TRYING A MEDICAL MALPRACTICE CASE: A View From the Bench Judge J. Eric Elliff

TRYING A MEDICAL MALPRACTICE CASE:

A View From the Bench

Judge J. Eric Elliff

PRETRIAL

TRIAL

MEDICAL RECORDS DISCOVERY

A WORD ABOUT CAPP

PRETRIAL MOTIONS


“Peer review boards” as a discovery shield

Medical records – Can’t we all just get along?

One set only at trialAgree on redactions before trialOR get court guidance

Samms and Reuter




Samms and Reuter





One set only at trialAgree on redactions before trialOr get court guidance

Samms and Reuter





Samms and Reuter


AT-ISSUE/ DISCOVERABLE

TREATMENT


PRE-EVENT TREATMENT


POST-EVENT TREATMENT

PRE-EVENT TREATMENT


POST-EVENT TREATMENT

AT-ISSUE/ DISCOVERABLE

TREATMENT


A WORD ABOUT CAPP

PRETRIAL MOTIONS

A WORD ABOUT CAPPIt’s Coming (one way or another)

Best ideas from CAPP will go into CRCP

Early Guesses:Narrower DiscoveryFuller DisclosureMore power to impose sanctions


A WORD ABOUT CAPP

PRETRIAL MOTIONS

PRETRIAL MOTIONSShould be used to surgically narrow the case

Shreck Motions:Think before filingCourts hate excluding expertsExpertise vs. Relevance

Relevance Motions

PRETRIAL

TRIAL

JURY DEMOGRAPHICS

SO WHAT?

EXPERTS

JURY DEMOGRAPHICSYoung

Highly Educated

Skeptical

No empathy for “victimy” or angry plaintiffs

JURY DEMOGRAPHICSSubject Number Percent

SEX AND AGE Total population 600,158 100.0

Under 5 years 43,515 7.35 to 9 years 37,371 6.210 to 14 years 30,365 5.115 to 19 years 32,275 5.420 to 24 years 47,688 7.925 to 29 years 65,841 11.030 to 34 years 56,989 9.535 to 39 years 49,183 8.240 to 44 years 40,580 6.845 to 49 years 36,646 6.150 to 54 years 35,830 6.055 to 59 years 33,497 5.660 to 64 years 28,246 4.765 to 69 years 18,673 3.170 to 74 years 13,480 2.275 to 79 years 10,904 1.880 to 84 years 9,455 1.685 years and over 9,620 1.6 Median age (years) 33.7 ( X )

Colorado

JURY DEMOGRAPHICSCOLORADO

Subject Number PercentSEX AND AGE

Total population 600,158 100.0Under 5 years 43,515 7.35 to 9 years 37,371 6.210 to 14 years 30,365 5.115 to 19 years 32,275 5.420 to 24 years 47,688 7.925 to 29 years 65,841 11.030 to 34 years 56,989 9.535 to 39 years 49,183 8.2

JURY DEMOGRAPHICS

Subject Number PercentTotal population 308,745,53 100.0Under 5 years 20,201,362 6.55 to 9 years 20,348,657 6.610 to 14 years 20,677,194 6.715 to 19 years 22,040,343 7.120 to 24 years 21,585,999 7.025 to 29 years 21,101,849 6.830 to 34 years 19,962,099 6.535 to 39 years 20,179,642 6.5

TOTAL 26.8%

Subject Number PercentTotal population 600,158 100.0Under 5 years 43,515 7.35 to 9 years 37,371 6.210 to 14 years 30,365 5.115 to 19 years 32,275 5.4

20 to 24 years 47,688 7.925 to 29 years 65,841 11.030 to 34 years 56,989 9.535 to 39 years 49,183 8.2

TOTAL 36.6%

UNITED STATES COLORADO


Highly Educated

Skeptical


JURY DEMOGRAPHICS2010 Highest

Education Level Attained

Denver, CO Colorado United States

Did Not Complete High School

73,512 17.63% 318,375 9.90% 30,370,155 15.35%

Completed High School

87,869 21.08% 741,195 23.04% 57,863,097 29.24%

Some College 79,060 18.97% 733,620 22.81% 40,691,836 20.56%

Completed Associate Degree

24,517 5.88% 263,012 8.18% 14,841,627 7.50%

Completed Bachelors Degree

98,277 23.57% 769,266 23.92% 34,682,582 17.52%

Completed Graduate Degree

53,636 12.87% 391,002 12.16% 19,465,340 9.84%





73,512 17.63% 318,375 9.90% 30,370,155 15.35%


87,869 21.08% 741,195 23.04% 57,863,097 29.24%

Some College 79,060 18.97% 733,620 22.81% 40,691,836 20.56%


24,517 5.88% 263,012 8.18% 14,841,627 7.50%


98,277 23.57% 769,266 23.92% 34,682,582 17.52%


53,636 12.87% 391,002 12.16% 19,465,340 9.84%

TOTAL 36.44% 27.36%





73,512 17.63% 318,375 9.90% 30,370,155 15.35%


87,869 21.08% 741,195 23.04% 57,863,097 29.24%

Some College 79,060 18.97% 733,620 22.81% 40,691,836 20.56%


24,517 5.88% 263,012 8.18% 14,841,627 7.50%


98,277 23.57% 769,266 23.92% 34,682,582 17.52%


53,636 12.87% 391,002 12.16% 19,465,340 9.84%

TOTAL 36.08% 27.36%


Highly Educated

Skeptical


JURY DEMOGRAPHICS

SO WHAT?

EXPERTS

SO WHAT?They understand “mistakes” are an

inherent risk of surgery

Doctor’s apology may not be a bad thing

Pay attention to their questions

JURY DEMOGRAPHICS

SO WHAT?

EXPERTS

EXPERTSHorrible, mercenary creatures

But, jurors love themThey like to be educated (see above)Demonstrations are highly effective

Unless they come off as advocates

QUESTIONS?

TRYING A MEDICAL MALPRACTICE CASE: A View From the Bench Judge J. Eric Elliff

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