Series: Malpractice From A-Z Four of a Series of Five. epare. How to Prepar Medical Malpractice Trial by Gregory J. Minana, JD & Leslie P.

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1 Series: Malpractice From A-Z Four of a Series of Five How to Prepar epare e for the Medical Malpractice Trial by Gregory J. Minana, JD & Leslie P. Wallace, JD As you work with your attorney to prepar epare e for a trial, you must remember that the jury is now your audience. Greg Minana, JD, is a member, and Leslie Wallace, JD, is an associate of Husch & Eppenberger, LLC, in its St. Louis office. Husch & Eppenberger, LLC, acts as outside general counsel to the MSMA. Introduction So, you re going to trial. If you have reached this stage of the litigation proceedings, presumably efforts to settle the case on negotiated terms failed. It is possible that as you hear the word trial scenes of Perry Mason, L.A. Law or Boston Legal (depending on your generation) are running through your mind perhaps a flurry of attorneys uttering words you have never heard before (better referred to as legalese ) in front of a judge and jury; an attorney looming over the witness stand firing questions at what appears to be a tireless rate of speed; and the constant echoing of the judge saying objection, sustained, and instructing the jury will disregard that last statement. To calm you, there is good news and there is bad news. The bad news is that all of the above does actually happen during a trial, but the good news is that it does not all happen that fast and you will be adequately prepared beforehand. What you might see on television is intentionally condensed to depict an entire case in less than forty minutes, and a trial in less than twenty minutes. In the real world, your case will develop over the span of 1-2 years, and the trial will last 3 to 10 days. During the early stages of the case your role was more akin to a bystander because you were on the outside of the case - reading medical records, depositions, and reports from your attorney. However, during the pre-trial and trial, your role is that of an active participant, and you should expect to work closely alongside your attorney to prepare. How Should I Prepar epare for a Trial? Once your attorney informs you that your case is going to trial, the actual preparation may begin as early as 2-4 weeks prior to the trial date. By this point you have already had your deposition taken, and have spoken at length with your attorney about the strengths and weaknesses of the case. Now, being weeks away from a trial, you should expect that the frequency of conversations and contact with your attorney will increase, along with your own participation. Throughout this pre-trial period it is reasonable to expect to talk with your attorney almost daily. This is a medical malpractice case and the law requires that a medical expert establish the standard of care. Therefore, as your attorney shapes and finalizes the defense of the case, he or she will seek assistance from you to explain how to best fit the medical analysis into the 476 Missouri Medicine Membership Directory September/October 2006 Vol. 103 No. 5

2 legal framework. This involved period requires patience on your part. In preparation for this deposition, you might have reviewed the patient s medical records, laboratory reports and related studies on the particular care or treatment at issue and explained to a relatively medically sophisticated audience (the attorneys) how and why you provided the specific care and treatment to the patient. Similarly in preparing for trial, you will assist your attorney in presenting diagrams and literature that supports your position. At this point, one to two years worth of discovery (sharing of information between the parties) has taken place, and your attorney will depend on you to assist her in assembling this fragmented information into a compelling story. You and your attorney will work together to tell this story. You will have to tell the story so that it is medically accurate, and your attorney will tell the same story so that it is appealing and persuasive for the jury. However, as you work with your attorney to prepare for a trial, you must remember that the jury is now your audience. Therefore, you should know that while your medical expertise is still a necessary component of the case, it is how you explain this expertise to the jury that is critical. Generally, the jury is not medically sophisticated, and therefore may not be persuaded by medicalese. As you work with your attorney, keep this in mind. What Do I Wear? Medical professionals do not often think about their clothes or the details of their appearance. Andre Aggasi once said, Image is everything. He was only partly wrong, because image is something. Whether we like it or not, our appearance says a lot about us and is even more important when people are asked to make judgments based upon limited information. Generally, it is appropriate to wear professional attire when you appear before the court in any capacity. In doing so, you should wear a professional suit that you can sit in comfortably for several hours at a time. It is also preferred that your suit be in a dark or neutral color that is not a distraction to the court or jury. The key is distraction you do not want anything about your clothes, jewelry, hair or anything else to distract the jury s attention from the evidence at trial. Often the greatest statement you can make in your case is when you are not even speaking. Your demeanor, what the jury observes throughout the entire trial, is critically important to the outcome of your case. The pointed truth is that if the jury likes you, while you are not guaranteed a win, it will be much, much harder for them to assess liability against you. At all times you should appear professional, confident (but not arrogant) and relaxed. It is important that you watch your facial expressions because the jury will be observing to see how you react to unfavorable testimony regarding the case. If you show signs of anger, irritation, or make any emotional outburst, you may permanently damage your credibility with the jury. Unfortunately, these cases are not always about what is right or fair. While you may genuinely feel that you did everything correctly, there are people on the other side of the case who contend that you did something wrong. The jury has to make a decision between two opposing positions, and they are going to look for any and everything to assist them in that decision. You do not want to appear angry or defensive at being dragged into court. Rather, you want the jury to see you as someone eager to appear in court and have the opportunity to defend yourself and clear your name. Finally, if a spouse, family member or significant other would like to offer their support to you, they are welcome to attend any portion of the trial. (In fact, the trial is open to the public and anyone can attend.) However, the same rules of attire, conduct and demeanor that apply to you, apply to them. There are both pros and cons to having your spouse or significant other, attend the trial. On one hand, having them at the trial displays a visible support system for the jury to see, and this can make it harder for the jury to find against you. On the other hand, it is not helpful if you are unable to maintain your focus, unable to speak candidly, or if your family member(s) will be a distraction for the judge or jury. Often it is advised that a family member only attend the voir dire, opening statement, and closing argument, but this is a decision that you can discuss in detail with your attorney. What Will The Evidence Be at t Trial? Depending upon the venue (the physical location where the case is tried), you will learn the actual trial date several months to several weeks in advance. Regardless of when the actual date is set, the Court will require the parties to have a pre-trial conference. Only the attorneys attend this conference. As its name dictates, this conference takes place prior to the trial (usually the morning of the trial, or as early as two weeks prior to the trial) and is an informal meeting at which the opposing attorneys meet with the judge to discuss matters of evidence and narrow the issues that will be tried. One of the primary goals of the pretrial conference is to educate the judge. Even though the judge may be somewhat September/October 2006 Vol. 103 No. 5 Missouri Medicine Membership Directory 477

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4 familiar with the case and the parties, and may have already made decisions with respect to different issues throughout the duration of the case, the judge is also giving the same attention to hundreds of other cases. You may recall that in your deposition you were asked numerous questions by the opposing counsel inquiring into various facets of your life these questions may have included your family history, education, licensure, work history, other litigation and ultimately your expert medical opinions. It is possible that you questioned the relevance of this information. However, you should keep in mind that the information discovered in your deposition may have been discoverable - properly discussed in a deposition, but it may not be admissible at trial. By this point in the litigation, the parties have shared a great deal of information, including your deposition testimony. This information was generally, with some exceptions, discoverable, which is defined as reasonably calculated to lead to admissible evidence. Admissible evidence is that which is relevant to the issues being tried and not overly prejudicial; and relevant information then is that which tends to prove or disprove a necessary element of the case. The overall goal is to ensure that the jury only hears relevant information that will allow them to fairly assess your case. Determining what evidence the jury should hear is one of the primary functions of the pre-trial conference. It is likely that your attorney will file one or more motions in limine. This is a formal request that your attorney will make to the judge in order to prevent the plaintiff s attorney from introducing certain information at the trial. This type of motion ultimately protects you, by preventing the jury from hearing irrelevant information, and it protects the integrity of the trial, by ensuring that the proper issues are being tried. For example, if it is elicited during your deposition that you were sued in a prior malpractice suit on an issue unrelated to the present suit, then it would be improper for the plaintiff s attorney to mention the prior malpractice suit to the jury. Simply stated, the jury might be unable to distinguish a prior malpractice suit from the current lawsuit, and this information would only serve to prejudice the jury against you, and further impair your right to a fair trial. Hand in hand with what evidence should be heard, the motions in limine effectively narrow the issues that will be argued at trial. Your attorney will place before the judge the specific questions which are at issue and thereafter contend that only the evidence that is relevant to those issues should be admitted In addition, the pre-trial conference is also the time in which your attorney will advise the judge of the witnesses you expect to call, and any other unique evidentiary issues that will be applicable in your case. Who Will Hear My Case? The first aspect of trial is the selection of the jury. A jury pool is comprised of local citizens who have responded to a jury summons and have gathered at the court to serve as a juror in a criminal or civil case. Each pool consists of approximately 40 prospective jurors who are thereafter questioned by the judge and/or the attorneys to determine whether they are suitable and/or competent to hear your case. This process is formally known as voir dire, a French term which literally means to to speak the truth. The Constitution states that every defendant shall have their case heard by a jury of their peers. In your case, however, this does not mean that the jury will be made up of 12 physicians, but rather it will be comprised of 12 ordinary citizens so you will need to educate them on the medical issues. During voir dire, both attorneys may have the opportunity to ask each member of the jury pool (or panel) various questions that will assist both you and your attorney in determining whether this person can be fair and impartial in listening to your case. For example, your attorney may ask the following: Has anyone present ever sued a doctor? If a person answers yes, then depending on the discussion thereafter, this response may be a reason to challenge whether that potential juror is be unable to be impartial towards you based upon their prior experience. There are two types of challenges or strikes that an attorney may make against any person in the jury pool: the first is a for cause strike, where a person is removed from the jury pool based on an expressed bias; and the second is a peremptory or discretionary strike, for which no reason is needed at all, so long as there is no manifestation of discrimination. In Missouri a civil jury consists of 12 jurors and one or two alternates. Your participation and role during voir dire is very important. This is one of the few times that you will have an opportunity to directly influence the jury. Your attorney will look to you for assistance in observing the jury s demeanor to determine if you have any initial feelings about a particular prospective juror. You may observe a person smiling and nodding at you, which may indicate sympathy and a person that you may want on your jury. On the other hand, you may observe someone glaring at you, which may indicate a strong bias against you. 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5 might be someone that you would suggest be removed them from the jury panel. Prelude to the Trial: The Opening Statement After the jury is selected, each attorney will make an opening statement to the jury. The plaintiff s attorney will go first, followed by your attorney. These statements are usually a short summary that serves as an outline of what the attorney expects the evidence in the trial to show. This is often referred to as the big picture. Generally these statements should not be argumentative, as the jury has not been presented with any evidence to consider. However, do not be surprised if your attorney makes an objection (request to the court to prohibit a certain statement) during the opening statement of the plaintiff s attorney and vice versa, if the attorney feels that the statement is bordering on argument. It is common for attorneys to push the line between argument and statement. Round 1: Plaintiff s Case-in-Chief Chief After your attorney gives the opening statement to the jury, the plaintiff s attorney will present his/her case or case-in-chief to the judge and jury. A. Presenting the Evidence The presentation of the plaintiff s case may be a highly anticipated aspect of the medical malpractice trial for the defendant simply because of the unknown. While Missouri s civil practice rules require that the parties continually engage in the sharing of information throughout the discovery and pre-trial process, there is no duty placed on either side to discuss exactly how they will choose to present their respective case to the jury at trial. In fact, this is information that is privileged and protected. Nonetheless, your attorney is experienced in litigating medical cases, and based upon this experience will be skillful in anticipating the theories and arguments of the plaintiff s attorney and preparing you for many of the what ifs that may occur during a trial. One important consideration and strategic advantage that the plaintiff s attorney has is the order in which he or she will call their witnesses. At a minimum, the attorney will usually present the plaintiff to testify about their treatment and injuries; plaintiff s expert(s) to testify about the standard of care; and perhaps family members and friends to testify about the extent of damages the plaintiff has suffered. Additional witnesses may include the treating doctor(s) who could testify that some portion of the treatment was below the standard of care, and finally, you. As a defendant in the case you should understand that you are probably the most important witness and the plaintiff s attorney will almost certainly ask you questions at the trial, whether during his or her case or your attorney s case-in-chief. The content of this oral exchange with plaintiff s attorney would be very similar to your deposition, with the exception that he or she would not be able to discuss those subjects that were properly excluded during the pretrial conference. However, your attorney may counsel you on a different approach or demeanor for these questions. More often than not, the first time you will take the witness stand is during your case (the defendant s case-inchief), and the plaintiff s attorney would thereafter question you. However, the plaintiff s attorney may call you as a witness during his or her case in order to surprise you and perhaps catch you off guard. If you are called, it is important that you remain professional and courteous and be prepared. You should not make any facial expressions indicating surprise or shock, nor should you be argumentative. Above all, remember who your audience is the jury. You are now an active participant and should focus on educating the jury. It is permissible, and even advisable, to answer every question (unless your attorney makes an objection) while facing the jury and making eye contact with them. The jury will make the ultimate decision about your liability, so regardless of when you tell your story you should make them understand why you did what you did for the patient, and how the patient s injury or damages are unrelated to your care and treatment. B. Preparing Yourself Emotionally A medical malpractice trial can take an emotional toll on you, and it is therefore advisable that you prepare yourself emotionally for many factors. The trial itself may be very long, lasting several days to several weeks depending upon the number of medical issues being tried as well as the number of defendants. Your attorney will not be able to present your case until the plaintiff s attorney is finished; however you are expected to be at the court for the duration of the trial. Even though you must remain attentive while the jury is present, your attorney may encourage you to bring reading material or other work to do while the jury is not present. (The judge is presiding over many cases at the same time and may be required to take frequent breaks from your case to handle issues that may arise in another case.) Potentially the most emotional factor is preparing yourself to hear days, and even weeks, of sympathetic testimony from the plaintiff s witnesses 480 Missouri Medicine Membership Directory September/October 2006 Vol. 103 No. 5

6 which may evoke empathy from the jury and perhaps lead you to feel nervous or anxious about your own testimony. In truth, medical malpractice cases are hard on everyone involved. You may feel angry or frustrated that your medical decisions are being questioned or attacked, but do not want to react visibly to what you hear, as your reactions may be misinterpreted. Moreover, the jurors may become angry if they believe you are trying to unduly influence them through your reactions. However, remember that you will have your turn to tell your story. Round 2: Defendant s Case-in-Chief Chief After the plaintiff has rested (completed his case), it is your attorney s turn to tell your side of the story to the jury. Remember that yours will be the last evidence that the jury will hear. A. Presenting the Evidence Similar to the plaintiff s attorney, your attorney will present your case-inchief to the jury through witnesses. At this point the jury has heard several days of testimony intended to make the plaintiff appear very sympathetic, and you appear less than competent. The plaintiff s attorney had the strategic benefit in selecting its order of witnesses. However, having heard the testimony of the plaintiff s witnesses your attorney is able to use your witnesses to persuasively tell your story while rebutting any allegations previously made in the plaintiff s case-inchief. You have the strategic advantage of having the jury deliberate with your evidence as the most recent in their mind If you have not already been called as a witness in the plaintiff s case, then you will be called as a witness in your case to testify on your own behalf. This will be your direct examination. Direct examination is where the attorney who called that witness to the stand asks the witness questions. The scope of your examination will generally focus on several things, including care and treatment you gave to the plaintiff, and why the plaintiff was not damaged by the treatment you administered, or, in the alternative, that the injury suffered by the patient was inevitable due to pre-existing conditions. Your attorney will discuss any additional information that may be important to your testimony in great detail so that you are well prepared. After you have finished your direct examination, the plaintiff s attorney will cross-examine you (take his turn to ask you questions). During your cross examination you may hear your attorney object to a question posed by the plaintiff s attorney. It is in the judge s discretion whether to overrule the objection (requiring the question to be answered), or sustain the objection (ruling that the question should not be answered). After your cross examination, your attorney may conduct a re-direct examination where he or she asks additional questions to you. If your attorney chooses to re-direct, you should not feel that you made a mistake during your cross examination. Re-direct may happen for several reasons, including, that you made a statement during your cross examination that your attorney feels needs to be further explained or clarified to avoid confusing or misleading the jury, or your attorney may want to reiterate a strong and positive aspect of your case so that it is the last thing the jury hears. Along with your testimony, your attorney will call an expert(s) to testify in your case as to the appropriate standard of care, which in a medical malpractice case means the degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendant s profession. 2 Your attorney s question to the expert will focus on several things, including whether he or she is qualified to testify as an expert. With this, your attorney will question the expert about his or her specific knowledge concerning the medical issues in the case, how long he or she has specialized or received training regarding the medical issues in the case, and the process method by which he or she developed his or her medical opinion. Finally, your attorney may have other independent witnesses, along with any other treating doctors. The treating doctors are sometimes the most important because they are often regarded by the jury as independent and unbiased. B. Focus on Educating the Jury It cannot be emphasized enough that when giving your testimony your audience is the jury. Your focus should be to educate them concerning why you took the particular actions you did in regard to the care and treatment of the plaintiff; why you believed these actions were medically necessary; and how the patient s injuries were indirectly related to your treatment, or would have inevitably occurred given the patient s prior medical history. While the stated theme throughout has been to remain professional and courteous, it is a good idea to also be energetic when you speak to the jury. Remember that the jury represents the average lay person who is probably unsophisticated in the area of medicine. In order to assist you in preparing for your direct and cross examinations, your attorney may suggest that you practice your examination before the trial starts. Often, this practice is videotaped to assist you in seeing yourself as the jury sees you and allowing your defense team to critique your presentation. Will ill the Jury Be Guided in Deciding My Case? In Missouri the judge reads instructions to the jury after the close of the evidence (your case-in-chief) and prior to the closing arguments. Jury instructions are essentially a narrow and specific explanation of the law. September/October 2006 Vol. 103 No. 5 Missouri Medicine Membership Directory 481

7 These instructions are intended to provide a detailed guideline that identifies the relevant law to your specific case, and directs the jury how to decide the case based upon the evidence they have heard. This is also known as charging the jury. The inclusion, omission, or modification of any instruction is argued by the attorneys and ultimately decided by the judge. The number of final instructions will vary based upon the number of claims or theories that were alleged in the case, as well as the number of defendants. Generally these final instructions charge the jury not to assume facts not in evidence, specify the number of jurors that must agree in order to return any verdict (for or against you), detail the requisite burden of proof (the obligation of plaintiff to prove his allegations), define any necessary terms used in the instructions (one such term is negligence in a medical malpractice case), ask the jury to assess percentages of fault if there are multiple defendants, and indicate the amount of damages, if any, to be awarded to the plaintiff. The Final Round: Closing Arguments After the final jury instructions are read, each attorney will present his or her closing argument to the jury. The closing argument is just that, an argument, whereby the attorneys argue the facts and draw upon inferences from those facts to persuade the jury to make a certain decision. Put simply, the attorney argues what conclusion, or verdict, should be drawn from the facts, or evidence, introduced into the trial. Similar to the opening statements, the plaintiff s attorney will go first, followed by your attorney. Unlike the opening statement, however, where your attorney could only say what he or she expected the evidence to show, in his or her closing argument he or she is now able to state, based upon the facts presented, the evidence did show x, y and z and therefore your verdict should be in favor of the defendant. The closing argument is generally longer and walks the jury in greater detail through the evidence that was presented during the trial. Lastly, plaintiff s attorney is allowed to save some time from his or her closing argument to make a final rebuttal argument. How Long Will ill It Take for the Jury to Make a Decision? After the jury has heard the closing argument, the judge will provide them with the instructions and a verdict form which contains instructive language on how to make their decision in accordance with the evidence presented and the law. The judge will thereafter dismiss them to deliberate (decide) the case. The jurors will leave the courtroom and assemble into a nearby room where they will discuss the plaintiff and defendant s case among themselves until they reach a decision. No party or witness is allowed to speak to the jury during this time. This process of deliberation is the point in which the duties of the judge and the jury essentially come together. The judge is instructed to hear and decide the law and the jury is instructed to decide the facts. In deliberating, the jury is deciding the outcome based upon the facts they heard at trial, and in conjunction with the judge s continuing interpretation of the law, both before and during the trial. The instructions are then fundamentally the judge s final way to ensure that the jury tailors the evidence within the scope of the appropriate law. A jury may deliberate for less than an hour or for several days. You may be excused while the jury is deliberating, but most defendants want to be present for the verdict. At the end of their deliberation, the jury will complete the verdict form. The form requires the jury to write in the name of the party in whose favor the jury is deciding. If the verdict is for the plaintiff, then the jury will also fill in a dollar figure for the total amount of damages they believe will compensate the plaintiff for the injuries alleged. This dollar amount may be $0. How Do I Know if I m Liable? When the jury has finished deliberating and reached a verdict, they will notify the bailiff or appropriate court personnel and be led back to the courtroom. The verdict form is returned to the judge, and the judge will read the verdict out loud. In order for you to be held liable in Missouri, at least 9 of the 12 jurors must agree that the plaintiff s attorney presented enough evidence to show that by a preponderance of the evidence you were liable for the injury or damage to the patient. This particular burden of proof requires a finding that you were more likely than not to have been medically negligent. There is no mathematical inquiry involved in this finding. If the jury finds you liable, then judgment is awarded against you in favor of the plaintiff. But, with all hope, the verdict is returned in your favor. Refer eferences ences This article is written by Gregory J. Minana and Leslie P. Wallace. Greg Minana is a member and Leslie Wallace is an associate of Husch & Eppenberger, LLC, in its St. Louis office. The information contained in this article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and readers are urged to consult their own attorney concerning their own situation and any specific legal questions. 2. MAI [1990 Revision] MM 482 Missouri Medicine Membership Directory September/October 2006 Vol. 103 No. 5

8 As I See It Kansas City Blues: Fighting the Insurance Cabal in Court by William D. Soper, MD Area ea physicians came to believe that the system of providing medical care e had been dramatically and harmfully altered ed and influenced in every way imaginable by outside third parties the insurance companies. It was in this climate that physicians determined they must work together and take action. William Soper, MD, MPA, is President of Mid-America Medical Affiliates. He practices Family Medicine in Kansas City, MO. Introduction Kansas City area physicians filed four class action lawsuits against health insurers last year. Two were filed in Jackson County, Missouri, and two in Wyandotte County, Kansas. The physicians allege the defendant insurance companies have engaged in unfair payment practices with regard to physician billing, and anticompetitive conduct that has wrongfully depressed physician payments in the Kansas City area. Difficult Times to Practice in Kansas City Area The Kansas City medical community has long found it difficult to recruit physicians to join area practices. Although other causes may play a role, poor reimbursement for services is the most commonly cited factor when physicians choose to locate elsewhere. It is well known that groups in competing midwestern communities typically offer significantly higher salaries, often half again as much as market rates in Kansas City. For example, Topeka cardiologists recently offered recruits a salary $80,000 higher than heart doctors in Kansas City; and a Springfield surgical group outbid an area surgical group by $40,000 for a graduating general surgeon. Given this, it was apparent that physician peers elsewhere are financially healthier than their colleagues in Kansas City. Several months before the lawsuits were filed, the Mid-America Medical Affiliates commissioned a professional survey to formally compare physician reimbursement in several midwestern communities. The results were astounding. It found that Kansas City doctors were being paid less much less than their counterparts in St. Louis, Des Moines, Topeka, Wichita, and Springfield. Physicians in St. Louis were paid 7% more than their peers in Kansas City; in Des Moines they were paid 29% more, and in Springfield some 33.5% more for identical E&M and CPT codes. These inequities are even greater when one considers that overhead costs in these comparison cities are equal to or less than those in Kansas City. This means that Springfield physicians are taking home up to twice the income of Kansas City doctors for the same services. The survey also investigated whether Kansas City patients and employers benefited from these lower physician payments. Surprisingly, it found that health insurance premiums are not lower in Kansas City than in comparison cities. In most cases they were somewhat higher. So, it seems, local physicians are being paid less not for the good of patients or the benefit of employers, but for the profits of the insurance companies. It seems as though insurance industry profits set new record highs with every reporting. According to its proxy statement released earlier this year, United Healthcare posted $1.6 billion in gains (and paid its CEO $8 million a year September/October 2006 Vol. 103 No. 5 Missouri Medicine Membership Directory 483