Doctors Start a Malpractice Trial in the Lead

I always like to read what medical malpractice defense lawyers are telling each other about how to defend a medical malpractice case. I foundmed mal this paragraph today in an article discussing defending medical doctors:

This changed image probably explains why defendant physician usually views the prospect of a jury trial with a real fear that some or all of the jurors will be prejudiced against him. Doctors frequently ask if it wouldn’t be better to have the case tried by a judge; their reading of popular articles has convinced them that when they go to court the atmosphere will be unfavorable…. It is important, however, that neither the defendant physician nor his lawyer be deceived by the more extreme views of emotional writers who suggest that the medical profession has become a sort of litigation target, and that doctors and hospitals have been made the villains in these modern day courtroom dramas. Both doctor and lawyer must dispel from their minds any notion that the defendant physician has initial hurdles to clear somehow before he has any chance of winning his case. The reverse is true. On balance, the jury will start the case with some sympathy for the defendant physician, and this will be maintained right into the jury room, unless it is somehow lost or dispelled by the evidence and the witnesses.

The Malpractice Tort Reform Argument is Gutted

This is such a tacit admission that so much of the arguments supports medical malpractice tort reform which is utter nonsense.  The game is and always has been slanted towards the doctor. The article makes this even more crystal clear:

Experienced lawyers know that the physician or surgeon probably comes in to any jury case with a head start (my emphasis).  The average citizen who sits on a jury will be more favorably inclined toward the defendant doctor, and generally toward a hospital defendant, than toward the person who has taken it upon himself to bring the suit. This important asset in a jury trial should never be overlooked, lest it be lost through ignorance or careless handling.
Reasons for this basic sympathy for the defendant doctor are not hard to find. The typical juror will feel that he has owed his life, on some occasion, to a doctor’s care. The average parent would still be proud to have his son be a doctor. These factors of jury sympathy will favor defendant doctors as long as the medical profession cares for the sick and injured.
This is all true and I’m not even mad about it.  It is not the worst thing that we like and respect doctors.  It is not the worst thing that they have this “head start” when a case begins.  If I’m taking a case, I believe we will present the facts to get us past the doctor’s advantage.  We turn down so many jump ball cases where we think the doctor did something wrong but we just do not believe we are going to have a chance of proving it.  Juries always decide jump balls for the doctors absent some compelling circumstances.
So fine.  But do we really have to hear the doctors lobbyists’ crying to the Maryland legislature every year about “jackpot justice” and all of that nonsense?   This article makes clear that the truth is we are only going to get doctors who muck up pretty bad.  The close calls go to the doctors.  Yet they demand — and have gotten — special tort laws and caps on damages that apply just to medical malpractice cases.

Is a Malpractice Trial a Criminal Trial?

It is always hard to make jurors understand that the burden of proof is the preponderance of the evidence.   That “beyond a reasonable doubt” thing always sticks in jurors minds, because many jurors have committed all 456 Law & Order episodes to memory.   So the defense lawyer really wants to play up how serious these allegations are to liken them to a criminal trial which takes jurors to beyond a reasonable doubt:
The underlying regard that an American jury typically has for the defendant doctor in a malpractice case has sometimes been likened to the jury’s basic sympathy for the defendant in a criminal case. Despite the attempts of plaintiff’s attorney to talk around it, the fact will remain that the defendant physician is faced with a grave charge that he injured his patient by an act of professional incompetence. In the mind of the average juror, such an act is criminal, and frequently a juror will be as reluctant to hold a doctor guilty of such a crime, as he would be to find against the defendant in a criminal prosecution. The average layman has great difficulty in understanding the distinction between a criminal case and a civil case. To him they are all part of the same general process, and the important questions are, “What’s the charge?” and “Is he guilty?”
“Despite the attempts of plaintiff’s attorney to talk around it…”  I love this line.  Like telling jurors to follow the law is talking around it.
Winning a malpractice case is hard even when you have the facts on your side.  This lawyer is telling his defense lawyer brothers in arms just that.