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Bifurcating Medical Malpractice Cases
A classic medical malpractice trial generally conjures up images of strategic trial lawyers, sympathetic plaintiffs, and zealous expert witnesses all culminating in one statement from the jury regarding both liability and damages. This vision — one of a unitary trial — contrasts starkly with a device of civil procedure called a bifurcated trial. One of the primary methods of bifurcating a trial is to separate the liability phase from the damages phase. Though widely utilized in other civil cases, bifurcation is seldom requested — or granted — in medical malpractice cases. Hoffman DN, Nichols JR: Bifurcation of Medical Malpractice Trials. 70-APR N.Y. St. B. J. 38, 38 (1998). What is the current state of the law and its application to medical malpractice cases, and what are some practical considerations that may factor into the decision whether to seek bifurcation?
The Law Today
Federal courts, and most of their state counterparts, possess the authority to bifurcate the liability and damages phases of civil trials. Federal Rule of Civil Procedure 42(b) states: “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of … any separate issue.” Fed. R. Civ. P. 42(b) (2005). Further, the decision whether to bifurcate a case is entrusted to the “sound discretion of the trial court.” Getty Petroleum Corp. v. Island Transp. Corp., 862 F.2d 10, 15 (2d Cir. 1988). Accordingly, the trial court has “virtually unlimited freedom” to manage the cases before it in a manner that enhances convenience, fairness, and judicial economy. Wright CA, Miller AR: Federal Practice and Procedure ' 2388 (2d ed. 1995) (hereinafter Wright and Miller). Despite this authority, courts seemingly operate under a presumption against bifurcation. See Fed. R. Civ. P. 42 advisory committee's comment (opining that “separation of issues for trial is not to be routinely ordered”); Gensler SS: Bifurcation Unbound, 75 Wash. L. Rev. 705, 721 (2000).
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