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The Prosecution of a Malpractice Case: Trial Pointers

By: Jeffrey A. Mitchell

A.    Burden of Proof

La. R.S. 9:2794 specifically sets forth the burden of proof in a malpractice case.

 It provides:

The plaintiff shall have the burden of proving:

(1)    The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.

(2)    That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.

(3)    That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

* * * * * * *
C.    In medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving, by a preponderance of the evidence, the negligence of the physician, dentist, optometrist, or chiropractic physician.  The jury shall be further instructed that injury alone does not raise a presumption of the physician’s, dentist’s optometrist’s or chiropractic physician’s negligence.  The provisions of this Section shall not apply to situations where the doctrine of res ipsa loquitur is found by the court to be applicable.

    In a medical malpractice action, opinions of expert witnesses who are members of the medical profession and who are qualified to testify on the subject are necessary to determine whether or not physicians possessed the requisite degree of knowledge or skill, or failed to exercise reasonable care and diligence.  Frasier v. Department of Health and Human Resources, 500 So.2d 858 ( La. App. 1st Cir. 1986); Steinbach v. Barfield, 428 So.2d 915 (La. App. 1st Cir. 1983).
B.    Proximate Cause
La. R.S. 9:2794 noted above also sets forth that, like most other civil cases,  the plaintiff has the burden of proving the proximate cause of his injuries.  The difference between a medical malpractice case and other civil cases on the issue of proximate cause arises when the underlying healthcare provider pays $100,000 to settle the case and thereby admits fault.  If fault is admitted by this payment, what, if any, damages must a plaintiff prove were proximately caused by the admitted negligence?
This issue has been the subject of much litigation and debate.  The law has changed on this issue several times.  The current pronouncement on this issue is stated in   Graham v. Willis-Knighton Medical Center, 97-0188, (La. 9/9/97), 699 So.2d 365, 372, where the supreme court explained:
[T]he legislative intent of “liability” in Section 1299.44 C(5) was that the payment of $100,000 in settlement establishes proof of liability for the malpractice and for damages of at least $100,000 resulting from the malpractice, which is a very significant benefit to the medical malpractice victim.  However, at the trial against the Fund, the plaintiff has the burden of proving that the admitted malpractice caused damages in excess of $100,000.

Thus, the payment of $100,000 only admits fault which proximately caused damages of at least $100,000.  Plaintiff, at trial, still must prove by a preponderance of the evidence that he sustained damages by the admitted malpractice in an amount above $100,000 in order to recover additional sums.
    When fault is admitted through the payment of $100,000 by the underlying healthcare provider and general damages clearly exceed the statutory cap of $500,000, and now, when there is no issue of third party fault, summary judgment may be an appropriate mechanism to force a quick resolution to the case.  Courts have granted summary judgments in the past on this issue.  See e.g. Bramlet v. The Louisiana Patient’s Compensation Fund, 1998-1728 (La. 11/6/98), 722 So.2d 984; In re Medical Review Panel Proceedings Reidling v. Smith, 2002-0778 (La. App. 4th Cir. 9/18/02), 828 So.2d 656.
C.    Organizing the Case
    Organizing the case is critical to a smooth and efficient presentation at trial.  There is nothing more distracting and noticeable to a jury than an unorganized attorney.  The medical and legal issues are challenging even when one is well prepared and organized.  In this writer’s viewpoint, the beginning point in organizing a medical malpractice case is creating a chronology or timeline of events.  Understanding the factual sequence of events surrounding the medical care will help your communication and connection with the jury.  Moreover, every other aspect of the case builds from the base set of facts, including the testimony and presentation of evidence at trial. 
In support of creating a chronology, there is inexpensive software available to assist in organizing the entire case, or specific parts of it.  CaseMap and TimeMap are two such products.  CaseMap will create a chronology linked to all issues and witnesses in the case.  TimeMap makes timelines which are great as demonstrative aids with the jury.  Other software companies make similar products, but those are two that this author uses.  A well organized chronology also forms the basis of the opening statement.  It not only identifies the chronological sequence of events, but establishes which witnesses will prove those events and the standard of care associated with those particular facts.
D.    Order of Evidence/Witnesses/Proof
The order of evidence, witnesses and proof is usually presented in chronological fashion so as not to confuse the jury.  If the facts or issues of a particular case dictate that an order other than the chronological sequence of events is necessary, that presentation should be simple and easy to understand.  Thought should also be given as to how to reestablish the chronological sequence of events after presenting evidence out of sequence.  For instance, the attorney may want to stress the expected testimony of a witness who comes in at the end of the chronological sequence.  If the case dictates, this can be done effectively.  However, once the point is made, resume with the chronological presentation and when the time period approaches for this witness, explain that you have already covered that expected testimony.
One effective deviation from a straight chronological approach in an opening statement may be to emphasize, for example, that every expert that will testify will agree on this critical point.  Only the defendant disputes it.  In this fashion, summarizing blocks of testimony on particular issues can be argued to the jury making the chronology more effective as you go through it later.  Topic sentences and summarized conclusions are effective ways to argue in an opening statement without breaching the rule against argument in an opening.
The order of the witnesses is a critical trial decision.  Should you call the defendant in your case in chief?  Should the plaintiff be first or last?  Where do the experts fit into the testimonial scheme?  The answer to each of those questions is it depends.  Generally, unless you have a deposition of the defendant in which he makes critical admissions about which he cannot credibly change his testimony, it is not wise to call the defendant in your case.  After all, you want a simple and clean presentation of the evidence to the jury.  The defense will do everything possible to interrupt this flow and confuse the jury.
    The order of plaintiff’s testimony is usually governed by the credibility and strength of the plaintiff.  First or last are common periods for that testimony.  Expert witnesses may also go first or last depending on their abilities.  Unfortunately, because of timing, expert witnesses have to testify when they are available.  If it took longer than expected to pick the jury or examine a witness, the timing of his testimony could be affected.  Often, a plaintiff does not have the luxury of calling their expert at the precise time in the case suited for his testimony. 
You must not only expect the unexpected in a trial, you must plan for it.  Be ready with other witnesses or depositions which can be used if a problem occurs with the timing of the testimony of a key witness.  Approximate the direct and cross examination time of each witness (building in a fudge factor), to help determine when witnesses will testify. Create several different orders in which the witnesses will testify taking into account that the case is either behind or ahead of schedule according to the way it was planned.  Number the exhibits, both demonstrative and evidentiary which will be used during trial.  There is nothing more ineffective than to attempt to make a critical point while fumbling with documents or exhibits.  Assume that you will be so engrossed with the witness examination that the exhibits and demonstrative aids must be useable by an idiot. Numbering on the back of demonstrative charts is an effective method to accomplish this task.
Test the order and method of presenting the evidence on a lay person.  If a spouse (or better yet, a child) can understand the order and issues of your case, you have succeeded.  Test it on family and friends.  One of the key mistakes lawyers make is to get so close to the case and know the issues so well that they assume that everyone must understand it the way they do. 
E.    Use of Experts
Much can be said about when and how to use your experts.  However, it cannot be emphasized enough that winning medical malpractice cases comes mostly in the screening process.  An effective screening process requires the use of qualified and knowledgeable experts.  It is the foundation upon which the theory and presentation rests.  Sending the case to bad experts will beget unsound opinions and a correspondingly bad result.  The challenge of the plaintiff’s bar in this regard is how to get great experts to review a high volume of cases without going broke before the case begins.  Although there is no easy answer to this question besides luck, building relationships and friendships with physicians is a good way to start.  Talk to doctors at parties.  Discuss the issues at your kid’s birthday parties.  Most physicians are willing to look at cases for you if they know you are only interested in serious and clear cut cases.  Keep up with the qualified experts used in the past.  Send them a Christmas card or drop them a note every now and then to keep the contact alive. 
When utilizing experts in the screening process, be mindful of issues involving specialists.  All too often, a physician practicing in a particular specialty will miss an issue associated with the screening of a case outside of his area of expertise.  That is why it is not only important to have resources to screen cases in many specialties, but also the experience to know that just because a known complication occurred does not mean that the procedure should have been performed in the first place.  Saving money in the screening process will cost you dearly in the litigation process.  It is a lot easier to absorb a few thousand dollars than tens of  thousands of  dollars.
If it is not economically feasible to spend the money to evaluate the case, either because of a lack of volume of these cases or limited financial resources, consider referring the case to an attorney who has the resources to get the case properly evaluated.  Getting experts in the early stages will allow you to get the bad news early enough to either reject the case or plan around the issue.  It is generally too late to begin this process when the motion for summary judgment is filed.
At trial, the most important thing you can do with your expert witness is to spend the time and money to prepare him.  Just because he is an expert in medicine does not mean he will fare well at trial.  You must go over the strengths and weaknesses of the case.  You must advise him of the theories and arguments that the defense will throw at him.  He must give credible and non adversarial responses on cross examination.  This writer likes to use experts with both clinical and teaching backgrounds.  The teacher comes out at trial.  The better the teacher, the more the jury will understand and like him.  When you are outgunned by the shear number of experts, the ones you call had better be good.  Make sure he draws on the flip charts to explain anatomy and difficult medical concepts.  It breaks up the monotony of the medicine and is entertaining to the jury.  Show x-ray or cineangiogram films when appropriate.  The jury will appreciate a presentation that is both interesting and fun to learn.
F.    The Medical Record and Exhibits as Tools of the Trade 
Of course, the proper use of the medical record as an effective exhibit is critical in the presentation of the case at trial.  However, the effective use of the record is not a last minute function.  It is the culmination of planning that begins with the very first request for the records, the organization of the record, the correct interpretation of that record, and finally, the effective use of the record as an exhibit. 
1.    Ordering the Record
It is essential that the first attempt to obtain the record from the healthcare provider comes through the client or his family.  Many hospitals and healthcare providers have standard procedures or policies when a record is requested by an attorney’s office.  Some of these requests are routed through the risk management department.  Some allow for the physician involved to be made aware of the request.  Records get lost, records get copied incompletely, and yes, records get changed.  When the client obtains the records under the legitimate pretense of a second opinion, there is a better chance of receiving a complete record.  Thus, ask the client to get the record initially.  However, even if the client obtains what appears to be a complete record, the attorney will still need to request a certified copy of those records during the litigation.  This is done not only for comparison purposes, but also because most healthcare providers will not provide a certified copy of the records to a patient and the certification is necessary to authenticate the records.  The methods for obtaining records is a topic beyond the scope of this paper.  However, some of the pertinent statutes regarding records are : La. R.S. 40:1299.96, 40:2144, 13:3714, 13:3715, and LCCP art 1465.1.
2.    Organization of the Record
    Once the record is obtained, it is well worth the money to have the record organized by a nurse or healthcare provider.  To aid in that organization, there are standard tabs that can be ordered that break the record down into various sections.  For instance, there are tabs dividing the record into physician orders, progress notes, and operative records.  By organizing the record into these categories, usually chronologically, it is much easier and more manageable to interpret.
    It is important that the record be organized before it is sent to an expert for review and evaluation, if possible.  Experts are busy.  The easier it is for them to review the record, the more thorough they will be in their review.  Often, the smallest of details which are buried in a thick record turn out to be the key to the case.  There is a much greater chance of spotting inconsistencies and subtleties in an organized record.  Your expert will also appreciate you for saving his time. This will  lead to his desire to work with you on future cases and save you money. 
    It is also worthwhile to have the person who is organizing the records provide a brief summary of the records.  If this is done, do not send it to your expert because it may get discovered. Also, you are paying for the expert’s expertise and you do not want to taint his opinion with summations of others, who may be less qualified.  The useful purpose of the summary is to save the attorney time when discussing the case with the expert.  It may also help in preparation of the chronology.
3.    The Correct Interpretation of the Record
    It is very important to correctly interpret the record.  Handwriting that appears illegible must be translated accurately.  It is not only embarrassing, but risky to have the jury see that you cannot properly interpret a record.  It smacks of being unprepared and incompetent.  Get help from your nurse or expert to decipher the record appropriately.  It is also extremely important to use the record with the defense witnesses during their depositions to lock them in to their interpretation of the record.  Your expert’s interpretation may not be the same as the defendant’s.  If your expert’s opinion is based on a flawed interpretation of the record, defeat is certain.  Do not be afraid to go over the record with the defendant during his deposition.  Ask the stupid question in the deposition so it does not get asked at trial.  It is very difficult for the defendant to recant testimony once he commits to an interpretation of the record. 
 
    4.    Use the Record Effectively at Trial
No matter how devastating a record appears to damage the defense, a record is only as good as it is presented at trial.  Blowing up the record for viewing by the jury is a common approach in medical malpractice cases, but should not be the endpoint of your preparation of the exhibit at trial.  Often, an enlarged record becomes more difficult to read or distorted.  One great technique to combat this problem is to have the record scanned onto a poster board and then enhanced by adding typewritten and highlighted graphics in a box pointing to the area of the record it purports to interpret.  Thus, the jury can see that the integrity of the record is maintained, but can easily read and focus on the area of the document about which you are making your point. 
    Bates stamping the record before admitting it into evidence is also a must.  Not only does it help the jury to quickly follow along or identify a key document in the jury room, it is also essential for creating a comprehensive and detailed record for appeal purposes.  It also avoids the “fumbling” for pages since your preparation will involve using those page numbers to quickly identify what you need in a voluminous record. 
    Record exhibits which are enlarged should be numbered on the back to avoid the annoying flipping during the trial while you are trying to make a good point to the jury.  The exhibits, to the extent possible, should also be premarked before trial so that time is not wasted marking the exhibit during the testimony.  Usually, before trial the defense and plaintiff can sit down and agree about the admissible exhibits making it possible to prepare an exhibit book with the actual exhibit numbers which will be used at trial.
 
G.    Statutory and Case Law Requirements
The statutory and case law requirements relating to malpractice cases have been set forth in the previous sections.  However, several parts of the act which have not been addressed bear mentioning here.  First, both the MMA and MLSSA put a cap on damages which can be recovered by the plaintiff.  That cap, $500,000, was established in 1975 and has never been adjusted for inflation.  It includes general damages and lost wages.  Past and future medical care are not part of the cap.
In a private case under the MMA, the underlying healthcare provider is responsible for payment of the first $100,000 plus interest on that amount, and the PCF is responsible for payment of the next $400,000 plus interest. In a case under the MLSSA, the 100/400 division does not apply because the state is responsible for the full $500,000 and the PCF has no involvement in state cases.
     This background is necessary in understanding several issues which arise at trial or post trial.  When victim or third party fault is quantified, thereby reducing the recovery to the plaintiff, does the court reduce the total judgment by the parties’ fault first before reducing the judgment to the cap?  For example, in a case in which the plaintiff is awarded $1,000,000 at trial (remember the jury is not allowed to know of the cap), and third party or victim fault is assessed at 20%, does the court reduce the $1,000,000 verdict to $800,000 before reducing it to the statutory cap of $500,000? Or, does the court first reduce the $1,000,000 to the cap of $500,000 and then reduce the award to $400,000 (20% of $500,000)? In Slavich v. Knox, 99-1540 (La. App. 4th Cir. 12/28/99), 750 So.2d 301 and Rauch v. Schiavi, 00-160 (La. App. 5th Cir. 10/18/00), 772 So.2d 749, the courts reduced the total damages for the victim fault before reducing to the cap. In our example, $1,000,000 gets reduced to $800,000 and then reduced to the $500,000 cap.
H.    Defenses and Closing Argument
As noted above, the defenses of victim and third party fault are alive and well.  This holds true even if the third party is not a qualified healthcare provider. However, one way to combat these defenses is through closing argument.
As with the other parts of a medical malpractice case, closing argument is a culmination of events and requires preparation even before the trial begins. In this writer’s opinion, medical malpractice cases are rarely won or lost in closing.  By the time of closing argument, most jurors have already made up their minds.  If you are looking to win the case on closing, your case has serious problems.  However, that does not mean that you should not give your closing as if the whole case depended on it.  If it sways one vote, it is worth it.
It is always effective during trial to use a large flip chart (on an easel) to emphasize points to the jury.  First, it prompts the jurors to write notes (which they are now allowed to do), regarding the points you want to make with the witnesses.  Second, it is a great way to summarize the evidence in a credible fashion during closing argument.  It is more persuasive to show the jury what was said rather than tell them and hope they remember it the way you tell it.
Another effective technique is to prepare a chart (usually done before trial) on the conflicting opinions rendered by the defense witnesses regarding the key points in the case.  Because of time constraints, this can be prepared from the deposition testimony which you have elicited during trial.  When the jury sees graphically just how contradictory the defense’s own witnesses have been, it can be very powerful.
Reemphasize the points made with your nice enlarged exhibits.  You can even use erasable markers during the testimony to make points on the blow-up for use in closing. 
Blow-up or use the verdict form and tell the jurors what you want them to do.  Jury forms can be confusing.  They need to know exactly how to fill out the form to avoid any unintentional results or an inconsistent verdict.  Emphasize how the plaintiff will receive less in recovery if third party or victim fault is found.  Tell them the consequences of filling the form out as the defense will instruct them to do. 
Do not overreach.  It is annoying to jurors when lawyers grossly exaggerate the evidence or ask for unrealistic dollars.  Trials are all about credibility.  Do not lose your credibility with the jury, the court, or opposing counsel by overreaching in your closing argument.
Always save time for rebuttal.  Rebuttal is important because, as the plaintiff, you get the last word.  There may be points which you do not want the defense to address in his closing argument.  Save those points for rebuttal.  Also, make sure to listen carefully to the defendant’s closing for key opportunities to demonstrate his exaggerations, etc during rebuttal.  Try to end the case on a positive thought and not a sympathetic one.
I.    The Jury Charges
This subject can form the basis of an entire paper on its own.  The charges and verdict form must be in the correct legal format.  Moreover, the verdict form must be presented in a fashion that does not confuse the jurors.  Thus, with respect to the trial, the verdict form is the most important element.
The jury charges are probably more important for the record on any potential appeal than to the jury.  Again, by the time the charges are given to the jury, they are tired and ready to get to the deliberations.  Charge reading by the judge usually takes at least an hour and can be very boring to the jury.
However, the important jury charges should be emphasized from the very beginning of the case.  The burden of proof is a good example.  Emphasize what you told them in voir dire, that is, that to prevail the plaintiff only needs to prove his case by a preponderance of the evidence - i.e. that something is more likely so than not.  You do not have to prove your case beyond a reasonable doubt or to a certainty.
    Another key jury charge you need in the charge conference and which needs to be pointed out to the jury is the loss of a chance charge.  Virtually every medical malpractice case involves an issue that a chance of a better recovery was lost by the defendant’s conduct. 
    Frequently, the defense has more experts at trial than the plaintiff.  This is usually because it has the benefit of the medical review panel opinion and members.  Stress the charge that states that it is not the number of witnesses which is determinative, but the quality of the opinion.  Emphasize that the jurors are free to disregard the opinions of the medical review panel if they do not find them credible.
    Make sure the record is made with respect to your objections during the charge conference.  Frequently, judges will conduct the charge conference in chambers without a court reporter.  If it looks like the judge is not allowing the appropriate instructions, ask for the conference to be on the record.  The court of appeal cannot fix something that is not contained in the record.
    Do not argue and object to every defense charge.  Yes they hurt.  But, if you argue on every minor charge, you have no credibility to argue on charges that truly do not belong in the case.  Pick your battles on charges wisely.  If you lose on an important charge which will be read to the jury, address it in closing.