Medical Care Law

Chapter 5 - Civil And Criminal Litigation

Highlights

Criminal investigations are done before the defendants know they are targets.

Civil investigations are usually done after the case is filed and the defendant is notified.

Legal privilege for communications and records must be protected at all times-once lost, it cannot be regained.

Courts and juries do not understand scientific evidence.

Understanding how trials work can help health care practitioners cope with the stress of litigation.

Introduction

Prefiling

Investigating the Criminal Case

Witness Statements

Search Warrants

Investigating the Private Civil Case

Preclaim Discovery

Statute of Limitations

Pretrial Settlements

Criminal Settlements

Civil Settlements

Pretrial

Pleadings

Service of Process

The Plaintiff's Complaint

The Defendant's Answer

Civil Discovery

Interrogatories

Requests for Admissions

Depositions by Written Questions

Oral Depositions

Requests for Production

Subpoenas

Subpoena Duces Tecum

Objecting to Civil Discovery

Criminal Discovery

Which Cases Go To Trial?

Why Settle before Trial?

Incentives against Settlement

Delays in Getting to Trial

Admitting Evidence

Protecting the Jury

Invoking the "Rule"

Cross-Examination

The Hearsay Rule

Business Records Exception to Hearsay

Entry in the Regular Course of Business

Personal Knowledge

Timely Entry in the Usual Course of Business

Standard Recordkeeping Procedure

Expert Testimony and Professional Standards

Fact Witnesses

Expert Witnesses

Evaluating Expert Witnesses

The Frye Rule

The Daubert Case

The Daubert Test

Qualifying a Medical Standards Expert Witness

Posttrial

The Cost Of Litigation

Contingent Fees

Problems with Contingent Fees

Costs in Other Countries

Emotional Risks Of A Trial

Attacking the Defendant

Surviving a Trial

References

Suggested Readings

Appendix 5-A - Guidelines For Expert Witness Testimony In Medical Liability Cases

American Academy of Pediatrics Committee on Medical Liability