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What is a Medical Malpractice Trial Like?

by  |  Physician Practices

Few things in life are more emotionally taxing for physicians than being accused of misconduct. Sometimes, this takes place through a medical malpractice lawsuit. They can make physicians question their qualifications, future professional lives, and shake them to their core. Although physicians are highly intelligent, they may be unaware of what a medical malpractice lawsuit can look like. Knowledge is power, and it can help reduce some of the anxiety from a very anxiety-ridden time. Here is what you can expect from a medical malpractice trial.

Steps in a Medical Malpractice Trial

The good news is that most medical malpractice lawsuits in the United States are either dismissed or settled. Only about 10 percent go to trial. 

Dismissal occurs when the court finds that there is some reason that the case does not deserve to go to trial. Reasons can vary, including improper service of process, incorrect jurisdiction, or insufficient evidence at that stage of the pleadings. 

A settlement can occur at any point before the jury delivers their verdict, even if the jury is in the middle of their deliberation. Many times, settlements will happen before much litigation has occurred. This is because litigation is associated with significant expenses, and if both sides have an idea of how the case will go, they can avoid lengthy litigation and associated expenses if they settle. Each side will strive to see how the jury might be leaning and seek to understand who has the better case. Then, the parties come together and discuss a number to resolve the case. A settlement means that one side gives the other side money in exchange for not having the jury determine if there is liability and the extent of damages.

If you are one of the ten percent who go to trial, this is what you can expect:

Jury Selection

If you have not been to a trial before, you may not understand the importance of the first step of the trial: jury selection. It is not as simple as finding people to fill the seats. Rather, it can be a pretty extensive process to find individuals who will be truly impartial to hear the case and make a decision. Attorneys will go through what is called a “voir dire” process, where each potential juror is asked various questions to see if they are going to be biased toward the plaintiff or defendant. Each counsel can get rid of a certain number of jurors. From there, the jury is selected, with a set number of alternates in the event that members of the original jury cannot fulfill their duties.

Opening Statements

Both sides will speak to the jury and present an abbreviated version of their case. The plaintiff goes first, and the defendant goes second. The plaintiff will describe the event and what effect the alleged lack of care had on their client, trying to evoke sympathy for their client off the bat. They will then preview who the jury will hear from. The defendant will take a different approach and will focus on how the physician actually did not deviate from the standard of care. They will discuss the medical issues and facts. Finally, they will emphasize that even if the plaintiff suffered an injury, this does not mean that a physician deviated from the standard of care.

Plaintiff Presents Case

This will likely be the hardest part of the trial for you because you, at this point, cannot say anything to refute what is being said. An effective counsel for the plaintiff will paint you as incompetent, unfeeling, and a bad physician–all things that you are not. It can be difficult to deal with emotionally. 

The plaintiff will seek to show that you did not meet the standard of care. They will present testimony from physicians who will testify that they would have treated the patient differently or give an opinion that you failed in some way. However, your counsel will have the opportunity to cross-examine the witness. This means that they point out inconsistencies or cast doubt on what is being said.

Defendant Presents Case

Next, it’s your attorney’s turn to defend you. Your attorney will call experts of your own, who can also be cross-examined by the other side. You and your attorney will make a decision about whether you testify in your own defense. If so, your attorney will work to prepare you for this portion.

Closing Statements

This is each side’s “last shot” to win over the jury. The plaintiff’s counsel will reiterate how terrible the injuries their client suffered were and how it was your fault. Then, the defendant’s counsel will point out the flaws in the plaintiff’s case and make the argument that you did meet the standard of care. The plaintiff has time for what is called a rebuttal, which is where they are able to “rebut” or argue against what the defense has just argued. 

Jury Instructions

At this point, there are no more arguments presented to the jury. The judge will then turn to the jury, telling them to think about what they have heard and arrive at a verdict based on instructions. The jury will be reminded to be impartial and to only consider testimony that was given under oath. Additionally, the jury will be told about the elements of the cause of action to find you guilty and instructed on how to determine whether the plaintiff’s attorney proved those elements or not. 

Jury Deliberation

Afterward, the jury will deliberate. There is no timetable for exactly how long a jury will take to deliberate. Sometimes, the verdict can come quickly. Other times–especially if it is not a clear case or has very technical aspects to it–the jury can take longer to decide. 


This is where the jury will let the court know whether it thinks that you breached the standard of care and whether there was a causal link to your patient’s injury. If so, then they will also assess damages.

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