.
Judge: Mr. Kincannon? Mr. Kincannon?
Defense: Ah, yes, thank you your honor, we object to the copy of the admitting form and we cite McGee vs. the State of Indiana, U.S. 131.2. The admission of a admission of a duplicate document in preference to an existing original must presuppose the possibility of alteration and so must be disallowed. And your honor, haven given the Plaintiff the leeway, we would like your ruling now. We object to the admission of a zerox photocopy.
Judge: One moment, Mr. Kincannon. Yes, the document is disallowed.
Plaintiff: Objection.
Judge: Overruled.
Plaintiff: Exception.
Judge: Noted. Thank you. The jury will be advised not to consider the testimony of Ms. Costello regarding the zerox form. It is unsubstantiated. We cannot accept a copy in preference to the original.
Defense: Thank you your honor. Furthermore, Ms. Costello is a rebuttal witness. As the court no prior notice of Ms. Costello's appearance and as a surprise witness, she may serve only to rebut direct testimony. As her only evidentiary rebuttal is the admitting form which has been disallowed, I request that her entire testimony be disallowed and that the jury be advised that they must totally disregard her entire appearance here.
Judge: Yes, I'm going to uphold that.
Plaintiff: Objection.
Judge: Overruled.
Plaintiff: Exception.
Judge: Noted, thank you.