By Hon. (Ret.) Ken E. Adair 
Talk to the Jury About Vulnerability
Video Transcribed: How many of you have undergone some type of surgery where you had to be put under general anesthesia? If you have, chances are without your knowledge that you were put on a ventilator because they paralyzed you to where you couldn’t breathe on your own.
It is as vulnerable as you’ve ever been in your life, including before your birth, the moment of your birth, and every point in between. At no point are you as vulnerable as when you can’t breathe and you’re paralyzed, and you have a team of doctors, and nurses, and an anesthesiologist sitting around you basically keeping you alive on life support, because without it you’d be clinically dead and then ultimately dead? So it is extremely vulnerable.
And we like to hold doctors in high esteem and we ought to hold doctors in high esteem. I have doctors that I think very highly of that I’m very proud of. But when a person is that vulnerable and they can’t breathe on their own, and they can’t move, and they can’t say, “Ow, that hurts,” or “That’s not right,” or “Something’s wrong,” and you end up being injured in the process, you need to consider the vulnerability of your client if you consider taking medical malpractice cases or medical negligence cases.
And as I’ve said in the past, avoid the terminology. There’s a lot of terminologies you need to get out of your vernacular. You need to get it out of your vocabulary. And one of them is medical malpractice because that’s a legal concept. Medical negligence, that’s an impossible concept.
Everybody makes mistakes. And when doctors make mistakes, sometimes the consequences can be catastrophic, even when they’re really, really good doctors, even when they do everything right, even when they’re good people. But a medical betrayal is something completely different.
And if you have a medical betrayal, you need to cling to that and understand that when your client or your client’s spouse, who may be deceased, or their loved one who may be permanently injured or deceased, that when they are put under, and they are put in a coma, and they can’t breathe, and they’re put on life support, even for some of the most minor surgeries, that that is a very, very vulnerable position for any person to be in.
And remember when you try your case, when you’re preparing to try your case, to keep in mind how utterly and completely lifeless and vulnerable that your client or your client’s loved one was when they were put under general anesthesia and underwent a medical procedure.
Now, not all medical betrayals, not all medical negligence cases involve general anesthesia, but a lot of them do. But just keep that in mind and be prepared to talk to a jury about that vulnerability, and be prepared to argue that to a jury after you’ve talked to them about it, and you’ve put in the medical evidence about that vulnerability and about that betrayal.
But if you don’t treat it as a medical betrayal, you’ve lost probably already, and that’s not a hundred percent true, but why roll the dice? I hope this has been helpful and I look forward to talking to you again soon. Thank you so much. This is trial lawyer Ken Adair speaking on Life support and medical betrayal. If you are looking for co-counsel services or an experienced jury consultant, visit trial.win.
