Although most medical malpractice lawsuits in the United States resolve by dismissal or settlement, roughly 10% go to trial. For me, the idea of being on trial was frightening and the process stressful. That seems to be true for most physician-defendants. As in every life situation, though, having more information can help to reduce the fear factor. So today, let’s kick off a series of posts related to going to trial. We’ll start by outlining the process of a medical malpractice trial. 

1) Jury Selection

The first step in a courtroom trial in the United States is that of jury selection, also known as “voir-dire.” Before the trial can move forward, the judge and attorneys for both plaintiff and defense will want to ensure they have a fair jury which will be available throughout the expected duration of the trial.

At voir-dire, potential jurors will answer questions, some of which may come from the judge, others from lawyers for either side. The judge has the power to excuse potential jurors as they deem appropriate, while your lawyer or the plaintiff’s has the right to disqualify a certain number of members of the jury pool based on their answers to questions or other factors which the lawyer deems potentially unfavorable to their client. As an example, the judge may disqualify a potential juror who is the sole caregiver to an older adult with dementia. And plaintiff’s lawyers would likely disqualify any potential juror who is a physician.

Medical malpractice cases are often complex. That being so, lawyers on both sides will likely seek an intelligent, attentive jury who they believe will not be biased against their client. The process of “voir-dire” may last a full day or more.

2) Opening Statements

Once jury selection is complete, the trial proceeds to opening statements.

The plaintiff’s counsel goes first by providing an overview of the case from the perspective most advantageous to their client. They will often highlight what they believe the jury “will hear” from their expert witnesses and engage in efforts to begin to arouse the jury’s sympathy for the plaintiff.

The defense counsel will then give their opening statement. This may include discussion of how the law defines malpractice and outline the objective medical facts, discuss the medical issues, and define terms.

Additionally, defense counsel will remind the jury that a complication or adverse outcome does not mean that the physician failed to meet the standard of care. Finally, there will be discussion of how the defense experts will testify and that the medical care was reasonable and met the standard of care.

3) Plaintiff Presents Their Case

It’s now time for each side to present their case. The plaintiff will go first. Their primary aim will likely be to demonstrate that your actions failed to meet the standard of care. (For more on how the law defines “standard of care,” click here.)

You can expect to hear testimony from the patient or their loved ones as well as expert witnesses -- generally physicians unassociated with the patient’s care who have agreed to testify in favor of the plaintiff. One or more defendants or other members of the healthcare team may also be asked to testify at this point.

Each plaintiff’s expert witness will undergo what is called “direct examination” in which the plaintiff’s attorney will seek to elicit the facts and opinions favorable to their client’s case. This is followed by “cross-examination” -- in which defense counsel seeks to elicit facts which may have yet gone unmentioned but which are favorable to the defendant -- as well as to grill the plaintiff’s experts, exposing any weaknesses in their claims and pointing out inconsistencies between testimony they gave at deposition and testimony offered at trial. The plaintiff’s attorney will then have the opportunity to follow up with “redirect” questions, intended to clarify or drive home a salient point or two.

As a defendant, you should know that this stage of the trial may feel absolutely terrible to you. By this point, the plaintiff’s counsel will have done everything they can to highlight the sad events affecting the plaintiff and make you, the defendant, look bad. You, on the other hand, have not yet had any real opportunity to share your side of things.

4) Motions for Dismissal

Motions to dismiss a particular defendant or the case outright may be filed by defense counsel at any point along the way, especially early in the trial and including after the plaintiff has presented their case. Such motions typically arise as a result of poor expert testimony in which the plaintiff has not met their burden of proof or because the expert does not meet the minimum requirements to testify.

5) Defense Presents Their Case

At this juncture, the spotlight shifts to the defense. Defense counsel will now elicit “direct” testimony from you, other defendants, and possibly other healthcare workers involved, as well as from expert witnesses who have agreed to testify in your defense, potentially regarding multiple aspects of the medical case.

It is only now that you will have your first opportunity to tell the jury your side of the story guided by the supportive questions of your own attorney. It is likely that the plaintiff’s counsel will engage in “cross-examination” of each defense witness, you included, and then your attorney will have the opportunity to “redirect” by asking you questions intended to clarify any confusion raised in the midst of cross-examination.

6) Closing Statements

Once both sides have presented their view, it’s time for closing statements. Once again, the plaintiff’s attorney goes first, arguing their case and themes, reminding the jury of the testimony they’ve heard from the plaintiff themselves as well as experts and others, always attempting to demonstrate a failure to meet the standard of care.

The defense will follow, reminding the jury of the flaws in the plaintiff’s logic; the plaintiff’s failure to meet their burden of proof; and the testimony of defense experts, often arguing that you did in fact meet the standard of care.

Last, the plaintiff’s have an opportunity for a brief rebuttal, where they typically will again address their claim for extensive monetary damages.

7) Jury Instructions

Arguments having closed, the judge will prepare the jury to contemplate all they’ve heard by giving them instructions. These instructions often remind jurors of their duty to be impartial, that they are only to consider testimony rendered under oath (and not statements of the attorneys) in their deliberations, as well as other particulars the judge considers relevant.

8) Deliberation and Verdict

At this juncture, the jury will sequester themselves to deliberate with the aim of producing a fair verdict. They will seek to reach consensus on questions such as whether they think the evidence demonstrates that you failed to meet the standard of care, and IF they think you breached the standard of care, whether the evidence demonstrates that there was a causal link to the patient’s injury.

While this outline may make it sound like the process moves forward without delay, the truth is that there will be stops and starts along the path of a medical malpractice trial. Lawyers will intermittently raise objections, to which the judge will respond, sometimes by calling all counsel to the bench to discuss things. Occasionally, other unrelated legal matters may even need to come briefly before the court, prolonging the lunch break.

Settlement or other negotiated agreements can occur at any point along the way, including in the midst of jury deliberation. Lawyers for both sides will be doing their best to “read” the jury and the tone of the trial, each seeking the best possible outcome for their client.

In future posts, we’ll talk more about your role as a defendant in a medical malpractice trial, as well as that of expert witnesses and ways to manage the stress. If you don’t already, subscribe to the blog for further details on the process of a medical malpractice trial.