A In any medical malpractice case, the person initiating the lawsuit, the plaintiff, has the burden of proving every element of the case by a preponderance of evidence. This means that he has to prove that his version of the facts and evidence is more likely so than not. The legal elements that must be proven are 1). That the defendant healthcare provider breached the standard of care (committed malpractice); 2). That the breach of the standard of care caused damages to the patient; and 3). The amount of damages caused by the breach of the standard of care. If the plaintiff fails to prove ANY of these elements, the judge will direct a verdict for the defense. Proving that the defendant healthcare provider breached the standard of care is no easy task. In Louisiana, this element must generally be proven with testimony from an expert physician who practices in the same specialty as the defendant healthcare provider.
Proving The Case Starts With Screening The Case
Any experienced medical malpractice attorney screens his cases for merit. This does not mean that the cases he refuses to handle necessarily lack merit. It just means that he does not feel confident that he can prove the case under the existing evidentiary and substantive laws which apply to the case at a trial on the merits. In order to screen the case, most attorneys start by hearing the "story" of the patient. What is the patient or family member claiming that the healthcare provider did wrong? Next, the patient obtains their medical records to determine what was actually recorded in the chart about the treatment. Does the chart demonstrate that the healthcare provider either failed to do something or did something wrong which caused harm to the patient? The next step is to have the medical chart reviewed by an expert physician who can determine if the bad outcome suffered by the patient is a result of substandard care by a healthcare provider.
Medical Experts Can Make or Break Your Case
Since Louisiana law requires a plaintiff to prove a medical malpractice case with expert physician testimony, choosing the right testifying expert for the case is a critical decision. Some of the best testifying physicians often are the physicians who treated the patient after the defendant physician. These are called subsequent treating physicians. In Louisiana, the judge will instruct the jury that the testimony of a treating physician is to be given greater weight by the jury than a physician who has never treated the patient. Thus, if there are subsequent treating physicians, their testimony can make or break the case. In the instance in which they testify that no malpractice was committed, it is very difficult to overcome this testimony. If there are no subsequent treating physicians who can or will testify, it is important to retain the most qualified expert available in that field of practice. The more renown that the expert is, the better.
Over-Coming Juror Bias Against Medical Malpractice Claims.
Last year, two thirds of all medical malpractice cases ended in a defense verdict, where the plaintiff lost. It is not enough to have an expert who is willing to testify that the defendant doctor committed malpractice which caused the patient injuries. The evidence must be overwhelming and compelling. Juries give doctors the benefit of any doubt. They do not like to rule against them. Many potential jurors claim during jury selection that they can be fair even though they know they can't or won't. Even the best lawyers cannot always expose this type of bias and keep these biased individuals off the jury. Often, the "venue" or location where the jurors are picked can have a significant impact on whether
Presenting The Evidence
Given the known bias that jurors have in favor of doctors, the evidence presented by the plaintiff must be clear, convincing and compelling. Presenting the evidence can also be challenging. Expert witnesses are busy. They often do not like to travel from out of state to testify at trial. They prefer that their testimony be taken by video taped deposition. This is NOT a good way to present their testimony at trial. However, sometimes it is unavoidable due to scheduling conflicts. The best testimony is taken live from the witness stand. The expert can they use charts and illustrate complex medical concepts to teach the jury the medicine and explain how the defendant doctor committed malpractice.
Instructing The Jury
At the close of the case, the judge will read what is called jury instructions to the jury. These instructions are the laws which the jury must apply to the evidence to determine the outcome of the case. Experienced medical malpractice lawyers know these instructions before they even take a case and can use this knowledge to determine whether the case is potentially provable at trial. One instruction that is given in these cases in some form or another goes something like this: "The fact that a patient has suffered a bad outcome from a medical procedure or treatment does not automatically mean that malpractice was committed. Bad outcomes can result from known and accepted complications which are not considered malpractice." These types of instructions can have a huge impact on a jury and must be considered from the outset of the case. There are many other instructions given by the judge, which usually takes at least an hour for him to read to the jury.
Factoring In The "Unknown"
As much as the best attorneys prepare a case, nothing ever goes exactly as planned during a trial. Sometimes this can be good for the case and sometimes it can be disastrous. Witnesses may not be available to testify in the order in which they need to be presented to be most effective. The judge could make a very unfavorable ruling about a piece of evidence which either side is trying to admit into evidence. A seemingly favorable juror may get sick and be dismissed from the jury. Witnesses may change their testimony from what they said before. The defense may present new theories that they never disclosed previously that our expert didn't address. A juror may have lied about not knowing one of the witnesses involved in the case. There are so many potential things that can go wrong with a well-prepared case that makes every trial nothing more than a gamble on the outcome.
A Tie Goes To The Defendant
If the jury believes that the explanation from each side is equally plausible, which results in them thinking that the evidence is a "tie", the defense wins. Again, the plaintiff has to prove his version and the negligence by a preponderance of the evidence---50.1% vs. 49.9%. He must tip the scale of the evidence in his favor to prevail. Even if he proves medical malpractice, he loses the case if he cannot also prove that the medical malpractice CAUSED his damages. At the close of the case, the jury is given a written form to fill out called Jury Interrogatories. This is a list of questions they answer about the case. The first question is usually "Did the plaintiff prove by a preponderance of the evidence that the defendant doctor breached the standard of care?' If they answer "No", the case is over and the defense wins. The same is true for questions relating to causation of damages.
If The Case Is Lost At Trial, Winning It On Appeal Is Very Rare
Unless a judge makes a grave mistake in allowing or disallowing certain evidence to be presented to a jury, a court of appeal gives great deference to the decision of a jury or judge. This means that proving that malpractice occurred to a court of appeal is even harder than proving it to a jury. In fact, the legal standard is much greater than a preponderance of evidence (more likely than not) standard that is made to a jury. A court of appeal will not overturn or dispute facts found by a jury unless they are manifestly erroneous or clearly wrong and no reasonable juror could have found that way. This is a near impossible burden to overcome. Thus, a plaintiff should not put any faith in winning a case in the court of appeal that was lost at trial.
Additional resources provided by the author
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