During the closing arguments in a $10 million malpractice trial, attorney Robert McKenna III told jurors the claims against his client, a gastroenterologist, were baseless and equivalent to “extortion.” The patient’s family blamed the gastroenterologist for their father’s death, alleging the doctor perforated his colon during insertion of a feeding tube.
“I take pride in what I do, and I’ve got to tell you, in the 30 years I have been doing this, I have never seen a more insulting, factually devoid presentation in my entire career,” McKenna said, according to court transcripts. “On the strength of this evidence, they want you to award them $10 million. Welcome to America. Welcome to the personal injury machine, the personal injury industrial complex.”
After less than 30 minutes of deliberation, jurors returned a 12-0 verdict in favor of the physician.
However, McKenna, from Huntington Beach, California, described the case very differently to his staff in a celebration video, which he never expected to become public.
In the video, posted on Twitter and Instagram, McKenna brags about how his legal team convinced jurors to doubt the patient’s official cause of death. He says the lawsuit involved a guy “that was probably negligently killed, but we kind of made it look like other people did it.”
“We actually had a death certificate that said he died the very way the plaintiff said he died, and we had to say, ‘No, you really shouldn’t believe what that death certificate says, or the coroner from the Orange County coroner’s office … who says that it’s right,’” McKenna says in the video.
The 26-minute verdict was the fastest he’s ever received, McKenna says in the video, encouraging his partner to ring the firm’s victory bell.
“Overcoming all of those hurdles, we managed to sock three lawyers in the face,” McKenna says, referring to the plaintiffs’ lawyers.
The video of McKenna’s remarks is now in wide circulation after having been posted to online attorney forums, Instagram, where it’s been viewed more than 8,000 times, and Twitter, where views have reached over 3,000.
Jorge Ledezma, an Orange County, California, attorney who represented the patient’s family in the case, said the remarks make it appear as if McKenna tricked the jury.
“It was a drastic change from the comments he made to the jury during his closing arguments,” Ledezma said. “But the video is more important for what he doesn’t say. He doesn’t say his client did everything properly. He doesn’t say our case didn’t have any merit. He doesn’t say his client was a good doctor. Clearly, what he told the jury and what he believes are the exact opposite of each other.”
McKenna did not return multiple messages seeking comment for this story. In a statement to the LA Times, McKenna said his remarks were “intended purely as an internal briefing to our staff, using shorthand phrases which might understandably cause confusion for a lay audience unfamiliar with the case at hand, and the law in general.”
“I have expressed my apologies to my client, opposing counsel, and both the medical and legal communities,” McKenna said in the statement to the LA Times. “However, nothing about my remarks should call into question our very transparent trial strategy or the jury’s verdict in favor of my client.”
What Happened to the Patient?
Enrique Garcia Sanchez, 49, arrived at the critical care unit at South Coast Global Medical Center in Santa Ana, California, on Nov. 5, 2017, complaining of abdominal pain. He was diagnosed with acute pancreatitis, acute hypokalemia, and alcohol abuse, and transferred to the intensive care unit, according to the family’s legal complaint.
Sanchez had a positive D-Dimer test, indicating a probable blood clot, and he appeared to be experiencing septic shock due to pancreatitis, according to the complaint. By Nov. 17, Sanchez was suffering from respiratory failure and severe hypoxemia, and as a result, he was sedated. In addition, his abdomen was described as distended with decreased bowel sounds, according to court documents.
On. Nov. 18, a gastrointestinal specialist was consulted due to Sanchez’s prolonged intubation and oropharyngeal dysphagia, according to the lawsuit. On Nov. 21, air was leaking from Sanchez’s breathing tube with diffuse infiltration noted on the right side, and pneumonia.
Sanchez was eventually unable to swallow, and the gastroenterologist inserted a percutaneous endoscopic gastrostomy (PEG) tube, according to court records.
Sanchez’s condition worsened, and he developed respiratory distress, hypotension, and weakness during dialysis. On Dec. 9, 2017, physicians noted he had a bacterial infection, and he was later intubated on vent support because of progressive respiratory failure. Additionally, an internist reported that “fecal material” was observed per the PEG tube. Sanchez’s white blood cell count continued to rise, and his condition deteriorated. Sanchez died on Dec. 31, 2017.
A death certificate concluded that Sanchez died from complications of a PEG tube that perforated his colon, according to Ledezma. The plaintiffs’ legal team argued the gastroenterologist breached the standard of care by failing to ensure the tube was placed properly and failing to remedy the error after leakage was noted.
“Mr. Garcia died because of a misplaced PEG tube that perforated the colon, resulting in peritonitis and sepsis,” attorney Jose Robles said during his closing arguments. “Mr. Garcia had ascites, a contraindication for PEG tube placement. He had ileus, a contraindication for PEG tube placement. The standard of care requires that [the gastroenterologist] conduct a proper workup to confirm that a PEG tube placement can be done appropriately and safely.”
McKenna argued the gastroenterologist was not at fault for the patient’s death, and that complications from his pancreatitis ultimately killed him. During the trial, physicians who cared for Sanchez testified the patient had a less than 50% chance of survival.
“What he had was end-stage catastrophic [pancreatitis] that was affecting his organ system and aspiration pneumonia that made it impossible for him to try to breath on his own,” McKenna said during closing arguments. “The man … had a catastrophic injury that ate most of his pancreas. That is not a survivable event.”
Attorney Faces Backlash From Legal Community
Since his celebratory remarks were posted online, McKenna has faced much backlash, particularly from the legal community.
@mgvolada tweeted, “As an attorney I am revolted and I hope sanctions follow … this is why people hate attorneys.”
@stevewieland, who identified himself as a trial lawyer, wrote he would not feel good about winning such a case.
“No wonder we get no love from the public,” he tweeted.
“Let’s see how the Court of Appeals thinks about your braggadocio and how this makes lawyers appear to the public,” tweeted @Stephen60134955, a self-identified attorney.
McKenna’s license remains active and in good standing with no disciplinary actions, according to the State Bar of California website.
Ledezma has filed a motion for a new trial, and a hearing on the motion is scheduled for Aug. 4, 2022. The motion was filed primarily because of issues during the trial, what Ledezma described as “inflammatory closing arguments,” and in small part, McKenna’s video remarks, he said.
If the motion is denied, the plaintiffs will move forward with an appeal, he said.
For more news, follow Medscape on Facebook, Twitter, Instagram, and YouTube.