Frankly, you should hope that you never get a firsthand chance to find out the answer to this question. A medical malpractice trial is a high stakes gamble in which hundreds of thousands of dollars are at risk and your fate is in the hands of eight strangers, who are probably quite skeptical about your claim.
A medical malpractice trial is the culmination of a process that has been going on for one to two years already. Your lawyer has investigated your claim and concluded it is meritorious. He or she has filed a complaint and the parties have conducted discovery. In the discovery process, you have had your deposition taken under oath as have all of the significant witnesses who will testify at trial, including all of the expert witnesses. You have been through a mediation process, which failed to reach a settlement. With no settlement, the parties must go to trial. Your trial will probably take two or three weeks to complete.
By the time you arrive at the courthouse for the first day of trial, your lawyer has spent the last two or three weeks preparing for it. He or she has decided on the theme of the trial, has scheduled witnesses in the most compelling possible order, has prepared the witnesses for their testimony, has selected and marked exhibits, has submitted proposed jury instructions, and has prepared questions for the prospective jurors. The lawyers may have argued motions concerning evidence one party claims is inadmissible. Much, much work must be done to prepare for a medical malpractice trial.
The first event on the morning of trial is the selection of the jury. This process is called voir dire, from the old French for “speak the truth.” The judge has ordered 40 or so prospective jurors to be sent up from the Jury Commissioner’s office. These people were selected randomly but those who show up are not a completely random example of the citizens of the county. Some people are automatically excluded from jury service. Some people have critical jobs, such as the mother of small children, and cannot spend two or three weeks in court. These people will all have been excused before trial. Some people called to jury service just ignore the summons. Maybe they don’t care. Maybe they cannot afford to take time off from their job. These people are usually on the lower end of the socioeconomic scale and may be more likely to find for the patient in a malpractice trial. The people who almost always show up are retirees, people with responsible jobs, executives – in short, people who are likely to be more sympathetic to the doctor defendant.
The judge will ask the panelists questions to try and determine if any of them cannot be fair and impartial for any reason. Then the lawyers get to ask questions. At the conclusion of the questioning, the panelists leave the room and the lawyers and the judge discuss which panelists should be excused because they cannot be fair and impartial. When that discussion has been completed and the judge has ruled on any motions to disqualify a panelist, the panelists are called back into the room and the first eight who were not disqualified, plus any alternates, are sworn in as jurors. The rest are sent back to the Jury Commissioner.
The judge will now read preliminary jury instructions so the jurors know their role and what they should and should not do in hearing the case.
Now it is time for the lawyers to give opening statements to the jury. Opening statements tell the jury what the case is about and what witnesses and exhibits the lawyer plans to introduce.
After opening statements are complete, your lawyer will begin to put on your case. He or she will call witnesses and introduce exhibits. Your lawyer may call the defendant doctor to testify as part of your case. Your lawyer will call expert witnesses to testify that the defendant breached the standard of care and that you were injured as a result. At some point in your case, you will be called to testify by your lawyer. The defense counsel gets to cross-examine your witnesses and introduce exhibits as well. When your lawyer has finished presenting your case, he or she will rest.
Now it is time for the defense lawyer to put on the defense case. The defense lawyer will call experts to bless the conduct of the defendant doctor and to cast doubt on as much of your case as possible. When the defense lawyer has completed his or her case, the defense will also rest.
If appropriate, at this time your lawyer may present rebuttal evidence. When that is complete, the evidentiary phase of the trial is over.
At this point, the parties may make motions to the court on various points of law and ask the judge to find partially or completely in their favor. If the judge does not find completely in the favor of one of the parties at this point, the trial will continue.
Throughout the trial, there will be objections to testimony and to exhibits. The judge will have to rule on these objections. There are Rules of Evidence which control the trial and what the jury can and cannot hear so the jury may not get to hear all of the facts you believe prove that you should win.
In Arizona, the jurors have an active role to play. They are given notebooks to help them remember the evidence. They are permitted to submit questions to the judge for the witnesses to answer. Assuming the question is an appropriate one not forbidden by the Rules of Evidence, the judge will ask the question of the witness.
When all the evidence is in, the parties will discuss with the judge what instructions of law should be given to the jury to help them decide the case. The judge is the decider of the law while the jury is the decider of the facts.
The parties and the judge will also decide on forms of verdict to be given to the jury to fill out after they have decided the case. One form is simple. It says the jury finds for the defendant. The other is more complicated. It says the jury finds for you and assesses your total damages as $_____. Below that the jury assesses fault percentages, if there is more than one defendant or if the defendant claims that you are at least partially responsible for your own injury. If the jury finds in your favor, the judge will multiply each defendant’s share of fault by the total damages and enter judgment in your favor for that amount against that defendant.
While you might think so, you are not done yet. The prevailing party must submit a judgment to the judge for signature. The prevailing party must also submit a cost statement asking for reimbursement of certain costs and fees. A cost judgment for those fees and costs which are allowable will be entered in favor of the winning party and against the loser.
The trial may spawn post-trial motions. The losing party may ask for a new trial and argue that various errors in admitting evidence or errors of law occurred which made the trial unfair. If you were the winner, the defendant doctor may ask the judge to reduce the award in your favor. Your lawyer, on the other hand, may ask the judge to increase the award in your favor.
After the judge has ruled on all of the post-trial motions, either or both parties may appeal the judgment and the court’s post-trial rulings. If the Court of Appeals or the Supreme Court decides to order a new trial, you go back to square zero and start all over, if your nerves can stand it.
The post What Happens In A Medical Malpractice Trial? appeared first on Sandweg & Ager PC.