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

were below the acceptable standard of care. This in itself is a morally loaded
accusation. The defendant’s justification for his or her behavior affects the level of
personal attack necessary for the plaintiff’s case.
The most important consideration in assessing the strategy in a medical malpractice
case is that physicians are held in high esteem in the community. Physicians win
most malpractice cases that are tried because of this community respect. If the
plaintiff maligns a physician whom the jury respects, the jury will be more difficult to
persuade on the factual issues of the case. Conversely, if the plaintiff can
successfully undermine the jury’s confidence in the defendant, the defendant will
suffer from the jury members’ implicit comparison with their idealized notion of
physicians.
These considerations also apply to attacks on the plaintiff. Attacks on the plaintiff’s
technical case can defeat the plaintiff entirely. Attacks on the plaintiff’s character can
reduce the potential damages in the case by lowering the value that the jury puts on
the plaintiff’s future earnings and so forth. Attacks on the plaintiff’s character, if
believed, can also reduce the credibility of the plaintiff’s expert witnesses. Although
the testimony of witnesses should be seen as independent of the character of the
plaintiff, if the plaintiff is not credible, it will be assumed that his or her witnesses
are not credible either. There are plaintiffs (and defendants) whose personalities
destroy their cases, irrespective of the underlying merits.
2. Surviving a Trial
The more a party knows about what is happening at the trial, the easier it is to stay
intellectually involved. An informed client, particularly a defendant in a medical
malpractice case, is also an asset to the attorney. The client can assist with the review
and organization of records, the evaluation of witnesses, the analysis of testimony,
and other tasks that require special knowledge of medicine or the facts of the case. In
addition to the advantage that this gives the physician’s attorney, it reduces the
anxiety associated with litigation by reducing the uncertainty.
Despite the salutary value of becoming a partner in their litigation, few physicians
involve themselves in the preparation of their cases. There are several reasons for
this lack of involvement. If the attorney is being paid by the insurance company, the
physician has no short-term financial incentive to assist in the case. The attorney will
hire the necessary personnel to prepare the case and bill the insurance carrier. Even
when physicians are paying their own legal bills, it is unusual for an attorney to
explain the potential benefits that might accrue if the client assists in the case.
Attorneys cannot completely control the progress of a case through the courts. For
example, an attorney may work diligently at setting the depositions in a case. If all
the witnesses are available, the case can proceed; if a witness is not available, it may
delay the case for months. Whenever an attorney files a motion with the court
requesting action from opposing counsel, the opposing counsel has 10 to 60 days to
reply. Ideally for the client, the attorney will push the case forward at every
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