Public Health Law Map - Beta 5 - Medical and Public Health Law Site

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VI. The Litigation Process
HIGHLIGHTS
Introduction
Criminal investigations are done before the defendants know they are targets.
Civil investigations are usually done after the case is filed and the defendant is
notified.
Legal privilege for communications and records must be protected at all times—
once lost, it cannot be regained.
Courts and juries do not understand scientific evidence.
Understanding how trials work can help medical care practitioners cope with the
stress of litigation.
Only lawyers love litigation. For the parties, especially the defendant, it can be terrifying
and incomprehensible. Understanding how civil litigation works can defuse some
litigation anxiety and can help plaintiffs and defendants be better partners in their own
cases. For defendants, this can save their life: several physicians have committed suicide
as a result of depression over medical malpractice litigation. For plaintiffs, and medical
care practitioners are increasingly being forced to become plaintiffs to protect their own
rights, it is critical to understand the limitations of litigation and the risks, both economic
and psychological.
To the untutored observer, civil and criminal litigation seem very similar. In many
jurisdictions, including the federal courts, they are tried in the same courtrooms by the
same judges. They both have juries and the basic rules of procedure and evidence are
similar. There are profound differences, however, that derive from the extra
constitutional protections afforded criminal defendants. This section will use civil
litigation as a model and will discuss the differences with criminal litigation as they
arise.
Movies and television give the impression that trials move quickly and are interesting;
the testimony of witnesses is fast-paced and stimulating; and, most deceptively, that the
trial quickly follows the crime or accident precipitating it. In real life, trials are tedious,
emotionally draining, and generally bewildering to plaintiffs and defendants alike.
Medical care practitioners should understand how trials are conducted and the basic
standards for the admission of evidence. This will help them make decisions about when
it is appropriate to go to trial. More important, by understanding how evidence is
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