Linda Fermoyle Rice
Evidentiary issues in medical-malpractice cases Medical negligence has unique evidentiary issues. Knowing where the minefields are located is a first step toward ensuring your evidence will be admissible
[Ed. Note: This article was presented at the 2011 CAALA Annual Las Vegas Convention.]
Litigating a medical-malpractice case
poses many challenges: evaluating the merits of a potential case; the cost and risk of working up the case for trial; the need for effective experts; the ability to articulate complex issues clearly; and the limitations on damages and attorneys’ fees, to name a few. Fortunately, for those intrepid enough to venture into this field, the applicable law is not one of these challenges. It tracks basic negli- gence concepts: the duty of the profes- sional to use such skill, knowledge and care as other members of his profession commonly possess and exercise, breach of that duty, causation, and damages.
48 — The Advocate Magazine FEBRUARY 2012 Once trial starts, however, getting
the evidence needed before the jury may be more complicated than might have been anticipated. It is certainly worth the time and effort to consider what eviden- tiary issues may be lurking well in advance of jury selection. There are also evidentiary issues, before and at trial, which are unique to medical-negligence cases. This article will highlight some of those issues and provide analysis which may be useful in planning your case, overcoming objections, and getting the evidence you need to the jury.
Evidentiary issues unique to medical- malpractice cases generally
•The MICRA cap – is it admissible? The Medical Injury Compensation Reform Act [“MICRA”] caps non-
economic damages at $250,000. (Civ. Code, § 3333.2(b).) This is the law and, as such, it might be anticipated that the jury would be instructed accordingly. However, neither the BAJI nor CACI instructions contain such a jury instruc- tion and most trial courts are reluctant to tell the jury about the MICRA cap. If plaintiff ’s counsel would like to
have the jury instructed about the cap, there are good arguments in support of that position. Code of Civil Procedure section 608 states that “[i]n charging the jury the Court may state to them all mat- ters of law which it thinks necessary for their information in giving their ver- dict...” In a case involving a serious injury or death, a jury that is not informed of the cap may spend hours or
See Evidentiary, Page 50
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