In a trial, the judicial process is designed to determine certain facts by hearing evidence, determine which facts are relevant, apply relevant principles of law, and then pass a judgment. A grand jury hearing is the first step in some cases.
The Grand Jury
The federal government and many states use the grand jury process. A grand jury, usually consisting of from 12 to 23 private citizens, hears evidence about a criminal case in order to determine if the case has enough merit to be heard in court. Thus, a grand jury can serve as a filter to prevent cases from being heard when there is insufficient evidence. The grand jury hearings are held in private, and the defendant , the person being sued in a court of law, may or may not appear to speak before the grand jury. The defendant can be a physician, a nurse, the healthcare facility (employer), and/or other healthcare providers. The grand jury can ask to see documents relating to the investigation and speak with witnesses. After hearing all the evidence and deliberating among themselves, the grand jury votes on whether they should move the indictment , a written legal charge against the defendant, to a trial court.
When two parties are unable to solve a dispute by themselves, it may result in litigation , a dispute or lawsuit that is tried in court. A physician may be the plaintiff , the person bringing an action into litigation, or the defendant. A plaintiff can be a patient, the patient’s family, or anyone else who has a right to be compensated under the law due to the injury the patient (plaintiff) has received. A prosecutor brings a criminal lawsuit on behalf of the government. Not all lawsuits end up in court. In many situations, attorneys for both sides work out a settlement, or agreement, between the parties, so there is no need for a trial. This is called settling out of court.
If the parties are unable to settle the dispute, a trial may be held. A court case can be tried before a judge only or before a judge and jury of the defendant’s peers. Both parties (defendant and plaintiff) in the case may waive , or give up their right, to a jury trial or request a jury trial.
If a jury is requested, then 6 to 12 people are selected from a large pool of potential jurors. The jurors are most commonly summoned from a list of residents of a particular region, registered voters, or driver’s license holders. The judge and attorneys for both sides of the case (plaintiff and defendant) question the potential jurors to find an impartial jury. Once the final selection of jurors is made, the case is ready to begin.
A trial begins with opening statements made by the attorneys for each side of the case that describe the facts they will attempt to prove during the case. The plaintiff’s attorney then questions the first witness. A witness is generally someone who has knowledge of the circumstances of the case and can testify, under oath, as to what happened. This witness can then be cross-examined (asked questions) by the defendant’s attorney. After all of the plaintiff’s witnesses have been examined and cross-examined, the defendant’s attorney (defense counsel) presents witnesses for the defense side of the case. The plaintiff’s attorney then has an opportunity to cross-examine the defense witnesses. When this portion of the case has been completed, and once any additional witnesses are called and cross-examined, both sides “rest their case,” which means that all the evidence and witnesses have been examined.
The U.S. legal system is based on the premise that all persons are innocent until proven guilty. Because the plaintiff is claiming that the defendant violated a law, the burden of proof is placed upon the plaintiff to prove that the defendant is liable.
Discovery is the legal process by which facts are discovered before a trial begins. A court of law may need to subpoena a person or records. A subpoena is a written command from the court for a person or documents to appear in court. In some cases, a deposition can be taken, meaning that the person’s statement is recorded with witnesses present, and the person may not be required to appear in court. The deposition is submitted by an attorney during the court case. A subpoena duces tecum, a Latin phrase meaning “under penalty, take with you,” is a court order requiring a witness to appear in court and to bring certain records or other material to a trial or deposition. There is a penalty for failure to appear, or present documents, if subpoenaed by the court. A person or documents may also be produced in court on a voluntary basis, thus not requiring a subpoena. (Subpoena duces tecum is explained more fully in Chapter 9 .)
A subpoena must be sent by registered mail or hand-delivered (served) to the person who is being requested to appear in court, that is, the person who is named on the subpoena. Unless requested to do so, an assistant cannot accept a subpoena on behalf of a physician without his or her knowledge; otherwise, the subpoena is considered “not served.” The physician may delegate the responsibility to an assistant to accept a subpoena on his or her behalf, but this practice is not encouraged. If there are any questions, it is always a good idea to consult with an attorney if you are served a subpoena. A failure to appear in court, or produce materials, as asked in the subpoena is considered to be a “contempt of court” and carries a serious penalty.
A request may be made by an attorney on either side for a summary judgment to take place in a civil lawsuit. A summary judgment is a decision made by the court (judge) in response to a motion that declares there is no necessity for a trial since there is no dispute as to the material fact. Any person who is involved in a civil action can request, through their attorney, a summary judgment by the judge if he or she believes there is no issue of law involved in the case. When the evidence supporting the position of one of the parties involved in the lawsuit is very clear from the onset, there may be no need for a trial to take place. It is a procedural device that can assist in bringing a controversy to quick closure without a trial. Summary judgment can result in a win for one side of the case and is based on pleadings (formal written statements) alone.
Attorneys for both the plaintiff and the defendant then present summaries of the evidence or summaries of their case, called closing arguments . In a jury trial, the judge instructs the jury on the areas of law that affect the case. The jury is then excused and taken to another room so they can deliberate, examine the evidence presented, and come to a conclusion, or verdict. If the trial has been conducted in front of a judge without a jury, then the judge makes a decision based on the evidence presented and the law. In a civil case, if the judge or jury finds in favor of the plaintiff, then the defendant is typically ordered to pay the plaintiff a monetary award. In a criminal case, if the defendant is found guilty, the judge sentences the defendant with a fine and/or a prison sentence. In some cases, if the state statutes allow it, the death penalty may be applied. If the defendant wins in either a civil or criminal case, the case is over unless an appeal is made. See Figure 2.7 for an illustration of a civil trial procedure.
Figure 2.7 The Procedure for a Civil Trial
A plaintiff or defendant may appeal the decision to a higher court. Ultimately, a case can be appealed to the highest court, either in the state or, in a federal case, the U.S. Supreme Court.
A judgment of not guilty, or not liable as in a malpractice case, does not mean that the defendant did not commit the crime or perform the misconduct. It only means that, based on the evidence presented, the plaintiff failed to prove it to a jury.
Standards of Proof
When deciding a case in a court of law, there are several different levels of proof that are required depending on how serious society considers the crime to be. In a civil case, the court will generally look at a “preponderance of evidence.” This is evidence that, as a whole, shows that the fact sought to be proved is more probably true than not. This means that the burden of proof in a civil case will place greater weight on evidence that is more credible and convincing. This does not mean that the cases will be decided on a greater number of witnesses, but rather on a greater weight of all the evidence.
In juvenile abuse cases, the court tends to use “clear and convincing evidence.” This means that there is a reasonable certainty of the truth. “Clear and convincing evidence” or proof, requires more than a “preponderance of evidence” or proof, as in a civil case, and less than proof “beyond a reasonable doubt” as in a criminal case. In criminal trials, a judge or jury must find the defendant guilty “beyond a reasonable doubt,” which means that the facts when proven must establish guilt.
An expert witness is a person called as a witness in a case where the subject matter is beyond the general knowledge of most people in the court or on the jury. In healthcare related cases, this person, usually a medical professional, has special knowledge or experience not only about the facts of a case but also about the professional conclusions that are drawn from the facts. The testimony of the expert witness should assist the jury or judge in evaluating the facts in a particular case. In a medical malpractice suit, an expert witness often is called to testify as to what the standard of care for a patient is in a similar circumstance and locality. An expert witness in a medical malpractice suit involving a physician is generally a physician. In cases involving nurses, an expert witness is often a nurse.
Expert witnesses, who are generally paid a fee, may use visual aids such as charts, photos, x-rays, models, and diagrams. They do not testify about the actual facts of the case, but clarify points of knowledge that may not be readily understood by all present. Physicians and nurses often serve as expert witnesses to describe the standard of care in a community when another physician or nurse is being sued for negligence. For example, an expert witness on the topic of DNA may be called to testify in a paternity case.
Testifying in Court
If you are called to testify in court, remember the following:
· Always tell the truth.
· Be professional. People are judged by their appearance as well as by their behavior in court. An attorney can offer further advice on this.
· Remain calm, dignified, and serious at all times. The opposing attorney may try to make the witness nervous by asking difficult questions.
· Do not answer a question you do not understand. Simply ask the attorney to repeat the question or state, “I don’t understand the question.”
· Just present the facts surrounding the case. Do not give any information that is not requested. Do not insert your opinion. “The patient was shouting” is stating a fact; “He was angry” is your opinion.
· Do not memorize your testimony ahead of time. You will generally be allowed to take some notes with you to refresh your memory concerning such things as dates.
Keep in mind that a lawsuit can take years to come to closure. The mean age for a lawsuit from beginning to settlement is three to five years. Every necessary step should be taken to avoid a lawsuit in the first place.
Appellate Court System
The U.S. legal system at both the state and federal levels has a built-in appeals process for decisions that need to be reviewed. If the losing party in a lawsuit believes that the case was handled improperly or unfairly, it can “appeal” to a higher court of law to have the decision corrected or changed in its favor. The appellate court, or higher court, reviews the written transcripts of the original trial. This court will examine the evidence to determine if, in its opinion, the ruling was correct and fair. The appellate court does not retry the case but acts as a reviewing court. After reading the transcripts from the case, the judge affirms the original decision, reverses it, or modifies it.