The
Law the Jury Must Apply in Medical Malpractice Cases
At
the conclusion of the presentation of evidence in a medical
malpractice trial, the judge will read to the jury a set
of instructions that they must follow in deciding the
case. Included in those instructions will be the law as
it currently exists for medical malpractice cases.
The jury is instructed
that they must follow
the law as it is given
to them by the judge
even if they disagree
or do not like the
law. In fact, at the
beginning of the process
when the jury is initially
sworn in, each juror
swears an oath to
apply the law as it
is given to them by
the judge.
Prior to the judge
instructing the jury,
the judge holds what
is known as a jury
charge conference
with the attorneys
from both sides so
that each side can
submit jury charges
to the judge for what
they believe the law
states and which,
if read to the jury,
they believe will
be most beneficial
to their clients.
The judge reviews
the charges submitted
by both sides and
picks and chooses
which ones will present
the most accurate
and balanced statement
of the law to the
jury.
In addition to the
instructions regarding
the burden of proof
the patient has in
proving all aspects
of the case by a preponderance
of the evidence, the
jury in a medical
malpractice case is
usually instructed
with several other
general statements
of the law. One such
statement usually
given in a medical
malpractice law is
that an error in the
physician's judgment
does not mean malpractice
was committed. Another
instruction frequently
advocated by the defense
is that just because
another physician
would have done something
differently in the
care of the patient
does not mean that
the defendant physician
committed malpractice.
Instructions which
help the patient include
the statement that
the patient does not
have to prove with
certainty that the
patient's outcome
would have been better
if not for the malpractice,
but only that the
malpractice deprived
the patient of a chance
at a better recovery.
Moreover, since the
defense usually has
more witnesses who
will testify, a common
instruction given
is that the jury is
not to decide the
case by the shear
number of experts
one side presents,
but by the quality
and credibility of
the testimony presented.
Since the jury charge
conference is conducted
just before closing
arguments are made
to the jury, the lawyers
know what charges
will be read to the
jury and they can
emphasize the ones
favorable to them
in their closing argument.
