Investigation is the first phase of a medical malpractice suit. The investigation typically begins with a phone call from the client, and obtaining a detailed history from the patient or the patient’s family. The next significant step is to send for all of the critical medical records pertinent to evaluating whether or not there is a viable and provable lawsuit. Once these medical records are received, the records are carefully reviewed and analyzed by me. Because I have been reviewing cases for almost forty years, I can frequently identify departures from accepted standards of care. If there is a sufficient basis for a lawsuit, the law in New York requires that a doctor with expertise in the area in controversy review the matter. In order to proceed to trial, the plaintiff must have an expert willing to testify that the defendant or defendants were negligent, or deviated from the standard of care. Because I have been in this specialty for many years, I have a large and highly qualified group of experts to review cases and will testify if the case has merit.
Serving a summons and complaint on the defendants commences the case. Because there is a strict statute of limitations in medical malpractice cases, it is important to identify all potentially responsible defendants in a timely fashion so that they can be included in the lawsuit. The defendants then interpose an answer and make various discovery demands. The case then enters the “Discovery Phase.” During the discovery phase, the plaintiff provides the defendants a Bill of Particulars, wherein the specific claims and allegations are set forth in a certain amount of detail. Because it is such an important document, I personally draft all of my own Bills. The specifics of the medical treatment as well as the injuries sustained are also set forth. Over the months that follow, the defendants are provided with medical authorizations permitting them to obtain not only the records directly involved in the lawsuit, but also many other additional medical records that potentially might be relevant in evaluating the case. During this timeframe, the attorneys appear before the assigned judge in the court where the matter is pending, at which time an order is generated setting forth a timetable for the completion of discovery.
The most significant event in the life of a medical malpractice case — with the exception of the trial —is the deposition, also know as an examination before trial (EBT). The plaintiff is deposed first. The attorneys representing the respective defendants are permitted to ask far ranging questions that may, or potentially may be, relevant to the case. Correspondingly, the plaintiff’s attorney is then permitted to take the sworn testimony of all of the defendants in the lawsuit. The depositions of the defendant doctors are a critical point in the litigation, and I always conduct them myself. The expertise of the plaintiff’s examining attorney frequently is responsible in affecting the ultimate success of the lawsuit. The doctors and healthcare providers are questioned concerning their treatment and the standards of care. Frequently, new and additional information is discovered during the defendants’ depositions that may not have been readily apparent from a review of the medical records alone. While the depositions are not the conclusion of the case, the ultimate success, or lack thereof, is frequently determined during this critical phase of the lawsuit.
Once all of the discovery is completed, the judge assigned to the case will meet with the attorneys again to certify the case as trial ready. Depending on the jurisdiction, a number of months later the case will begin appearing on the ready day trial calendar. Some jurisdictions have dedicated medical malpractice judges and parts, while others do not. The case frequently is carried on the trial calendar for many months before the presiding judge sets a trial date for the case.
The lawyers for the respective parties pick the jury, usually without a judge presiding. In many of the Metropolitan courts, the trial judge is not assigned to the case until after the jury has been selected. Once the case is sent to the trial part, the case proceeds to trial. The case begins by the plaintiff’s attorney giving his opening statement, during which time he explains to the jury what happened, what he intends to prove and how he intends to prove it. The defendants then follow with their opening statements. Because the plaintiff has the burden of proof in establishing his case, the plaintiff presents all of his evidence first. In a medical malpractice case, the defendant healthcare providers are usually called as witnesses during the plaintiff’s case, at which time they are cross-examined before the jury. The plaintiff is required to produce at least one medical expert to give testimony that there was a departure from accepted standards of care in this case. Such departures must have been a substantial contributing cause to the plaintiff’s injuries. The use of medical literature is severely curtailed in the courtrooms of the State of New York; literature can only be used to impeach the credibility of a witness, and cannot be used to directly prove an issue in controversy. Jurors are required to decide what the appropriate standard of care in the particular case was and whether it was or was not complied with based upon their evaluation of the testimony of the live witnesses in the courtroom.When all of the plaintiff’s proof has been submitted to the jury, the defense then presents its case. The defendant may or may not return to the stand to refute the testimony of plaintiff’s expert. The defendants call their medical experts to render opinions concerning the standard of care of the defendants and how it was met in this particular case.When both sides have rested, the defendants’ attorneys have the first opportunity to again come before the jury to deliver their closing statements. The plaintiff, who has the burden of proof, is permitted give his closing remarks last. The judge reads to the jury instructions on the law, which usually takes about 45 minutes. The jury then retires to the deliberating room to decide the case. The jury is given a series of questions, formulated by the attorneys and the judge, that relate to the case. By answering these questions, the jurors render their verdict. There are six jurors, but it only takes five of the six jurors to decide any of the issues in the case. When the jury has come to a decision, the verdict is read in open court.