After quite some time of back and forth with negotiations, offers, and counter-offers, your attorney and the defense team are unable to come to a consensus on your medical malpractice case and as a result, it goes to trial.
Like most of the population, you have never been an integral part of a malpractice trial and as a result do not really know what to expect. While it is true that no two malpractice trials will ever be alike, there are some aspects that most of them share and below are some of these similarities.
1. Aggressive defense
It is the defense team’s goal to have the medical malpractice case dismissed and keep their client or their insurance provider from paying any compensation. For this reason, they often use aggressive tactics when cross-examining experts, investigators, witnesses, and even you. During cross-examination, defense attorneys will often attempt to make parties say things that will incriminate the plaintiff, boost the defendant’s case instead, or can be used to their advantage.
While you cannot control how other people providing testimony will react to such strategies, if you are called to the stand, try to keep your composure and avoid responding harshly towards a defense attorney trying to get a reaction from you. If your case is strong you will be able to reiterate the facts of your case and they will speak for themselves.
2. Expert testimony
In medical malpractice cases, it is a certainty that your *- and that this could have resulted in a better outcome.
The defense attorney will then have a chance to cross-examine this expert and attempt to get them to doubt that malpractice occurred or that the defendant took action in good faith but it unfortunately resulted in a bad outcome. When the defense presents their case, they will call an expert that is usually a doctor to testify that the defendant’s actions should not be considered malpractice and will outline reasons why the case should be dismissed.
3. Plaintiff vs. defense
In every medical malpractice case, the plaintiff’s legal team will present an opening statement outlining the basics of your case and reiterate your position that malpractice was committed by the defendant. The defendant will have an opportunity to provide an opening statement as well, usually stating that your case is meritless, that the defendant acted in good faith, and their client should be found not guilty of malpractice.
In order for you to receive a ruling in your favour, your medical malpractice lawyer must prove that a doctor-patient relationship was established, the doctor failed to provide an acceptable standard of care, and this resulted in your injury. This is often done through medical records, expert testimony, and eyewitness accounts. The defendant will then have an opportunity to refute all claims by disputing medical records, calling their own experts and eyewitnesses, and cross-examining parties called to the stand by the plaintiff’s attorney.
After each side’s cases are presented, closing statements are presented and both will usually highlight the strengths of their respective arguments.
After closing arguments, the judge or jury will take some time to deliberate depending on the circumstances of the trial. During this deliberation period, the jury may request clarification from the judge or attorneys to better understand evidence or arguments and therefore be able to reach a decision. When a verdict is reached, both sides will return to the courtroom and the decision will be read.
If the verdict is in your favour, a monetary value of the settlement will be established for the defendant to pay but if an appeal is filed, no payments will be made to you until the appeal is resolved. If the verdict is in favour of the defendant, obviously you do not receive any compensation but you also have the right to appeal the decision.