CUSHNER & BLOOM, P.C.
BROOKLINE, MA 02446
Tel. (617) 608-0019
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Elements of a Medical Malpractice Trial
Medical Negligence
Under Massachusetts law, a physician or other health care provider is charged with possessing and exercising that reasonable degree of skill, care and learning ordinarily exercised by an average qualified physician or other health care provider in similar circumstances. Medical negligence is the failure of a responsible health care provider, either by action or omission, to exercise that degree of skill, care and learning under the particular circumstances.
Causation
The "
LEGAL CAUSE " of an injury is a cause which is a "substantial factor" in bringing about the injury. In determining whether the defendant's conduct was the "legal cause" of the plaintiff's damages, the jury determine whether the defendants' conduct had such asubstantial effect in producing the injury as would lead reasonable persons to regard it as
a cause. Causation is incapable of mathematical proof, since no person can say with
absolute certainty what would have occurred if the defendant had acted otherwise. Juries
are permitted to draw upon ordinary human experience as to the probabilities of the case.
The Jury's Role
In the trial of a medical malpractice case the jury hears the evidence
and
decides what the facts of the case are. In deciding the facts
of the case, the jury has to
decide which testimony to believe and which testimony not to believe.
The jury may
believe everything a witness says, or part of it, or none of it.
In considering the testimony
of any witness, the jury may take into account:
(1) the opportunity and ability of the witness
to see or hear or know the things
testified
to;
(2) the witness' memory;
(3) the witness' manner while testifying;
(4) the witness' interest in the outcome
of the case and any bias or prejudice;
(5) whether other evidence contradicted
the witness' testimony;
(6) the reasonableness of the witness'
testimony in light of all the evidence;
and
(7) any other factors that bear on believability.
The Plaintiff's Burden of Proof
The injured person who brings the law suit is called the "plaintiff."
A plaintiff may
(1) That the person being sued for causing the
accident, called the defendant,
A "preponderance of the evidence" simply means evidence that persuades
the jury that
In medical malpractice case, expert medical opinions are usually
mandatory to establish
Experts are permitted to testify because of their special training
in and knowledge of the
recover on his/her claim if he/she proves the following things,
by a "preponderance of the
evidence":
was negligent;
and
(2) That defendant's negligence was the "legal
cause" of the injuries and
monetary
losses that the plaintiff suffered.
the plaintiff's claim is more likely true than not. To put
it differently, if one were to put
plaintiff's and defendant's evidence on opposite sides of the scales,
plaintiff's evidence would make the scales tip slightly on the plaintiff's side.
Expert Medical Witnesses
that the defendant physician departed from good medical practice
and that such departure
was the legal cause of injury to the patient. Expert medical
witnesses' testimony on facts
and opinions is offered to the jury for guidance. Usually,
the physician will also present
a medical expert who renders the contrary opinion--that either the
defendant physician's
care was reasonable and appropriate or that anything that the physician
did or did not do
was not the legal cause of any harm to the patient, or both.
It is the jury's function to
determine the qualifications of the expert witnesses and the effect
of the witnesses'
testimony on their judgment of the case. If a jury person
believes the testimony of a
certain expert witness, then he or she may be guided in the ultimate
decisions on the
issues the expert covered.
field in which they are testifying. Generally, the rule is
that if a person has knowledge
and experience beyond that of the ordinary person in the community,
he/she can testify
not only as to facts but also as to his/her opinions. An opinion
is only as good as the facts
and reasons on which it is based. If a fact supporting an
opinion is not proven at trial, or
has been disproved, the jury must consider that in determining the
value of the opinion.
Likewise, the jury must consider the strengths and weaknesses of
the reasons on which it
is based.