Unfortunately, the jury instructions play into the defense use of experts to defend their case. CACI 505 - Success not required, and CACI 506 - Alternative Methods of Care allow the defense to argue that nothing that the defendants did or did not do mattered much in relation to the outcome.
But, in reality, these and other jury instructions simply allow a jury that has reached a conclusion to justify their decision if they find for the defense. Just as the unofficial standard on appeal involves some consideration about who should have won the case, the standard for the jury involves who they think should win, and then they fill in the details.
In any case where the jury finds for the defense, the jury will agree with the defense experts on negligence and/or causation. But in any case where the jury finds for the plaintiff, the jury will find the plaintiff 's experts more credible.
In such a situation, the plaintiff 's attorney need only explain why the jury instructions allow the jury to find for the plaintiff. In every medical malpractice case, the jury will try to determine the facts for themselves, and only then will they consider the expert testimony that coincides or agrees with their interpretation of the facts.
If the plaintiff 's attorney can keep the case focused on the facts of the case, especially factual disputes, and allow the medicine to follow the facts rather than the other way around, then much of the defense mantra that "the medicine controls the case," can be blunted or even reversed.
At trial, most jurors believe that paid experts will say anything because they are being paid for their opinions, especially in cases where the experts' opinions are diametrically opposed to each other. It makes no sense to a juror or anyone that science can lead to two opposite opinions from the same facts.
As the jury is told by the Court, the value of any expert's opinion depends on the facts upon which the opinion is based. If the plaintiff can control the facts of the case, the only expert opinion that will matter is the one that is based on the plaintiff 's facts.
This an excerpt of an article written by medical malpractice attorney Dr. Bruce Fagel, which originally appeared in the March 2011 issue of Plaintiff
Magazine