Here in New York.
You believe your doctor was careless.
You believe his carelessness caused you injury.
You also believe your injuries are permanent.
The defense says they did nothing wrong.
Your doctor claims that even if he did something wrong, so did you.
Your doctor also claims that your injuries are not as bad as you claim them to be.
There is a clear dispute.
Your doctor says he did not.
Who's right and who's wrong?
In New York, to answer that question, we are required to bring in a medical expert to testify that your doctor was careless.
Our medical experts must explain how your doctor's carelessness was a cause of your injury.
Likewise, the defense will bring in their own medical experts to contradict all we are claiming.
That means there will be many disputes throughout this case and during your trial.
That means a jury will be asked to decide whether you are more likely right than wrong.
You should know that the jury does not have to sit there for weeks making 100% sure that what you are claiming is true.
There are many people who have the perception that the trial judge is the one who influences how the jury reaches a verdict.
That would be incorrect.
Many have the perception that the trial judge decides which facts are true.
That would be true for a 'bench trial' also known as a judge-only trial.
Let's talk briefly about the key differences between what a jury does and what a judge does during a civil trial involving medical malpractice...
You should know that in a civil lawsuit where an injured victim is seeking money as a form of compensation for all the harms, losses and injuries she suffered, those cases are most often resolved by six members of the community who sit in judgment.
Those six members of the community have appeared for jury duty.
They have promised the attorneys in your case that they can be fair and impartial.
The trial judge will give the jury legal instructions at the beginning of your trial case, during your trial and at the end of your trial.
The trial judge is in charge of everything that happens in that courtroom.
The judge is in charge of scheduling.
The judge is in charge of making legal rulings.
The judge is in charge of whether questions can or cannot be answered.
The judge is in charge of telling the attorneys how much time they have to make closing arguments.
On the other hand, the jury plays a vital role in helping the litigants resolve their dispute.
You see, the litigants, the patient and her doctor, have been unable to resolve their dispute for years.
The jury will be sitting in judgment.
I often tell potential jurors when they arrive for jury duty that they are applying for a job.
Even though they didn't arrive at the court house voluntarily, once they are there, it's as if they're applying to be a juror.
They fill out a form called a questionnaire and then hand it to the attorneys as they walked into the jury room.
"Mrs. Jones, are you a little closer to the people who believe doctors can do no wrong?"
"Or, do you believe that everyone should be accountable for their actions?"
Even though the jurors do not wear black judicial robes, they decide who is telling the truth and who is not.
The jurors decide whom they believe and whom they do not.
The jurors decide whether to disregard a witness's testimony because he may have told a little white lie.
The jurors are fact-finders.
The judge plays no part in deciding what the facts really are.
The judge plays no part in assisting the jury to decide who is more likely right than wrong.
The judge is prohibited from telling the jury whom he believes is telling the truth.
At the end of the trial, after closing arguments have been made, the judge asks the court officer to lock the courtroom door in order to explain the law to the jury at length.
The jury needs to understand what the law is in this specific case.
Then, in order to reach their verdict they will be required to answer a series of questions.
The jury is not to substitute their own judgment or beliefs when applying the law.
To recap, we have the trial judge who is in charge of all things from a legal standpoint.
The judge is in charge of everything logistically that happens in the courtroom.
The judges in charge of how the trial proceeds.
The juror are the fact-finders.
The jurors help the litigants resolve the dispute by deciding for them.
The jurors are tasked with deciding which set of facts they believe and which they don't.
If they find that your doctor violated the basic standards of medical care, they have to decide if your doctor's wrongdoing was a cause of your patient's injuries.
The jury decides how much money you are to receive.
Money for your pain and the suffering you endured.
Money for your lost earnings.
Money for your medical expenses.
The judge plays no part in telling the jury how much money to give to you.
The amount of money you receive is decided entirely by the jury, not the judge.
Some mistakenly believe that the judge gives the jury guidelines about how much your injury is worth.
The reality is that he does not.
It is up to the jury to decide if you are legally entitled to receive money as compensation for your injuries.
If so, the jury determines how much.
The jury collectively decides how much money you receive.
You should know that in New York, there is no cap on pain and suffering.
Those arbitrary caps have been set by legislators in their state.
In New York, we do not have limits on how much an injured patient can receive.
If the defense believes that the amount of money given to an injured patient is an appropriate they can always try and get that decision reduced or thrown out.
If that does not work, the defense can always try to appeal the verdict.