Kelly on Malpractice

There have been far too many defense verdicts recently in medical malpractice trials. Those of us in the Tennessee Medical Malpractice Litigation Group have been lamenting the recent spate of losses. There have been many theories for this troubling development. Some say it is the “tort reform” environment that is responsible. Jurors poisoned by the recent political discussion of a “malpractice crisis” attendant to the pending federal health care legislation are over-scrutinizing the plaintiff’s claims. Others say that the wrong cases are being litigated. In other words, the plaintiff’s bar is settling their winners and taking their losers to trial. It could be a combination of these theories. However, I have a theory of my own. From what I’m hearing and seeing, the plaintiff’s bar is neglecting the most important and indispensable element of any tort action involving personal injury or death—the damages. Far too often, there is myopia directed toward the liability at the expenses of damages. That is the fight that the defendant wants. In fact, I believe the defendant has already won to some extent when he drives the lawsuit into a liability contest that overshadows the proof of damages. Every great trial lawyer will tell you, whether in books, seminars, or articles that you must develop the damages at trial to succeed at trial. You have all heard this. It is more true now than ever. Substantial damages level the playing field in a medical malpractice case. Therefore, I am devoting this newsletter to proof of damages in order to redirect our attention to what really counts in medical malpractice trials.

In many respects, the development and proof of damages in medical malpractice cases is no different than the development and proof of damages in any other type of tort suit. On the other hand, medical malpractice cases often involve special obstacles and difficulties for identifying your client’s injuries and establishing that those injuries were due to the negligence of the defendant. These special problems usually arise from the fact that in most medical malpractice cases, the injured plaintiff was treated for an injury or illness that pre-existed the plaintiff’s encounter with the defendant physician or other healthcare provider. Because the plaintiff has the burden of proof, it is incumbent upon plaintiff’s counsel to identify what injury is due to the defendant’s negligence and prove that the plaintiff’s injuries and damages flow from the defendant’s negligence rather than the underlying illness or injury that pre-existed the negligence. I think damages can be maximized when the following two general principles are kept in mind and your proof and argument seek to emphasize them: (a) juries help those who help themselves (e.g., plaintiff has returned to work or attempted to return to work; plaintiff has done all physical and occupational therapy prescribed; plaintiff has a good attitude and is not bitter and defeatist); and (b) a money award will fulfill a well-defined, specific need (e.g., income replacement; future surgery; therapy; child care to allow one to return to work). Your proof of damages should demonstrate to the jury the applicability of these principles. You should also show how the jury’s verdict is well deserved and can make a meaningful difference in the plaintiff’s life. The establishment and proof of your client’s damages begins with voir dire. You should use voir dire to educate the jury about your client’s injuries and damages. For example, if your client is a paraplegic, ask if anyone has any special knowledge, training or experience in the daily struggles experienced by a paraplegic. Ask a series of questions regarding any type of therapy, medical procedure or ongoing needs that your client has to find out if anyone has experience with similar problems, whether it is through education and training or through the care of a loved one. If your client has catastrophic injuries and a guardian has been appointed, ask if anyone has ever been appointed as a guardian by a court of law and shouldered the responsibility to provide for all financial, physical and emotional needs of a loved one. Also ask if they have ever functioned in that role for a loved one or a friend even if they haven’t been formally appointed and given that responsibility. When you ask these questions about a guardian, you will see many potential jurors turn their eyes to the guardian sitting at the table with you. If your client had injuries, illnesses or limitations prior to the events at issue, ask the potential jurors how a person with limitations should be treated by a medical professional and whether that treatment should be any different than the treatment afforded an able bodied person. Ask open-ended questions, not leading questions that call for a “yes” or “no” answer. Work hard to get the potential jurors to open up and discuss with you and among themselves how they feel about issues of importance to your client’s case. You are killing two birds with one stone: striking uncaring jurors and conditioning the remaining members for the ensuing proof of damages.

During the proof phase, effective use of lay witnesses such as family members, co-workers, friends, etc. can be a very powerful method to demonstrate your client’s injuries. Use the defendants and their experts to demonstrate the significance of your client’s injuries and damages. The beauty of this is that you can take a defense witness who has the ability to undermine the liability aspect of your case and make him acknowledge the seriousness of your client’s injuries. If you have a client who has suffered significant injuries and the defense witness resists acknowledging the severity of those injuries, you have won a victory already. A couple of examples of using medically trained defense witnesses to your advantage come to mind. The medical records of your client are always a potential great source for documented pain and suffering, both mental and physical. Another example is when the defendant calls a Life Care Planner to defend against your damages. These professionals are very ripe for demonstrating the significance of your client’s injuries. These professionals have seen first-hand the devastation caused by catastrophic injuries such as those experienced by your client. Rather than focusing on refuting their testimony minimizing the cost of your client’s future care, use them to educate the jury about the lifelong hardships your client must endure daily. Have them acknowledge and agree that catastrophic injuries have a major impact on the entire family and not just on the one that has been physically injured. After demonstrating the overwhelming nature of your client’s injuries, ask them how much of the cost they have calculated in their life care plan covers the pain and suffering of your client and the client’s family. “So, if I understand correctly, if this jury did everything you have suggested in your life care plan, there would not be an award of a single penny for the frustration, embarrassment and anger my client experiences on a daily basis because his legs are paralyzed.” The same is true for the fact that this adult man has no control of his bowel and bladder. Just because the defense calls a witness to address one specific area of the defense to your case doesn’t mean that you can’t take that person to a better place. These are ways to turn a negative into a positive, which is the recipe for a victory at trial or anywhere else.

Do not despair over the recent losses. If you spend the time proving serious catastrophic damages, then you can win.