Editor’s note: This is the fourth and final installment in a series discussing what healthcare professionals can expect in medical malpractice litigation. To see the preceding columns, click here.
Only a small fraction of healthcare liability lawsuits end up being full-blown medical malpractice trials, but it is critical to know the process in case you are ever faced with defending yourself in court. Most medical malpractice cases reach the trial stage only after months, and sometimes years, of legal maneuvering on both sides. There are depositions, the identification of experts, and mediation. Some cases are settled quickly; others are dismissed outright based on the court’s determination.
If no settlement is reached and no dismissal is issued, then a trial is the next step. While most medical malpractice trials will last from five to 10 business days, there are instances where cases can be decided in less than week. It is rare for a trial against a healthcare provider to last several weeks, but it does happen depending on the facts and the complexity of the allegations.
As a party to the lawsuit, you will need to attend every day of trial for many reasons, not the least of which is to show the jury and the judge that the case is important to you. The amount of time that you will spend in trial each day will vary depending on the judge, but it is safe to expect to be in court from 8:30 a.m. to 5:30 p.m. daily with an hour break for lunch and a couple of 15-minute rest breaks.
Choosing a jury
While foreign to most people, the process of a trial is fairly straightforward. Because the plaintiff has the burden to prove their case, their attorney is allowed to address the jury first throughout the trial. That starts with voir dire, a process where lawyers for each side question prospective jurors (typically a group of 40 to 60 people who are randomly numbered from lowest to highest).
Potential jurors are asked about their backgrounds and beliefs so the lawyers and the judge can determine if anyone has an obvious bias for or against one side or the other. Every judge handles the voir dire process differently, but selecting a jury usually takes a couple of hours and may include one-on-one questioning by the judge and the lawyers. If a potential juror is determined to be biased, then the judge may release them from jury service based on what is called a “strike for cause.”
Following voir dire, each side is allowed to eliminate six potential jurors using “preemptory strikes.” Parties to a lawsuit can strike jurors who were not struck for cause by the judge and who they believe show a potential for bias against their side. These strikes cannot be used for illegal reasons, which include eliminating a potential juror based on their race or gender. Once all the strikes are made by both sides, 12 jurors are selected among those left on the panel starting with the lowest-numbered juror and going up. Not all juries have 12 members. For example, cases in Texas county courts are decided by six-member juries.
Once jurors are selected, the judge swears them in and reads them the rules covering the trial and court decorum. If time allows before the end of the court’s day, this is the point where the plaintiff’s attorney will deliver their opening statement, which will be followed by your attorney providing your opening. The purpose (and limitation) of an opening statement is to give the jury a road map of the case evidence from each side’s perspective.
Your day in court
Once the judge has given directions to the jury, the plaintiff’s attorney presents their case by calling their first witness. Sometimes, the plaintiff’s attorney will call the plaintiff; other times you might be called to testify if you have been listed as a potential witness. Prior to taking the stand, you likely will need to spend one or two (or more) evenings with your attorney preparing to testify. Your homework leading up to trial will be to read (and reread) your deposition and any related medical records so that you know them backward and forward.
Other likely witnesses during the plaintiffs’ case will include their spouse or another family member, and possibly another healthcare professional. The plaintiff’s last witness often will be their expert witness, who will provide opinions about how they view the case facts. After each witness is called by the plaintiff, your attorney will be allowed to conduct a cross-examination to elicit testimony supporting your defense or pointing out inconsistencies in the witness’ testimony, if appropriate. If you are called as a witness during the plaintiff’s case, your attorney can question you then (called “direct-examination”) or they can call you back to the stand when presenting your case.
The plaintiff’s attorney will rest their case after calling all their witnesses. Then, it will be your lawyer’s turn to present your witnesses and evidence. In some circumstances, your attorney may move for what’s called a “directed verdict,” which is a motion claiming that plaintiff has failed to produce enough evidence to support a verdict in their favor. If the judge grants a directed verdict on all issues, then the trial is over and you win. If not, then you and your attorney will move forward with presenting your case.
Presenting your case
If you have not yet been called to testify or if your attorney chose not to question you when you were called to testify by the plaintiff, then you will likely be the first witness called during your case. The process will be somewhat similar to a deposition, but will typically involve reviewing and answering questions about exhibits, including medical records, X-rays, or anatomical diagrams. The plaintiff’s attorney will have the opportunity to cross-examine you if that has not already happened. In turn, your attorney can question you for “re-direct” testimony. This process can, and often does, go back and forth a couple of times before you leave the witness stand.
Once you have testified, your active involvement in the trial is essentially over but it is critical for the jury to see that you are still engaged in defending yourself. After your testimony, it is important to listen carefully to what the other witnesses have to say without showing any outward emotion that might be misinterpreted as trying to influence jurors. After each day concludes, share helpful insights with your attorney based on what you hear in court and how the jury is reacting. A good lawyer will appreciate your help.
Once you have testified, your attorney may call fact witnesses, including treating providers who support your theory of the case, and, of course, one or more expert witnesses. Once all of your witnesses have been called and all of your evidence has been presented, your attorney will rest your case. If there are co-defendants named, then their attorneys will present their witnesses and evidence and they will be allowed to cross- or direct-examine any of those who have testified. The plaintiff’s attorney, depending on the circumstances, may be allowed to present rebuttal evidence that contradicts your side of the case. After all parties have rested, and all evidence has been submitted to the court, the parties will state on the record that they have “closed.”
At this point, the parties and the judge will conduct a “charge conference” outside the presence of the jury to discuss the “jury charge,” which lists instructions on the law and the rules of deliberations and provides the jury with questions to answer. Those answers ultimately will result in a verdict favoring you or the plaintiff. Once the language of the jury charge has been determined, the judge will call back the jury and read them their instructions.
The plaintiff’s attorney will then be asked to deliver their preliminary closing argument. Then, your attorney will give the jury your closing argument. Because the plaintiff has the burden of proof, they start and finish the case, including the final closing argument. Jurors will then be dismissed to the jury room to deliberate and determine a verdict.
In the jury’s hands
Juries sometimes will send written questions to the judge. If appropriate, the judge will provide an answer. Otherwise, they will simply instruct jurors to seek the answer from the evidence presented. Juries are provided all trial exhibits to review and analyze during their deliberations. Occasionally, the judge may have the court reporter read back certain testimony that the jury would like to hear again, but that is usually limited to discrete excerpts.
Jury deliberations can last minutes or days, but usually are completed within a couple of hours. Once a verdict is reached, the jury will notify the judge and return to the courtroom. Typically, the judge will read the verdict on the jury’s behalf. Unlike a criminal case that ends with a “guilty” or “not guilty” verdict, in a civil lawsuit, the first question is read and answered. This question generally asks, “Did the negligence of the defendant proximately cause the injury in question?” If the answer is “no,” then you win! If the answer is “yes,” then the jury answers additional questions regarding damages.
Following the verdict, a judgment is entered by the judge. The losing party then has 30 days from the date of judgment to file an appeal, if desired. But that is a story for another blog entry.
Kimberly K. Bocell is a former registered nurse whose law practice is focused on assisting healthcare providers in all facets of health law, including defending providers in medical practice litigation and representation before in front of their respective professional boards. She also assists clients, as well as assisting with practice issues, business disputes, HIPAA compliance and a host of other health law areas.