Page 53 - Anatomy of a Medical Malpractice Lawsuit

SVMIC Anatomy of a Medical Malpractice Lawsuit

physician’s proof will show – basically, that the defense will be

able to refute the plaintiff’s claims.

Plaintiff’s Evidence

During the plaintiff’s case-in-chief, the attorney may call his or
her witnesses in any order he or she feels is advantageous. In

most cases, the first witness will be the plaintiff who is either

the patient or in the event the patient is deceased or
incapacitated, the spouse, parent or other relative. Plaintiffs’

attorneys tactically want the jury’s first impression during the
proof stage to be the injured party. The purpose of this is to

play on the jurors’ emotions by garnering sympathy.

Occasionally, the plaintiff’s attorney will call the defendant

physician as part of the plaintiff’s case-in-chief. This is a
strategy that seldom works effectively for two reasons: one, it

allows the jury to hear from the physician at the outset, and
two, it can in most states permit the defense attorney to ask

his own client leading questions during the plaintiff’s case-in-
chief.

Attorneys are limited on direct examination to asking open-

ended questions. They are normally not permitted to ask
leading questions (those which might suggest the answer to

the witness). On cross-examination, however, opposing

counsel is permitted to ask leading questions. By calling the
physician as a witness in connection with his or her direct

proof, the plaintiff’s attorney effectively reverses the roles

allowing the defense counsel to cross-examine his own client
thereby presenting the physician’s testimony in the most

favorable manner possible. Although it is unlikely to happen,

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