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The 15 medical malpractice cases in the Top 100 jury verdicts of 2003 were a mixed bag of tragedies that may (or may not) have been affected by efforts to limit tort rights. The verdicts totaled $545.5 million. While that is a robust sum, it is nearly $178.6 million less than in the previous year's top verdicts, even though 2003 had two additional cases. Some attorneys and med-mal experts contend that trend-spotting is a pointless parlor game leading to faulty conclusions. Verdicts are fact-driven, they say. Others see shrinking verdicts and blame "tort reform," which, they say, includes damage caps in 27 states and indirectly affects juries everywhere.
Expert witnesses have become a necessity in virtually all litigation, from medical malpractice to products liability to family law cases. Technical understanding of disputes is required for juror determination in this increasingly technical world. Damages need to be calculated using expert data; professional standards and their application to any medical malpractice action require expert opinion. But what happens when the side hiring the expert loses, or the independent evaluation doesn't come up with the hoped-for answer? Increasingly, what happens is the disappointed party sues the expert. In some cases, the experts have immunity to lawsuit, but in an increasing number of instances, they simply do not.
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Last month, we discussed tactical considerations when challenging expert witnesses' qualifications. This month, we focus on the optimal time to conduct <i>voir dire</i>.
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National news of interest to you and your practice.
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A 70-year-old man was admitted to the hospital for a bowel resection. Following surgery, the patient's condition worsened considerably; He spent months in the ICU on a ventilator, was fed through a gastrostomy tube, and his mental status waned. After some time, it was suspected that his deteriorating condition might be related to sepsis from a bowel perforation. Subsequent surgery confirmed this diagnosis. Attempts to repair the perforation failed, and, ultimately the patient died. Medicare paid the patient's medical bills, which exceeded $500,000. The patient's family commenced a lawsuit, alleging that the surgeon's negligence caused the bowel perforation. During the litigation, the Medicare Trust Fund sent a correspondence to the patient's estate, asserting a claim of reimbursement for the benefits Medicare paid from any recovery that the estate might obtain.
A roundup of news items that may affect your practice.
<i>Voir dire</i>, or a preliminary cross-examination that takes place prior to the direct examination of an opposing expert's qualifications, is a useful, often under-appreciated, tool to preclude, limit, or discredit expert testimony. We addresses only evidentiary <i>voir dire</i> in this article, not <i>Daubert/Frye</i> hearings regarding the admissibility of scientific evidence.