What to expect at a medical malpractice trial....
June 21, 2019 8:46 AM Subscribe
After years of legal wrangling a malpractice lawsuit related to the death of my father seems to be going to trial next week. Could anyone offer any suggestions for what we should expect to see, hear maybe even feel during the trial?
My father died about 6 years ago from cancer that started as a melanoma. About a year before he was finally diagnosed, he went to his primary care doctor about a mole on his leg that was scaly and tender. The doctor (an "osteopath" for what its worth) said it was probably athlete's foot and gave him an anti-fungal cream. Cream did nothing and the mole got bigger. My dad went back to the doctor who gave him a different cream. Only on third visit did it occur to the doctor to refer for a biopsy, and by then it was pretty much too late. So we decided that this merited some response and filed a lawsuit which is now going to trial. (BTW, if you think that there's a lot of money in malpractice, that's a pernicious medical industry myth. For example in California malpractice claims were capped at $250,000 in 1975, with 1/3 of that going to the lawyers.) Our lawyers are good enough, but have not spent a lot of time telling us whats going on or what to expect.
So I turn to you, as participants or lawyers (knowing of course that YANML) .. how does this usually go in your experience? Any suggestions for how to prepare - emotionally as much as legally?
My father died about 6 years ago from cancer that started as a melanoma. About a year before he was finally diagnosed, he went to his primary care doctor about a mole on his leg that was scaly and tender. The doctor (an "osteopath" for what its worth) said it was probably athlete's foot and gave him an anti-fungal cream. Cream did nothing and the mole got bigger. My dad went back to the doctor who gave him a different cream. Only on third visit did it occur to the doctor to refer for a biopsy, and by then it was pretty much too late. So we decided that this merited some response and filed a lawsuit which is now going to trial. (BTW, if you think that there's a lot of money in malpractice, that's a pernicious medical industry myth. For example in California malpractice claims were capped at $250,000 in 1975, with 1/3 of that going to the lawyers.) Our lawyers are good enough, but have not spent a lot of time telling us whats going on or what to expect.
So I turn to you, as participants or lawyers (knowing of course that YANML) .. how does this usually go in your experience? Any suggestions for how to prepare - emotionally as much as legally?
It's really not ok that your lawyers have not spent a good deal of time with you on exactly this.
You are, after all, the client. If they want to earn their five- or six-figure fee they should work with you and not just with the evidence.
Lots of professionals take their systemic knowledge for granted and forget that lay people have no idea even where to sit in court, let alone how to understand or process what they are seeing.
You appear to be in the USA so courts are open and for familiarity you could definitely go down for an afternoon and walk into any courtroom with a hearing going on just to get some exposure to the ebb and flow of trial procedure.
For your actual experience, you should probably expect things to proceed in a very measured and often even boring way. There are unlikely to be any incredible, gasp-inducing "gotchas" even with a very good cross-examination. There will be arguments about evidentiary issues that may seem confusing and overly technical. Your lawyers should be willing, after court each afternoon, to give you a sense of how they feel things went....did their witnesses perform as expected, did the judge/jury appear to be paying attention, did the other side score any points, etc. While there can be surprises upon receiving a verdict, it shouldn't come totally out of left field.
Good luck to you and I hope you get some closure and a sense of justice from the process, irrespective of the outcome (which of course I hope goes in your favour).
posted by Pomo at 3:23 PM on June 21, 2019 [3 favorites]
You are, after all, the client. If they want to earn their five- or six-figure fee they should work with you and not just with the evidence.
Lots of professionals take their systemic knowledge for granted and forget that lay people have no idea even where to sit in court, let alone how to understand or process what they are seeing.
You appear to be in the USA so courts are open and for familiarity you could definitely go down for an afternoon and walk into any courtroom with a hearing going on just to get some exposure to the ebb and flow of trial procedure.
For your actual experience, you should probably expect things to proceed in a very measured and often even boring way. There are unlikely to be any incredible, gasp-inducing "gotchas" even with a very good cross-examination. There will be arguments about evidentiary issues that may seem confusing and overly technical. Your lawyers should be willing, after court each afternoon, to give you a sense of how they feel things went....did their witnesses perform as expected, did the judge/jury appear to be paying attention, did the other side score any points, etc. While there can be surprises upon receiving a verdict, it shouldn't come totally out of left field.
Good luck to you and I hope you get some closure and a sense of justice from the process, irrespective of the outcome (which of course I hope goes in your favour).
posted by Pomo at 3:23 PM on June 21, 2019 [3 favorites]
Don't get too attached to the idea of The Trial -- the vast majority of these cases get settled by negotiation, often at the last minute, or even after the trial begins.
The trial itself will not be fun. Large chunks of it will be collossaly boring. Things that seem important to you may be glossed over or minimized. Parts of it may be hurtful -- in addition to rehashing lots of painful, angry-making things in dreadful detail, there may be times when arguments or questions from the opposing attorney seem to suggest that your father or your family were somehow at fault, or that your losses were not all that significant. It's your adversary's job to undermine your case in any way they can.
Don't feel betrayed if you see your attorney being civil, pleasant and even friendly with the opposing attorney. Some lawyers are sharks, some work on charm. I tend to think a good result is more likely if everyone treats each other decently. Even at its best, the process stirs up lots of sadness and anger.
I hope it goes well for you, and brings you some vindication and peace.
posted by Corvid at 4:12 PM on June 21, 2019 [2 favorites]
The trial itself will not be fun. Large chunks of it will be collossaly boring. Things that seem important to you may be glossed over or minimized. Parts of it may be hurtful -- in addition to rehashing lots of painful, angry-making things in dreadful detail, there may be times when arguments or questions from the opposing attorney seem to suggest that your father or your family were somehow at fault, or that your losses were not all that significant. It's your adversary's job to undermine your case in any way they can.
Don't feel betrayed if you see your attorney being civil, pleasant and even friendly with the opposing attorney. Some lawyers are sharks, some work on charm. I tend to think a good result is more likely if everyone treats each other decently. Even at its best, the process stirs up lots of sadness and anger.
I hope it goes well for you, and brings you some vindication and peace.
posted by Corvid at 4:12 PM on June 21, 2019 [2 favorites]
Based on a wee bit of experience in a civil case, you may be surprised at what passes as a standard of proof. I agree with Corvid about seeing small talk between lawyers.
posted by SemiSalt at 1:08 PM on June 22, 2019
posted by SemiSalt at 1:08 PM on June 22, 2019
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I was a juror on a "plastic surgery gone wrong" trial. The plaintiff had gone in to receive an eye lift and was encouraged/coerced into a chemical peel. They sent her home with instructions on how to care for her newly-treated face, but the instructions were incomplete. The plaintiff, who herself was a nurse, suffered a great deal of pain and was ignored by the practice when she called to see if what she was experiencing was normal. Oh, it was not normal. The poor woman was endured a lot of pain and was scarred for life.
The trial began with opening arguments. Lots and lots and LOTS of pictures. The plaintiff had taken pictures of herself every day - sometimes several times a day - to send to the doctors to ask "is this normal?". We also saw lots of pictures of other patients who had undergone the procedure: some good, some disturbing, all with the little black eye rectangles to maintain privacy. By the end of the first day, I was so done with looking at pictures of people suffering. But oh, there were always more.
Once they got through the opening arguments, witnesses came up to the stand to establish what happened, and when. When did plaintiff make their first call? To whom was the call made? Here is the email with the pictures the plaintiff sent, and the response. Are you the doctor to whom she sent the email? Is this your response? Etc etc etc etc. This part went on forever.
Then they brought in the expert witnesses. That took about a day. Basically they were there to back up what their clients were saying. The pictures came back so that the experts could now talk about them.
At this point, the trial had been going on for about a week. On the following Monday, we jurors showed up to find out that they had settled out of court over the weekend. and that we were not allowed to know what the settlement was other than the doctors were not claiming fault. I hope the plaintiff took them to the cleaners.
Anyway, to summarize: lots of pictures, lots of establishing who-did/said-what-when, lots of expert witness testimony.
posted by Gray Duck at 10:58 AM on June 21, 2019