We all know that a plaintiff's verdict in a medical malpractice
comes around as frequently as a lunar eclipse. Due to the
difficulty of winning such cases, malpractice filings have declined
about 34 percent since 2000.1 The
tragic irony is that while malpractice lawsuits and plaintiff
verdicts become increasingly rare, there remains an epidemic of
medical errors that kill nearly 100,000 people per year and cost
society $29-$38 billion annually to care for those injured
through medical errors.2 The trial
system can serve a valuable role in bringing attention to and
remedying these errors, while alleviating the substantial financial
burdens incurred by the victims.
Unfortunately, due to a legal environment hostile to plaintiffs,
which includes lack of juror empathy, tort reform propaganda and
limited voir dire, too many victims are left out in the
cold. These impediments to justice are not likely to change soon.
So, like any threatened species, we plaintiff lawyers must adapt to
the present environment in order to survive and thrive.
My partner Lisa Arrowood and I recently received permission to
speak with the jury immediately after a verdict for our clients in
a medical malpractice case. That unique experience reinforced many
of the following concepts.
"Luck is the residue of design." -- Branch
Jurors are more informed and better educated than previous
generations. Trust them with authoritative information presented in
a professional way. We learned from our jury that, over five days
of deliberating, they thoroughly analyzed the expert testimony
and the medical literature to reach their verdict. Ask
your expert for the most authoritative textbooks regarding the
medical issues in the case (such as those used in medical school).
Learned treatises may carry as much weight as expert testimony.
The New England Journal of Medicine, in particular,
carries a lot of weight around these parts. The Social Law Library
is an excellent resource for articles written by the defendants or
defense experts that may contradict their anticipated testimony at
Also learn about the judge's preferences in the MBA's Guide
to Judicial Practice in the Superior Court of Massachusetts,
which contains many judges' responses to more than 50 questions on
such matters as voir dire, jury questions and admission of
"Everyone has a plan until they get punched in the
face." - Mike Tyson
One way to avoid a broken jaw is to draft motions in
limine and bench memos that anticipate the left hook. Expect
the unexpected and move to preclude expert testimony that's beyond
the scope of the expert disclosure and/or speculative. Move to
preclude the defense from using the plaintiff's presenting
condition (such as high cholesterol, high blood pressure or
excessive weight), and/or alleged lack of attentiveness to her
health as evidence of comparative negligence. The doctor takes each
patient as he finds her, and all such patients are entitled to
non-negligent medical treatment and an undiminished recovery. (This
is also an important jury instruction.)
Defendants file motions to prevent us from "sending a message to
the jury" during closing argument. Practice some "judo law" and
file one preventing the defendant from sending a message as well,
such as "Don't make it so doctors can't practice medicine" (a
hard-to-believe, real-life example). Prepare to strike the doctor's
self-serving testimony regarding her "custom and practice" in the
absence of foundation. The doctor must testify that she had (1) a
regular response, (2) to a repeated situation, (3) with a specific
type of conduct in order to establish she had a routine custom and
"Second that Emotion." - Smokey Robinson and the
The case we tried involved a tragic sudden death of a fine young
college student who left behind emotionally wrecked parents.
Appropriately, that was not what won the case for us. Resist the
urge to overplay the drama and stay one notch below the jury in
emotions. I often say in my opening that "This is an emotional
case, but we don't want you to decide it on emotions. We want you
to decide it on the medicine." This gives you credibility and
permission to bring out necessary emotional testimony later. We use
close family members and friends at trial to testify briefly about
the impact of the malpractice on the client. Jurors would rather
hear it from a witness than from your client, who may seem
On the flip side of emotions, be careful not to demonize the
doctor unless he or she deserves it. In our recent case, the
defendant doctor testified during her deposition that she left her
practice on "good terms." Afterward, we obtained her personnel
records that revealed she was terminated following a pattern of
"poor performance." At trial, my partner first gave her the
opportunity to correct her deposition testimony, which she
rebuffed, before crossing her heavily with the termination letter.
In closing, rather than suggesting that they should find the doctor
a liar, I asked the jury rhetorical questions about how
they thought that impacted her credibility. I find it is
often better to lead from behind than to tell jurors what to
"Never give in. Never give in ... Never give in." -
At the end of an exhausting trial, whether you sense victory or
defeat, keep Churchill's famous quote in mind. In the jury
instructions, you must argue against those that are inaccurate,
unfair and biased. We file a written opposition to the
defendant's instructions when they include inappropriate statements
such as doctors are allowed a "wide range" in their decision-making
process, or a doctor is not negligent if she relies on her "best
judgment." Such statements that suggest medicine is purely
subjective undermine the law, which is that there are accepted
standards of care to which all physicians are held.
Importantly, in your jury instructions emphasize the appropriate
standard for "substantial contributing cause," i.e. "something that
makes a difference in the result."5 I
shudder to think how many cases have been lost because the jury
thought "substantial" meant "very large."
Good trial attorneys are true believers in the ability of the
legal process to improve lives and remedy a terribly flawed health
care system. We should see the present environment as challenging
us to perform at an optimal level and to refine the art of our
trial advocacy. The jury, and our client, expects no less.
Jeffrey N. Catalano, Esq. is a partner at
Todd & Weld LLP, where he concentrates on medical malpractice
and personal injury law. He is secretary of the Massachusetts Bar
- 2008 statistics recently released by the Massachusetts
Administrative Office of the Trial Courts.
- VanGeest, Jonathan B., and Deborah S. Cummins, Ph.D., National
Patient Safety Foundation, An Educational Needs Assessment for
Improving Patient Safety.
- MBA "Guide to Judicial Practice in the Superior Court of
Massachusetts, 3rd ed. (2008).
- Palinkas v. Bennett, 416 Mass. 273, 277 (1993).
- O'Connor v. Raymark Industries, Inc., 401 Mass. 586, 589