Professional Documents
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A transcript of Ms. Atkinsons closing argument in Jean Alburger v. IGA Hospital Corp. is
included as an Attachment.
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
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STATE OF MICHIGAN
Defendant.
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Linda Miller Atkinson
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knowledge you might have about care of elders, nursing
responsibilities for fall prevention, and what you know
about risks of falls. I mentioned once that we were
looking for jurors who would let us all start even at the
beginning of the trial. The judge talked about it as
being at the 50 yardline. But the concept always
reminds me of the scales of justice being even at the
start of the trial, as you see on the chart at the top
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
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Linda Miller Atkinson
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from the standard of care. And the very last witness
referred to it as well, this is ideal but we don't
really expect people to do that. But the truth is
that's the rule. And even the last witness, Defendants
professional witness Nurse Moew-Cooley recognized that
this is the rule. We know if we look at all the
evidence it shows that they broke these rules. She
didn't want to say that. She just wanted to say well
that's ideal. But you could tell from what she said
and the way she said it that she knew they broke the
basic rule of their profession.
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
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Linda Miller Atkinson
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risk assessment. There are some initial shift
assessments. But how did the nurses carelessness cause
Arliss Alburgers fall?
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
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Linda Miller Atkinson
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Carillo to be concerned about Arliss Alburger and about
her increased fall risk?
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
answer: Did the nurses break the rules, and did that
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Linda Miller Atkinson
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has already ordered that it is an undisputed fact in
this case that Arliss Alburger died from injuries
caused by the fall on April 17, 2002.
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
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Linda Miller Atkinson
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This--you'll find this fracture is called the zygoma,
this ridge of bone along here that, to which your jaw
is attached. That was fractured. And you can see in
these photographs the, the bruise and the bruising around
her face.
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
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example.
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Linda Miller Atkinson
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those fall assessments, page five and six, that first
initial one, and then the initial assessments through,
for the shifts, pages 25 and 26, 29 and 30, 33 and 34,
37, 38, 42, that pack. As we went through the week you
all looked them up and looked at them so I don't need to
tell you more about them. Except to ask to what the
extent Carillo and Schroeder used those tools or not and
if their omissions were unreasonable.
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
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Linda Miller Atkinson
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bed alarm.
Remember Nurse Morse-Cooley said, well, it had
been assessed and taken care of. I think she said
assessed and addressed. That's not the question. The
question is was the casual attention enough? Was it
reasonable? We do know that this is a patient with a
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get out of bed and think maybe she's at home, and not
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
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Linda Miller Atkinson
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that Dr. Mondejar testified in her deposition that on
April 17, 2002, she expected Arliss Alburger to maybe go
home in the next two or three days and be fine. Those
were her words be fine, not drop dead.
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
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the week and how content she was with Arliss's progress
on that acute disease process, that pancreatitis.
Another part of Dr. Mondejars testimony was
her diagnosis for admitting Mrs. Alburger to the
hospital:
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Linda Miller Atkinson
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So every witness who testified about the bed
alarm told us that has there been a bed alarm here the
nurses would have known that Arliss Alburger was out of
bed before she fell. And theres no dispute that
Defendant had bed alarms available and that the nurses
had not put one in Arliss Alburgers bed.
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
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Linda Miller Atkinson
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If you look at the fall assessment in the
chart on page five and six you'll see that there is
nothing in there for an assessment of the medications.
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Linda Miller Atkinson
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instruct you that you are entitled to treat the absence of
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the care plan as evidence against the Defendant in
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determining the evidence when you find that there should
4 have been something there that isn't.
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Tenth, if a bed alarm had been in her bed on the
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17th and 18th the nurses would have known she was out of
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bed before she fell. Eleventh, bed alarms were
8 available at Defendant IGA. The nurses at Defendant IGA
9 had used bed alarms. John Carillo put one in there
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12 nurses nearby could have come to her aid before she fell.
13 That we can tell. And- thirteenth - as a patient with
14 osteoporosis she was at increased risk for falling. Dr.
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commitment to safety. Did they break that rule? Yes.
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
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price tag.
You may recall in opening statement I
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One of the hardest issues to analyze is those damages
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which the law allows as losses but which don't have a
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price tag because we have to try to figure out what
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their value is. Dollars dont heal pain, but they are
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the only remedy the law allows. Perhaps these give the
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family resources to honor Arlisss memory. Perhaps
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these damages translate a message about how serious
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patient safety is in this community.
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And that's why Candace was here - to give you insight
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lost because she died on April 20th, before her
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anticipated life expectancy had passed.
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What is that anticipated life expectancy? Did
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anybody tell you exactly? No. Can I tell you exactly?
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No. She was 93. She had all of the good social contact
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to make her life expectancy longer. The evidence is that
18 she had members of her immediate family who lived beyond
19 the age of a hundred. That's fairly relevant to whether
20 she would live further. Dr. Mondejar said she expected
21 her to go home and do fine.
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Putting that all together as members of the
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
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jury you can decide, was it more likely than not she was
going to live to a hundred? If she had heart, a heart
disease or if she had conditions that might bring her to
death sooner than a hundred was it more than three days?
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Linda Miller Atkinson
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year for about four years or it could be $1,000.00 a
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year for a hundred years. But I don't think she was
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going to live that long.
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be thinking you were getting better and to suddenly have
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multiple fractures and bruises that required morphine at
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Sparrow for those 63 hours. It might be reasonable to
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ask ourselves, well what are we willing to pay a dentist
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for half an hour to be free of the pain of the drill. Is
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that any kind of index?
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opening statement that given 63 hoursgiven the extent
of the injuries, that $63,000.00 was not unreasonable.
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But that's certainly up to you to decide based on your
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own experience.
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
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Thank you.
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Linda Miller Atkinson
and Persuasion
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The question isn't from a medical point of
view did Arliss Alburger have a better day on April
17,2002, than she had the day before. The question is
given the nurses' special knowledge and their duty to
the patients safety and welfare, didnt the changes in
her condition require a bed alarm to protect her from
falling.
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
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Linda Miller Atkinson
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and they don't interfere with your other patient care.
It was entirely reasonable to put one in Arliss
Alburgers bed.
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
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damages?
Discovery with a Purpose
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Linda Miller Atkinson
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The next question is:
The, the only claims are for past because the plaintiff
and the defense agreed this being 2009, Arliss having
been born in 1909, that she was probably not going to go
beyond a hundred. So all the damages are past and just
when those damages stopped is up to you.
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Linda Miller Atkinson
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negligent or had her oxygen saturation dropped so low
she was confused?
The problem is that if you think, if you buy
the defendant's story then you're letting the fact that
they didn't do their job to tell you about her
They don't know if she was too confused to find the call
button.
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
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Number seven depends on question number six.
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If you don't find she was negligent at all then you
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wouldn't find that any of her negligence was involved as
4 a cause.
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If you were inclined to think that failing to
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use a call button was actually negligent then the next
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question is was that a cause of her injury? If the
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standard of care for the nurses required a bed alarm, if
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that care plan said use a bed alarm and they didn't do
The Intersection of Psychology
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it, then the fact that she didn't use a call button is
Discovery with a Purpose
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irrelevant because had there been a bed alarm the call
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button would have been irrelevant. It has no causal
13 basis. So whether she did it or not it didn't cause her
14 any harm.
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Eight, if you were to find some negligence by Arliss and you
were to find it was a cause then start with 100 percent and
16 you consider the nature of each party's conduct and try to
separate how much was Arliss's responsibility, how much
17 was their responsibility, and, and allot percentages
totaling a hundred.
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button played some role in it so maybe it's 99 percent
to the nurses who were in charge, had the responsibility
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and didn't do it, and one percent for Arliss who got
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confused and didn't use the call button. Then the judge
in the instructions has advised you that he'll reduce
the total amount of damages as you find it by the one
percent or the percentage that you find her negligent.
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here advocating for the defendant. And we each have to
do our jobs adversarially to get to the truth.
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DEMONSTRATIONCLOSING ARGUMENT: PSYCHOLOGY AND PERSUASION IN THE HOSPITAL FALL CASE
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broke.
can now say we've turned the evidence over to you and we
will be waiting for your verdict.
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