A trial has been described as a search for the truth. Plaintiff, the party that is suing for malpractice damages, presents his or her facts and arguments to a Jury. Defendant, the health care provider being sued, then presents his or her own facts and arguments to the Jury. The jurors then decide whether Defendant met or departed from the applicable standard of good and accepted medical practice, and whether any departure caused or contributed to Plaintiff’s claimed injuries.

Jury Selection

Before a trial can begin, Jurors must be selected. Jury selection is a critical part of preparing for the trial: “A big part of the battle is the selection of the Jury, and an impartial jury is the corner-stone of the fairness of trial by jury.”¹

Jurors are selected either by the attorneys for the parties or by the Judge with input from the attorneys. The attorneys and the Judge ask questions of prospective jurors to identify jurors who will be fair and impartial, and who will follow the law that is instructed by the Judge.

Defense counsel seeks to empanel jurors who will keep an open mind. Individuals who agree that a physician can do everything right and still get a bad result, and individuals who are willing to send Plaintiff home with no money if they find that something other than negligence caused Plaintiff’s injury are types of jurors that Defendant would like to sit on the Jury panel. Potential jurors who believe that malpractice must have occurred whenever a patient suffers an injury, or who themselves have had bad or unsatisfactory experiences with physicians, are to be avoided.

Opening Statements

Once the Jury is selected, the trial formally begins. After the Judge welcomes and instructs the Jury on how the trial will proceed, Plaintiff’s counsel and Defendant’s counsel give Opening Statements to the Jury.

The Opening Statement is the attorneys’ way of introducing their clients and themselves, and “previewing” for the Jury what the evidence will show. “The opening statement of counsel is ordinarily intended to do no more than to inform the jury in a general way of the nature of the action and defense so that they may better be prepared to understand the evidence”²

Plaintiff’s Case

Plaintiff bears the burden of proof at trial of proving medical malpractice. Accordingly, Plaintiff presents his or her case before Defendant presents any defense.

Plaintiff must prove that Defendant departed from the relevant standard of good and accepted medical practice. Plaintiff also must show that a departure caused Plaintiff’s injuries.

Expert medical testimony is required at a trial of a medical malpractice lawsuit. If Plaintiff does not introduce expert medical testimony at trial, then the Judge can dismiss Plaintiff’s case before Defendant has presented his or her case (a “Directed Verdict”).

Defendant will be called by Plaintiff’s counsel to establish the basic facts surrounding the medical care. Beware: a crafty Plaintiff’s counsel may try to get Defendant to admit to a departure!

Plaintiff will testify on Plaintiff’s case. The topics will include interactions between Plaintiff and Defendant regarding the medical care, as well as Plaintiff’s pain and suffering, lost earnings, and medical expenses that Plaintiff attributes to the claimed malpractice.

Plaintiff may also call an expert to address damages. An economist or a life-care planner may advise the Jury as to the amount of economic damages Plaintiff is expected to sustain over his or her lifetime.

Defendant’s Case

After Plaintiff concludes presenting his or her case, Plaintiff is said to “rest.” Defendant then presents his or her defense.

Defense counsel will call Defendant to the witness stand to describe and explain the medical care. This is Defendant’s chance to educate the Jury about the decisions and clinical judgments made by Defendant in his or her diligent effort to diagnose and treat the patient.

Defense counsel will call a medical expert to rebut each and every departure to which Plaintiff’s expert testified.

Summations

After each party has concluded presenting his or her case, the attorneys will present to the Jury closing arguments, or summations. The attorneys present closing remarks in an inverse order from the order in which they presented their opening statements.

Plaintiff’s counsel will urge the Jury to find that Defendant has departed and caused the claimed damages. Counsel will also ask for an award of damages. Usually, Plaintiff’s counsel asks for a particular sum of money.

Defense counsel will marshal the testimony and evidence favoring Defendant. Counsel will argue that Defendant at all times met the standard of care and is not responsible for causing Plaintiff’s claimed injuries. Defense counsel will ask the Jury to return a defense verdict.

The zealous attorney has wide scope to argue his or her case: “In his addresses to the jury, it is his privilege to descant upon the facts proved or admitted in the pleadings; to arraign the conduct of parties; impugn, excuse, justify or condemn motives, so far as they are developed in evidence; assail the credibility of witnesses, when it is impeached by direct evidence, or by the inconsistency or incoherence of their testimony, their manner of testifying, their appearance on the stand, or by circumstances. His illustrations may be as various as the resources of his genius; his argumentation as full and profound as his learning can make it; and he may, if he will, give play to his wit, or wings to his imagination.”³

The Verdict

Following summations, the Judge will instruct the Jury on the applicable law. The Jury will then retire to deliberate.

Once the Jury has reached its decision, the Jury will return to the courtroom and announce its verdict—hopefully, a verdict for the defense! The losing party is entitled to appeal from the verdict if the losing party feels that the verdict is not supported by the proof or if an evidentiary mistake was made at trial.