IMPORTANT ASSIGNMENT 4

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Civil Procedure & Trial Practice

Chapter 6

LEARNING OBJECTIVES

Discuss the pretrial discovery process.

Describe the trial process.

Explain the purpose of the judge’s charge to the jury.

Describe the types of damages and how they are awarded.

Discuss the appeals process and execution of judgments.

Pleadings

Written statements of fact & law filed with a court by the parties to a lawsuit.

Generally include:

Complaint

Demurrer

Counterclaim

answer

bill of particulars

Pleadings - II

Parties to a Lawsuit

Plaintiff: person who initiates filing a complaint.

Defendant: person against whom a lawsuit is brought.

Summons

Legal document issued by a court and served on an individual announcing a legal proceeding has been commenced.

Provides date & place where the defendant must appear to respond to and answer the complaint.

Note: some jurisdictions, a complaint must accompany the summons (announcement to defendant that legal action has been commenced).

Complaint

1st pleading in a lawsuit filed by the plaintiff(s)

Sets forth;

relevant allegations of fact that give rise to one or more legal causes of action &

damages requested.

Demurrer

Pleading filed by defendant[s] challenging legal sufficiency of a complaint.

Defendant claims evidence presented by the plaintiff is insufficient to sustain a lawsuit.

Answer

Defendant responds to the allegations in the complaint

statute of limitations has tolled

contributory negligence on part of plaintiff

obligation has been paid

general release was presented to the defendant

contract was illegal & therefore null & void

Answer - II

Complaint filed with court having jurisdiction

Copy provided to plaintiff[s] attorney.

Counterclaim

Generally filed with the answer

denying the plaintiff’s claims

Bill of Particulars

Request for written itemization of claims made

date & time of day negligence

where the alleged malpractice occurred

the act negligent alleged to have occurred

how the alleged the negligence occurred

listing of injuries claimed

listing of any witnesses alleged malpractice

Discovery

Process of investigating facts of a case before trial.

Discovery rules promulgated to prevent trial by ambush.

Parties to a lawsuit have a right to discovery & to examine witnesses before trial.

Discovery – II Objectives

Obtain evidence that might not be obtainable at time of trial.

Isolate & narrow issues for trial;

Gather knowledge of the existence of additional evidence that may be admissible at trial.

Obtain leads to enable discovering party to gather further evidence.

Attorney-Client Privilege

Confidential communications made by a client & his attorney.

Elements Needed to Establish Attorney-Client Privilege

Both parties must agree that the attorney-client relationship does or will exist.

Client must seek advice from an attorney in his or her capacity as a legal advisor.

Communication between attorney & client must be identified to be confidential.

Incident Reports

not generally protected from discovery

Statistical Data – Not Always Privileged

Case Example: Braverman, in Braverman v. Columbia Hospital, Inc.

Examination Before Trial

EBT may reveal sufficient facts discouraging plaintiff from continuing the case or encourage parties to settle the case.

A deposition, taken at an EBT, is the testimony of a witness that has been recorded in a written format.

Preparation of Witnesses

Review records

Do not be antagonistic

Be organized in:

thinking

recollection of facts

Answer “only” questions asked

Explain simply, succinctly

Preparation of Witnesses – II

Do not over-dramatize

Do not become over-powered by cross-examiner

Be polite, sincere, & courteous

Dress appropriately

Be well groomed

Listen for objections

Preparation of Witnesses – III

Review your EBT before trial

Be honest with examiner

Do not show displeasure

Ask for questions to be repeated for clarification

Not sure of answer – indicate you are not sure

Pre-Trial Motions

Motion to Dismiss a case

Defendant alleges plaintiff‘s complaint does not set forth a claim or cause of action recognized by law.

Motion for Summary Judgment

Either party to a suit may believe that there are no triable issues of fact & only issues of law to be decided.

In such event, either party may make a motion for summary judgment.

Pre-Trial Conference

May be ordered at the judge’s initiative or parties to a lawsuit.

Eliminate matters not in dispute.

Parties agree on the issues, and settle procedural matters prior to trial.

Cases can be settled outside the courtroom.

Notice of Trial

Once a decision to go forward is reached, the case is placed on a court calendar.

Memorandum of Law (Trial Briefs)

Presents to the court nature of the case, cites case decisions to substantiate arguments.

Aids the court regarding points of law.

Trial briefs prepared by both plaintiff/s and the defendant/s attorneys.

A trial brief is not always required, but is a recommended strategy.

Judge

Handles conduct of trial

Decides questions of law

Determines issues of procedure

Decides if evidence admissible

Charges the jury

May direct a verdict

Jury

Selected from jury list

Determines issues of fact

Determines damages, if any

Jury Selection Process

Counsel for both parties to a lawsuit questions each prospective jury member for impartiality, bias, and prejudicial thinking.

This process is referred to as the voir dire.

The defendant can waive the right to trial by jury.

Subpoena

A legal order requiring the appearance of a witness and/or the presentation of documents at a legal proceeding.

Types of Subpoenas

Subpoena ad testificandum

Subpoena for a witness

Subpoena duces tecm

Subpoena of records

Burden of Proof

Obligation of the plaintiff to persuade the jury regarding the truth of his or her case.

Res Ipsa Loquitur

The thing speaks for itself

Legal doctrine that shifts the burden of proof from the plaintiff to the defendant.

Res Ipsa Loquitur: Proof Required

Event causing injury – would not normally have occurred in the absence of negligence

Defendant – must have exclusive control over instrument causing injury

Plaintiff – must not have contributed to the event causing injury.

Case: Wrong Medication

Stanley refills his drug prescription at Discount Drugs.

Prior to taking his nightly dosage he noticed the pills appeared larger than normal.

He phoned Discount Drugs & explained his concern.

The Pharmacist, stating he was busy, assured Stanley generic drugs sometimes are larger & the medication was correct.

Case: Wrong Medication - II

Stanley took the drug & never woke up; the dosage given was five times that prescribed.

The pharmacist filled Stanley’s prescription from the wrong container.

Is the pharmacy liable for Stanley’s death?

Yes

The plaintiff, Stanley, need not prove conclusively that the defendant-pharmacist’s negligence resulted in injury, only that all reasonably probable causes of the accident can be traced to the defendant.

See res ipsa loquitur above.

Opening Statements

Plaintiff's attorney: provides, in capsule form, the facts of the case, what he or she intends to prove by means of a summary of the evidence to be presented, and a description of the damages to his or her client.

Defense attorney: explains the facts as they apply to the case for the defendant.

Examination of Witnesses

Following opening statements, the judge calls for the plaintiff’s witnesses.

Preliminary Questions for Physician Witness

Please state your name, residence, and any prior residences.

Where did you attend medical school?

Are you licensed in this state?

Where did you serve your residency?

Describe the treatment you rendered? ∙∙∙

EVIDENCE

Evidence consists of the facts proved or disproved during a lawsuit.

Law of evidence is a body of rules under which facts are proved.

Rules of evidence govern the admission of items of proof in a lawsuit.

Direct Evidence

Evidence offered through direct testimony.

Statutory

Violation of a statute may constitute direct evidence of negligence

Policy and Procedure violations can be offered as direct evidence

Judicial Notice Rule

Well-known facts universally recognized as truth without need for evidence.

Need for a CT scan or MRI, as a diagnostic tool to diagnose a suspected skull fracture, can be considered a matter of common knowledge.

A court, in the absence of expert testimony, can take judicial notice that such evidence is within the realm of common knowledge..

Expert Testimony

Some fact-finding involve subjects beyond a jury’s knowledge, therefore:

Expert witnesses can be called on to submit an opinion.

Conflicting opinions by experts

jury determines which expert opinion provides most reasonable & compelling evidence.

Demonstrative Evidence

Proof furnished by things themselves

tangible objects to which testimony refers

e.g., medical supplies, instruments, equipment, photos, x-ray films, pathology slides, fetal monitoring strips …

Documentary Evidence

Medical Records

Facebook Entries & E-mails

Entering Records into Evidence

Original documents preferred

Hearsay Evidence

Written or oral statements

Based on what another has said or done & is not result of personal knowledge of the witness.

Hearsay is generally objectionable

Exceptions to hearsay rule

Threats made by the victim

Dying Declarations

Defenses to a Lawsuit

Ignorance of Fact & Unintentional Wrongs

Assumption of a risk

Contributory Negligence

Comparative Negligence

Good Samaritan Statutes

Defenses to a Lawsuit - II

Borrowed Servant Doctrine

Captain of the Ship Doctrine

Statute of Limitations

Sovereign Immunity

Intervening Cause

Ignorance of Fact Untentional Wrongs

Ignorance of the law or unintentional wrongs are not a defense

If such a defense were acceptable, all defendants would use it.

Assumption of a Risk

Knowing a danger exists & voluntarily accepting the risk by exposing oneself to it

1. Plaintiff must know & understand the risk that is being incurred.

2. Choice to incur the risk must be free & voluntary.

Example

Smoking can be hazardous to your health

Contributory Negligence

Occurs when a person does not exercise reasonable care for his or her own safety.

Defendant must show the plaintiff’s conduct fell below reasonable standard of care necessary to prevent a risk of harm.

Comparative Negligence

Provides degree of negligence or carelessness of each party to a lawsuit must be established by finder of fact & that each party then is responsible for his or her proportional share of any damages awarded.

Good Samaritan Statutes

Relieves healthcare professionalsin some instances, laypersons, from liability in certain emergency situations.

Encourages healthcare professionals to render assistance at the scene of emergencies.

Under most statutes

immunity is granted only during an emergency.

Borrowed Servant Doctrine

Applies when an employer lends an employee to another for a particular employment.

for example, a nurse employed by a hospital can be considered the employee of the physician when assisting during surgery & following physician orders.

Captain of the Ship Doctrine

Historically, under this doctrine, the surgeon was viewed as being the one in command in the OR

Surgeons do not always have the right to control all persons within the operating room.

Assignment of liability based on theory of who had actual control over patient more realistically reflects actual relationship that exists in a modern operating room.

Statute of Limitations

Legislatively imposed time constraints that restrict period of time after occurrence of an injury during which a legal action must be commenced.

Statute of Limitations - II

Computation of when the statute runs varies between states based on:

date the physician terminated treatment

time of wrongful act

time when the patient should have reasonably discovered injury

date injury was discovered,

date when contract between patient & physician ended

Sovereign Immunity

Legal doctrine by which federal and state governments historically have been immune from liability for harm suffered from the tortious conduct of government employees.

For the most part, both federal and state governments have abolished sovereign immunity.

Superseding Intervening Cause

An unforeseeable force coming into being after defendant’s negligent act, which cancels the defendant’s liability by breaking the chain of causation from the defendant’s act to the plaintiff’s injury.

Such an act destroys the casual connection between the negligent act of the defendant & the injury.

Damages are not recoverable because the original act is not the probable cause of plaintiff’s injury.

Case: Intervening Cause Lighting Strikes

Mary underwent surgery at General Hospital.

The power grid in the northeast shut down & the hospital’s emergency generator came on line.

Lighting struck the generator & the OR lights went out.

The surgeon cut an artery while completing Mary’s surgery under difficult circumstances.

Mary suffered serious injuries.

Mary sues the surgeon.

Will Mary succeed in her lawsuit?

NO!

There was a Superseding Intervening Cause.

It was unforeseeable that the power grid in the NE would shut down & lighting would strike the generator.

Foreseeable Intervening Causes

Those subsequent forces which:

objectively speaking, one should reasonably anticipate, or

those the defendant should reasonably anticipate under the circumstances.

Fall from ED Stretcher

Mindy, while transporting Jen to a minor treatment room, negligently pushes Jen’s stretcher thru corridors, injuring her foot.

While being operating on for foot injuries, Mindy miscarriages.

Is the hospital liable for Jen’s miscarriage?

YES!

There was a Foreseeable Intervening Cause.

Mindy, the negligent defendant, is liable for intervening acts as long as they are foreseeable.

Bottle of Pills

Mary was visiting her son Tom in the hospital.

She noticed a bottle of pills on Tom’s over bed table.

She intended to ask the nurse about the pills but forgot, since she received a call from work on her cell phone and had to leave.

She told Tommy she would be right back as she rushed out the door.

Tom finds the pills & swallows them, making him seriously ill.

Is the nurse & hospital responsible for Tom’s injuries?

Yes & No – I

Yes. It is foreseeable that if a nurse leaves pills on a child’s bed table that the child may swallow them. The hospital is liable on the basis of respondeat superior.

No. Although the result and the cause are foreseeable, there is an independent intervening event – mom’s discovery – which relieves the nurse of responsibility, due to the mother’s heightened ethical duty to protect her son.

Discuss

Defense counsel argues:

Intervening Cause

Contributory Negligence: mother?

Comparative Negligence: mother?

Plaintiff’s counsel argues

Hospital & nurse had a duty greater than the mother

Yes & No – III Discuss

This case is a perfect example of why there is a need for a trial.

The jury determines the facts.

The judge decides questions of law.

A verdict needs to be reached.

Post Verdict: there will always be someone unhappy with the outcome.

End of Trial

Closing Statements

Judge’s Charge to Jury

Jury Deliberation & Decision

Awarding Damages

Forms of Damages

Nominal: A token in recognition that a wrong has been committed. In such cases, the amount of compensation is insignificant.

Compensatory: Intended as reparation for detriment or injury sustained.

Hedonic: Awarded to compensate plaintiff for loss of enjoyment of life.

Punitive: Additional monetary awards when an injury is caused by gross carelessness or disregard for others' safety.

Text Cases: Damages

Future pain & suffering

Punitive

Emotional distress

Damages Not excessive

Damages Excessive

Damages Capped

Joint & Several Liability

Joint liability permits defendant to bring suit against all persons sharing responsibility for injuries.

Several Liability any one of the defendants to a lawsuit can be responsible to pay the full cost of damages awarded to the plaintiff/s.

Grounds for Appeals

Verdict excessive

Evidence rejected should have been accepted

Inadmissible evidence permitted

Execution of Judgments

Follows after all appeals have been exhausted!

REVIEW QUESTIONS – I

Describe trial process, including pretrial motions & the functions of the judge, jury, & attorneys.

Describe the kinds of evidence that a plaintiff can present in order to establish a negligent act.

What defenses can a defendant present in order to refute a plaintiff's evidence?

How does statute of limitations favor defendants?

Describe the differences between nominal, compensatory, hedonic, & punitive damages.