A medical malpractice trial Part 1

For the past week, I’ve been involved in what seems and feels like an around the clock effort:  a trial my family initiated against a cardiologist for medical malpractice in the premature death of my mother nearly 3 years ago.  This is a jury trial in Superior Court in the State of California.

  • When you initiate legal action, even when you hope the matter will settle, your attorney prepares as though you will have to go to trial even when you hope the matter settles between the party.  Since December 2008, the doctor’s lawyer and insurance company have encouraged the doctor to settle with us–he has consistently declined.
  • Our jury was selected from a panel of 66–about 30 of whom had a serious opportunity to serve on the jury panel.  Many of the potential jurors spoke English only as a second language.  The judge had no difficulty dismissing potential jurors immediately if they had language skills that would make it difficult to follow the case.  Our jury was selected after about 5 hours of actual court time.
  • The trial is mentally and physically exhausting for the family.  I can’t tell you if this is because it occupies your mind every waking minute, because there is so much at stake for both sides, because of the mind-numbing detail in this case or perhaps because of the personal loss that brings this matter to court.
  • The medical lobby has been extremely effective in California.  Because my mother died, the maximum possible financial damage award is $250,000.  The jury is not aware that there is a cap on award.  If we prevail, they could award $0 or millions.  After they have completed their jury service, they are thanked for their service and never know that the amount of the award is capped at $250,000.  This amount has not been increased by the state legislature for over 30 years. This low amount makes it difficult to find great attorneys willing to take on such cases.  [Note:  If you survive medical malpractice, the same caps do not apply–it’s only if you die.]
  • In another troubling nod to the medical lobby in California, prior medical malpractice cases are inadmissible in a malpractice trial.  The jury does not know that, in this specific instance, the cardiologist has faced a total of 5 malpractice cases in his 16-year career.  We know that prior to December 2008, he has lost 2: 1 by jury verdict and 1 by settlement.  Our attorney has told us that the other 2 are settled and our case is all that remains. The California state website for physicians indicates that it is the authoritative source for information but it does not provide any negative information about a doctor’s background.
  • Our attorney only goes to court in about 20% of his cases.  A trial requires the attorney to work all day, prep witnesses before court, at lunch, and after court is dismissed and work into the evenings.  It is grueling work.  Each case is quite different.
  • In a civil trial, the plaintiffs need to convince 9 out of 12 jurors that the defendant is guilty;  the defense needs to only convince 4 out of 12 that the defendant is not guilty.  The burden is much lower than in a criminal case.  We have to prove that it is “more likely than not” that the doctor was negligent and that his negligence resulted in my mother’s premature death.
  • Today in the defense presentation, I witnessed incredible sloppiness and disingenuous statements by their experts.  They took bits and pieces of data out of context and “generalized from a specific” which means to take one piece of data and apply it very broadly, even though the generalization is not only incorrect but misleading.  That is incredibly frustrating to listen to. My sense is that our attorney got more benefit out of the defense experts than the defense did via his very effective cross examinations.
  • If we win the case, Medicare wants to claim $8,000 of the possible award.  Why can’t Medicare pursue their own case against the doctor?  Why is Medicare able to piggyback on our case?

Tomorrow, the defense will rest.  The judge will issue jury instructions, the attorneys for both sides will give closing arguments, and, then, the jury will get the case to render a verdict probably later in the day.

Are we going to prevail?  I believe we will. I’ll provide an update soon.

Dave Gardner

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