Here's what the jury saw

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John O'Connor, Editorial Director
John O'Connor, Editorial Director
Small fortunes are spent each year trying to figure out how juries reach their verdicts in malpractice cases.
Having just served on such a panel, I can probably offer some helpful insights. These may come in handy if your organization finds itself on the business end of a plaintiff's claim.

For the record, this case involved a patient who fell off a table after surgery in 2006. She landed on her head. We found the nurse in the case guilty because the patient was supposed to be under her care when the accident happened. As a practical matter, that also meant the hospital that defended her. However, we found the physician who performed the surgery not guilty. Once the procedure was finished, custom and hospital rules allowed her to leave.

In all, we awarded a package to the patient that came in just under $800,000. Of course, nobody is breaking out the checkbook quite yet. The case almost certainly will be appealed. And that review of the proceedings may add a couple more years to what has already been a years-long lawsuit.

As a rule, plaintiff's attorneys are reluctant to take a case they are unlikely to win — or at least get a settlement from. Therefore, they will use every legal means possible during trial to make it look like your organization dropped the ball, the patient or both. Anything you say in a deposition had better line up with your testimony, or you can be sure the opponent's counsel will point out the discrepancy.

Next, remember that you will have a chance to tell your side of the story. As mentioned earlier, we found the physician not guilty, despite the fact that things did not look good for her early on. Evidence showed, however, that she was free to leave post-surgery.

Also, tell the truth. Even if it is embarrassing. One of the reasons we ruled against the nurse was that she seemed to develop amnesia.

Finally, cut your losses if possible — but not in a way that totally insults the other side. In our case, the hospital offered less than $10,000 to avoid a trial. But subsequent medical bills for the patient were eight times as much. The provider basically asked for a trial, and lost. That decision easily cost the hospital hundreds of thousands in settlement costs — not to mention a boatload of additional legal expenses.

Yes, you are entitled to your day in court. But remember: That day can be expensive.
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