Page 55 - Anatomy of a Medical Malpractice Lawsuit

SVMIC Anatomy of a Medical Malpractice Lawsuit

Once all of their client’s proof has been presented, the

plaintiff’s attorney will announce to the court that they rest
their case which means the plaintiff’s case-in-chief is

concluded. At this point, the defense attorney may announce

to the court that the defendant moves to dismiss the lawsuit
with prejudice. This is a substantive motion on the merits

whereby the defendant is asking the trial judge, who has heard

all of the evidence, to determine that the plaintiff has failed to
meet his or her burden of proof and the malpractice suit

should be dismissed in the physician’s favor. In a small
percentage of cases that go to trial, the plaintiff’s attorney fails

to establish one of the requisite elements of the plaintiff’s case
and the court grants the defense’s motion to dismiss the

lawsuit before it is submitted to the jury. With prejudice means

that the lawsuit cannot be re-filed. If the motion is not granted,
the trial proceeds to the next phase which is the defendant’s

evidence.

Defendant’s Evidence

After days or even weeks of hearing only from the plaintiff and

the plaintiff’s witnesses, the jury finally gets to hear from the
defendant. Witnesses may be called in any order, but likely the

defense attorney will call the defendant to testify as the first
witness to describe the circumstances presented by the

patient, the reason(s) for the physician’s decision-making and
care, and to establish credibility. Because this is direct

examination, the defense attorney will not be permitted to ask

leading questions (those that suggest an answer). The
physician will be able to tell his/her version in a logical, story-

like fashion.

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