Until you have been involved in a medical negligence suit, you probably will not appreciate how time consuming, expensive, and difficult they usually are. This is intended only as the most general overview of what these suits entail and is based generally on the laws and procedures in Pennsylvania, where the authors practice.

In Part I, we discussed pre-suit matters and pleadings.

Discovery

The “discovery” stage is then underway. The three primary discovery (investigatory) methods are requests for documents, interrogatories (written questions requiring written responses under oath), and depositions (oral questions offered by the parties' attorneys before a court reporter). The first and last are probably the most important. Full and complete records lay the groundwork for a case, and depositions often are not fully prepared for by the deponent and allow best for “truth testing.”

The law recognizes limitations on discovery, and a party, rather than answer, may object, usually claiming either that the requested information is not relevant to the case, or is protected by some privilege. At that point, if the parties cannot reach agreement, and rarely can they, the dispute must go to a judge for resolution. This investigation may make or break a case.

As that portion of discovery winds down, the parties will have to exchange expert information. Some jurisdictions require reports and resumes, and others permit expert depositions. Since the claim relates to medical negligence, the law requires that plaintiff's case be supported by expert medical testimony in all but an infinitesimally small number of cases. This is because in medical science, only a medical practitioner can establish what was the appropriate care to be provided under the facts of the claim at the time of the events, and only a doctor is trained on the issue of what can be caused by inappropriate care.

Just as the pleadings limit the scope of the case, typically at trial an expert may not wander from the theories of liability or defense that have been set out in the report or deposition. The attempt to insert new liability or defense theories from the witness stand at trial will be shot down upon objections. The opposing party simply will not have had an opportunity to prepare for this in advance and should not be surprised at trial.

Prior to trial it is common for the defense to file a motion for summary judgment setting forth legal reasons that the court should throw out some or all of plaintiff's case. The court's approach is to accept as true all factual allegations of the plaintiff so long as they are supported by some evidence adduced during the discovery process, to accept plaintiff's expert opinions so long as they fall within the scope of that which was pleaded, and then decide if there is no way a jury could find in plaintiff's favor, or if it is clear that the plaintiff has failed to assert a claim recognized at law. For instance, the evidence made available during discovery may show a named defendant was not responsible for some asserted error, and that defendant would prevail in a motion for summary judgment.

Trial of a “short” and less complicated medical negligence case will usually take a few days. Very commonly, these case take a week or two in part because often scheduling numerous experts' testimony is difficult. Plaintiff puts on its evidence and witnesses first. The defense initially has no burden of proof. If plaintiff's evidence in legally insufficient to make out a case against a particular defendant, upon the close of plaintiff's case that defendant might be dismissed from the case upon appropriate motion. The defense then puts on its evidence contradicting plaintiff's version and in support of its own “affirmative” defenses. Once the defendants rest their cases, the plaintiff may introduce rebuttal evidence which is limited to responding to the claims of the affirmative defenses.

The jury (or judge) will have to decide who, if anyone, was negligent, whether the negligence caused any harm and to what degree the negligence of each careless defendant (or careless plaintiff) contributed to the harm, and the amount of damages to be awarded. This certainly is not an easy task as the jury will have to review days and days of testimony, much of it technical medicine and therefore both unfamiliar and at times contradictory, determine which witnesses are telling the truth or have better memory, and what weight to assign to evidence. Where the case involves multiple defendants, this can be very difficult.

Keep in mind this is a very general overview. Each jurisdiction has its own body of court rules dictating procedures, and its own body of statutes and court decisions controlling the substance of medical malpractice law. Because of this, what is permissible procedure in one state may not be in another. What is good law some places may not apply elsewhere. Some states put a cap on pain and suffering damages and others do not. Some states recognize certain liability theories that others do not. Because of this, it is most important that parties be represented only by attorneys with experience in this field of law in the locale in which it is to be tried.