When the Doctor and the Nurse Blame Each Other: One Case and What Families Should Expect

The last chapter gave you the vocabulary: cross-claims, counterclaims, and third-party defendants. Words like those mean little until you watch people use them, so this chapter follows one case that I was involved in. I tell it without names or identifying details. The family, the hospital, and the people who worked there stay out of the telling, because the case teaches what it teaches without them.

At the center are two people. One is a nurse watching a mother in labor, and the other is a doctor who is at home and on call. What passed between them, and what each of them said about the other once a family brought a lawsuit, shaped how the case was negotiated. It is not an easy case to tell, even for me, because it ends with a child who is permanently injured.

I tell it for three reasons. It shows what finger-pointing looks like from the inside. It shows what that finger-pointing did to a settlement. And it ends on a mistake I see families make, one I would rather name now than let you find out later.

In the typical situation, the doctor is either not in the room or at home, and the nurse is the one coming in to check on the patient. Doctors do get to go home. They take call, which means they are home, and if one of their patients has a problem, the nurse is supposed to phone. That was the arrangement in this case.

The nurse was new and fairly inexperienced. At some point she saw something on the baby monitor that she thought was a problem, and she called the doctor and asked him to come in. He did. A nurse has to be careful about how often she asks. Doctors do not like to come in all the time, especially when a mother is in early labor, and a doctor who is called in again and again can cause a lot of friction in the way the two of them communicate.

The doctor looked at what had worried her and said it was nothing, just early labor. Then he went home.

Many hours later, the nurse expressed another concern. Pay attention to how the first visit colored the second call. The way I tell it, the doctor had already come in once and judged that what she saw was not a big problem, so he did not think she was seeing anything concerning this time. He did not come in. He told her it was fine.

Chapter 8 covers this: everything is charted, all the times and all the actions, including when the nurse comes in and goes out and when the doctor does. A sequence like this one, a first visit, a departure, and a second concern many hours later, is the kind of thing those timelines exist to lay out.

What was happening to the baby, as I explain it, was that the baby was being deprived of oxygen. The reason we knew is the baby strips.

If you have been in labor, or in the room with someone who was, you remember the belts. One goes around the stomach and measures the contractions. The other measures the baby's heart rate and draws the little squiggly lines that go up and down. Those are what we call the baby strips, and the lines mean something. Nurses and doctors have to read them. Chapter 8 shows how an expert reads them against the rest of the chart.

To explain what a baby in distress does: the baby communicates. "The baby says, Hey, pay attention to me. I'm not doing so great in here." As I explain it, the heart rate goes way up, because the baby is working harder while it is deprived of oxygen. That engine, if you will, can go only so far. When the baby runs out of gas, with nothing left in the tank, the heart rate drops, and the baby is in serious trouble.

That is what happened here, as I tell the case. The baby was born with terrible, permanent brain damage and did not walk or talk or see or hear. In a birth injury case the strips are the biggest piece of evidence I can use, because they can show when an injury occurs, whether it came from a delay in delivery or from something earlier.

I do not tell this part easily. "I've done this for so many years, but I never lose sight. It really gets me because I can see just how much the joy of a birth has been ruined by things that were preventable." Birth injury cases are the toughest ones, at least for me, to handle, because a family's life is turned upside down at the moment they expected joy.

You can imagine how much finger-pointing there was in a case like this. Picture the nurse saying, "I told you there was a problem. You didn't come in." The doctor's answer, as I picture it, went to her experience: "You don't have a lot of experience. You called me in for nothing. I really didn't trust that you knew what you were talking about."

Each of them pointed at the other. The nurse said she had raised the alarm and been ignored. The doctor said she had called him in once for nothing, so he had no reason to believe her the second time.

I should say that this was not the usual picture. Cross-claims are very rare, and in many cases the doctor, the nurse, and the hospital stand together. Chapter 16 explains what we call a cross-claim, the formal way one defendant points at another inside the lawsuit. What I follow here is the finger-pointing itself, and what it did to the negotiation.

From where I sit as the plaintiff's lawyer, a defense that turns on itself works in my favor, and more so if I can get the defendants to do it in front of a jury, because then they are fighting among themselves.

None of this comes from disliking doctors. I have doctors who are friends of mine, and I do not hate doctors. My concern is accountability, and the system that has to answer for what happened.

The finger-pointing put the case in a very good settlement posture. In our negotiations we kept telling the other side that we were going to present the case to a jury, that the finger-pointing they were doing would inflame that jury, and that it could be very dangerous for them. The doctor would not back off. He was adamant that he was going to keep pointing at the nurse.

With that degree of finger-pointing, we were able to make a settlement higher than we had anticipated. Negotiating and trying to resolve a case out of court is something I favor, and a case like this one shows why. A trial puts your case before jurors, and you do not know what they will do. The trial you picture is not always the trial you get. Negotiating leaves you with much more control. Once a case is settled it is final and done, while even a jury win can be appealed, and an appeal can take years and years.

The decision whether to settle, and for how much, belongs to the client. I say so right up front. Chapter 18 takes up settlement, mediation, and trial in full.

I describe a result like this one as bittersweet. "I wish this baby was never born this way." I wish the parents had never had to call me. But my job is to make sure that the child is adequately compensated for the rest of his or her life and gets all the care that child needs.

The common mistake is this. A family sees cross-claims and blame going back and forth between the defendants and concludes that a jury is certain to vote for the plaintiff, so there is nothing to worry about. That is a mistake because it is not how it works.

Even in cases of finger-pointing, jurors have come back and voted for the doctor and the hospital, and not found in favor of the plaintiff. The plaintiff's lawyer still has to present the evidence and tell the story, and blame between defendants does not tell it for us. Chapter 15 is about building that story, and finger-pointing is one fact inside it, not a substitute for it.

It does not even mean a large settlement. Though we advocate for large settlements, there are times when the doctors, the hospitals, and the insurance companies are adamant, and they want to go forward. The settlement in the case I described is a report of what happened there. It is not a forecast for yours.

The mistake that sits underneath the first one is not managing expectations, and the time to start is the first conversation. I tell my clients not to assume that finger-pointing means we are going to win, or that it even means a large settlement. At the beginning, the expectations have to be aligned, mine and the client's.

A lawsuit is like going into a foreign country. You do not speak the language, so you need a guide, and what people want is a roadmap. I explain what the process looks like, how long it is going to take, what the potential outcomes are, what the decision points will be, and what your involvement is.

That includes the answer to the first question, which is whether there is a case at all. Sometimes, on a first call, I can tell a caller there is no case. When there may be one, it takes months of investigation before I can say.

It also includes the facts that hurt. A case has a bad fact, something somebody did that you wish they had not, and it exists on both sides. A bad fact does not go away. It comes back at the end, and if one is serious enough that continuing may not be a responsible decision, I believe a lawyer has a responsibility to tell the client. Chapter 15 takes up bad facts. For this chapter, the point is that an expectation has to include them too.

Nobody can undo what happened to this child, and I wish somebody could. What I can do is hold the system accountable. "Accountability is a big deal for a lot of my clients." They know that mistakes happen, and they are not willing to just let it go. Money is part of that, though I know it can feel like a hollow thing to talk about. A family that understands from the first day what a lawsuit can and cannot do is a family that can decide well when the hard moments arrive.