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What is Trial like for Medical Malpractice Cases?

Legally Reviewed and Edited by: Terry Cochran

The majority of medical malpractice cases are settled before they go to trial, due to the time and expenses for both sides. It is in your best interest to engage a malpractice attorney as these cases can be enormously complex and expensive to litigate. Pre-trial investigations can take months or even years and can be very adversarial.

Trials can be emotionally draining and time consuming, and it is crucial you understand the processes to be able to handle the pressure and stress brought upon you and your family while going through this journey.

Medical malpractice cases: a look at the numbers

According to the average patient waits 16.5 months to file suit, and it takes on average 27.5 months to reach resolution. Settlements favored plaintiffs (61%) and jury trials only 21%. However, jury awards come in at nearly twice the amount of an average pre-court settlement ($799,000 vs. $485,000), but only about 7% of cases make it to jury trial.

A medical professional may want to fight a case in court even if his malpractice insurance carrier wants to settle, as they try to reduce settlement fees and the doctor tries to avoid being reported to the NPDB. They often have a ‘hammer clause’ stating if the doctor loses at trial, he has to pay the difference between the settlement amount and the jury award, thus such a large number of settlements.

Trial procedures

During pre-trial discovery you submitted documents, participated in depositions, and answered written questions, tried settlement, and eventually decided to go to jury trial if your settlement offered was less than satisfactory.

Medical malpractice trials take at least a week, mostly two to four weeks and could run for months in jury court, depending on the case complexity, the court schedule, and the number of witnesses.

Courts may require both parties to file a trial brief, summarizing their arguments and instructions for the jurors. Both parties have to disclose their expert witnesses and other witnesses before trial begins.

Your lawyers may file motions to limit the scope of the trial (Motions in Limine) or to exclude certain evidence.

On the first day, you will select jurors, with both sides trying to eliminate jurors who may be sympathetic to the opposing side. This process, voir dire, can be through written questions submitted to the judge or some will allow attorneys to ask questions directly.

Once a jury is selected (which may take days) opening statements are made by both lawyers, explaining to the jury why they should find in favor of either defendant or plaintiff.

Your attorney will then present your case in chief to establish the principles of medical malpractice cases – duty of care and the expected standard, breach, harm, and damages. He will call expert witnesses, present documentation and presentations and may call you as a witness. Both attorneys have the opportunity to question and cross-examine the witnesses.

Once your attorney ‘rests,’ the opposition will present their case and may ask that the case be dismissed. They will present their witnesses and exhibits.

Once both parties rest, closing arguments will be made by both, emphasizing the strengths of the case and the weaknesses of the opponent’s case.

The judge will instruct the jury, and they will retreat to deliberate. They may ask questions to clarify (in written form). Once a verdict is reached, they will deliberate on damages, which are dependent on state law. It may include economic, non-economic, and sometimes punitive damages. The judge will read out the verdict and damages – and the losing party may then appeal, which will delay payments until the appeal is heard and judged.

Issues to consider during trial

Opposing lawyers will ask questions in strange ways to try and trick you or your witnesses into saying something that may damage your case and will present evidence regarding your life and decisions that may not be related to the case but is used to test credibility. It may be a painful process for you and your family, with lots of public scrutinies, long days in court, and stressful discussions and planning sessions with the lawyers. It can take a toll on your family members, your job, your self-esteem. Make sure that you are ready for that and have support structures in place. The legal process can be a tough thing to witness and go through, so make sure you are mentally prepared.

Medical malpractice lawsuits follow a similar pattern to that of other court cases. Proceeding opening statements, your attorney will attempt to prove that the defendant is in violation of the medical standard of care and did not take the appropriate steps to prevent this violation.

Going to jury trial can be extremely stressful, get the right support, and make sure you are doing this for the right reasons. If you need assistance with a medical malpractice case in Michigan, call Eileen Kroll, a Registered Nurse and Personal Injury trial attorney, at Cochran, Kroll & Associates, P.C. at 866-MICH-LAW for a no obligation case evaluation. Our law firm will fight for your rights on your behalf so you can focus on your recovery.

Disclaimer : The information provided is general and not for legal advice. The blogs are not intended to provide legal counsel and no attorney-client relationship is created nor intended.

Nikole has a special interest in medical-legal issues and holds post-basic degrees in medical law and business. She has developed quality improvement and safety plans for many practices and facilities to prevent medical-legal issues and teaches several courses on data protection and privacy, legal, medical examinations and documentation, and professional ethics. She has been writing professionally on legal, business, ethics, patient advocacy, research and medico-legal issues in articles, white papers, business plans, and training courses for over thirty-five years.



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