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Litigation and Trial of a Medical Malpractice Case


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Nationwide only about 30% of all medical malpractice cases that go to trial each year are won by the patient. That means that the health care provider prevails 70% of the time. Much speculation can be offered as to why so many patients lose their medical malpractice cases. Part of the reason relates to the natural tendency of a jury to give the physician the benefit of the doubt in a close call.

Another reason relates to the complexity of the medicine involved and the difficulty and expense associated with properly trying the case. Given these statistics, it is not surprising that there are not that many experienced, qualified lawyers who regularly handle medical malpractice cases.

Medical malpractice cases take longer to get to trial than most cases. This is especially true in Louisiana where a patient must first file the claim with a medical review panel before a lawsuit can be filed. The medical review panel process will likely waste two years of time completing.

The testifying and treating physicians in the case are busy full time practitioners. Coordinating their schedules and the schedules of multiple lawyers is challenging to perform expeditiously. Once the case is ready for trial, the court may continue the case to a new date if another case proceeds to trial. Since the court's docket must move efficiently, the court sets numerous cases for trial at the same time, knowing in advance, that most will settle or be dismissed. If two come up at the same time, one must be continued.

When the litigants and the court are finally ready to proceed with the trial, the presentation of evidence can begin. Presenting evidence in a medical malpractice case usually involves the testimony of competing expert medical witnesses. Experienced medical malpractice attorneys also use visual aids and computerized equipment to show the medical chart and medical illustrations to the jury.

It is important for the victim's medical expert witness to be at trial to personally explain why the standard of care was breached by the defendant. Showing a previously taken video taped deposition of your expert is no substitute for his live appearance. He must be "live" so he can illustrate difficult concepts with drawings and explanations.

A medical malpractice case in Louisiana also presents a challenge in instructing the jury on the applicable law. At the close of the case, the litigants meet with the court to argue about which instructions the jury should be given regarding the current state of the medical malpractice law. Following this conference, the court reads pages of instructions to the jury giving them the guidelines for deciding the case. These instructions last at least an hour.

Following the jury instructions, the jury retires to the deliberation room where they will first elect a foreperson of the jury and then begin their deliberations. Once a verdict is rendered, the litigants are called back to the court room where the verdict is read aloud in open court.


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