42 Trial Lawyer • Fall 2023 Stephen Voorhees By Stephen Voorhees OTLA Guardian On November 3, 2007, Jack Sloan went to the bathroom at 3 a.m., had an episode of syncope (dizziness) and passed out. Sloan was 85-years-old and lived alone. He took a cab to the emergency department around 1 p.m. complaining of right flank pain. Chest x-rays were ordered, but the radiologist did not see evidence of rib fractures. Sloan was admitted to the hospital with a diagnosis of atrial fibrillation and anemia. Doctors focused almost entirely on treating the cause of Sloan’s fall (atrial fibrillation/syncope) and seemingly ignored the effects (internal bleeding from rib fractures). Sloan’s bloodwork showed a five-point drop in hematocrit (HCT) over the course of his first 1.5 days in the hospital, indicating that Sloan had lost approximately one liter of blood somewhere in his body. The doctors incorrectly concluded the HCT drop was due to minor gastrointestinal bleeding and ruled out the possibility — based solely on the normal chest x-rays — that Sloan had internal bleeding from rib fractures. Complicating matters were Sloan’s history of chronic anemia, moderate complaints of pain and near normal respiratory rates during his hospitalization. In our view, Sloan’s clinical picture did not correlate with the normal chest x-rays and, in fact, pointed to internal bleeding from rib fractures. The hospital doctors did not conduct a thorough differential diagnosis that would have revealed this potentially fatal cause of Sloan’s HCT drop. A CT scan of the chest/abdomen or a rib series would have revealed evidence of internal bleeding or rib fractures. Draining the blood (thoracentesis) and keeping Sloan in the hospital for observation would likely have saved his life. Instead, the hospitalists discharged Sloan to a skilled nursing facility with a diagnosis of a-fib and anemia. Sloan died 12 days later of respiratory distress from right hemothorax. Essentially, Sloan’s right lung collapsed due to an accumulation of 2.5 liters of blood in his chest cavity. OTLA member Bill Savage filed suit on behalf of the Sloan estate for wrongful death. Savage tried the case in 2012. Sloan v. Providence Health System-Oregon, et.al., 395 P.3d 874, 361 Or. 524 (Or. 2017). The case went up on appeal to the Oregon Supreme Court and back for this second trial. Savage contacted me a few weeks before trial and asked if I wanted to co-counsel. Our trial was seven days. I handled jury selection, cross examination of the only defense expert, direct exam of our lay witnesses and closing argument. Savage handled opening statement, direct exam of our experts and rebuttal. This dynamic worked well. Balancing the trial work between us kept the jurors’ attention and allowed us to stay sharp. Wrongful death The jury returned a unanimous verdict for the prayer in under an hour. The prayer was $500,000 for the wrongful death of Sloan. We had a handful of retained and non-retained experts, and read some of the previous trial testimony. The defense relied almost entirely on previous trial testimony and live testimony of Dr. Richard Gicking, an internal medicine specialist at OHSU. The focus of the cross-examination was the hospitalists’ failure to conduct a Jack Sloan Differential diagnosis Rule out the danger
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