The Trial Process in a Medical Malpractice Lawsuit
Medical malpractice trials are the culmination of an often arduous and adversarial lawsuit process. Once a case actually goes to trial, months or sometimes years of pre-trial investigation is brought to bear in an attempt to prove that a physician breached the medical standard of care and caused you to be injured. Read on to understand the process by which a medical malpractice trial proceeds.
While the entirety of a medical malpractice case prior to trial can be considered preparation for the trial itself, there are a few specific aspects of preparation that will not occur until a trial is set to begin.
Normally, the parties must disclose the expert medical witnesses that will be called to testify on their behalf. For medical malpractice defendants, these usually include expert physicians that will testify that the defendant breached the standard of care, as well as witnesses that will testify regarding how your injuries have affected your daily life. You will likely be called as a witness as well.
Many jurisdictions also require the parties to file a trial brief stating their arguments concisely for the judge. The parties will also likely be asked to file a set of potential jury instructions, which will be used at the conclusion of the trial to instruct the jury as to their obligations when reaching a verdict. There may also be Motions in Limine filed and heard to narrow (or limit) the scope of the trial.
Most Cases Will End in Negotiated Settlement
Remember that, even though your medical malpractice case has now entered the trial phase, settlement is still an option and could occur at any time.
It’s no secret that the vast majority of medical malpractice cases (and personal injury cases in general) end up getting resolved before a trial takes place, or at least before the trial is over. “Resolved” can mean anything from the case getting dismissed (whether by the plaintiff or by the court), to the plaintiff and defendant agreeing to settle the case for a certain sum of money. And remember that settlement can happen at any time — from before a lawsuit is even filed, to just before the case goes to the jury for deliberation.
So, what percentage of medical malpractice cases end up actually going to trial? There are no current and reliable numbers to turn to on a regular basis, but there are a few studies floating around, and according to a fairly recent report from the U.S. Bureau of Justice Statistics. about 93% of all medical malpractice cases are resolved before trial, meaning that only 7% of cases end in a jury verdict whether in favor of the plaintiff patient or the defendant health care provider.
Medical Malpractice Trial
A medical malpractice trial begins by selecting a jury out of a pool of potential jurors. The jury selection process, called voir dire. varies from courtroom to courtroom. Some judges allow attorneys to directly question potential jurors. Others judges do the questioning themselves often based upon written questions submitted by the parties.
Once the jury is selected, the parties move on to opening statements. At that time, your attorney will give the jury an overview of the case from your perspective, and tell the jury what they can expect to hear from various witnesses, all the while subtly advocating your position .
The defendant will then, through their attorney, offer their own opening statement, which will generally involve telling the jury why your case has no merit, and that the doctor did nothing wrong in the eyes of the law .
Upon the conclusion of opening statements, your attorney will present your case in chief. This involves calling expert medical witnesses and offering testimony and exhibits that are designed to establish:
- the appropriate medical standard of care that applied under the circumstances (what the doctor should have done)
- that the defendant doctor breached the medical standard of care (what the doctor did wrong), and
- how you suffered harm (damages) as a result (this will be detailed proof of everything from additional medical treatment and lost income to pain and suffering, loss of enjoyment, etc.).
Depending upon the complexity of the case and the number of witnesses involved, your attorney could take hours, days or even weeks presenting your case. Both your attorney and defense counsel will have an opportunity to question all the witnesses, including you if you testify. Once the totality of your case has been presented to the jury, your attorney will “rest,” and the defense will be given an opportunity to present their case or move for dismissal – ask that your lawsuit be “thrown out”. Your attorney will have an opportunity to cross-examine any witnesses called by the defense.
When both parties rest their cases, closing arguments commence. Similar to opening arguments, closing arguments are designed to emphasize the strengths of each party’s case, and often rehash the most favorable or most damning evidence presented during the trial.
When closing statements are finished, the judge will instruct the jury as to the appropriate facts and law they are to rely upon when reaching a verdict, and will send them off to deliberate.
Deliberation, Verdict and Appeal
In the deliberation process, the jury attempts to reach a decision regarding who wins the case.
Depending upon the jurisdiction in which your case is filed, you may need a particular majority of the jurors to agree with your case.
Juries may, during the deliberation process, ask questions (usually in written form) of the judge or lawyers in an attempt to sort through the evidence that was presented.
Once the jury reaches a decision, it will allocate damages (how much the plaintiff should receive ). Damages can be categorized as economic, non-economic or punitive. The amount and availability of a particular type of damages is dependent upon state law, and varies throughout the country. (Check the medical malpractice caps in your state .)
You will then be called back to court, and the judge will read the verdict.
Once the verdict is read, the losing party may have a right to appeal, or may ask the appropriate higher court for permission to appeal. If an appeal ensues, no damages will be paid out until the appeal is finally resolved and a final judgment is entered. Upon entry of a final judgment, you may begin to collect damages, if any were awarded.