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

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Presentation on theme: "TRYING A MEDICAL MALPRACTICE CASE: A View From the Bench Judge J. Eric Elliff."— Presentation transcript:

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

2 PRETRIAL TRIAL

3 MEDICAL RECORDS DISCOVERY A WORD ABOUT CAPP PRETRIAL MOTIONS

4 MEDICAL RECORDS DISCOVERY “Peer review boards” as a discovery shield Medical records – Can’t we all just get along? One set only at trial Agree on redactions before trial OR get court guidance Samms and Reuter

5 “Peer review boards” as a discovery shield Medical records – Can’t we all just get along? One set only at trial Agree on redactions before trial OR get court guidance Samms and Reuter MEDICAL RECORDS DISCOVERY

6 “Peer review boards” as a discovery shield Medical records – Can’t we all just get along? One set only at trial Agree on redactions before trial OR get court guidance Samms and Reuter

7 MEDICAL RECORDS DISCOVERY “Peer review boards” as a discovery shield Medical records – Can’t we all just get along? One set only at trial Agree on redactions before trial OR get court guidance Samms and Reuter

8 MEDICAL RECORDS DISCOVERY “Peer review boards” as a discovery shield Medical records – Can’t we all just get along? One set only at trial Agree on redactions before trial Or get court guidance Samms and Reuter

9 MEDICAL RECORDS DISCOVERY “Peer review boards” as a discovery shield Medical records – Can’t we all just get along? One set only at trial Agree on redactions before trial OR get court guidance Samms and Reuter

10 MEDICAL RECORDS DISCOVERY AT-ISSUE/ DISCOVERABLE TREATMENT

11 MEDICAL RECORDS DISCOVERY PRE-EVENT TREATMENT

12 MEDICAL RECORDS DISCOVERY POST-EVENT TREATMENT

13 PRE-EVENT TREATMENT MEDICAL RECORDS DISCOVERY POST-EVENT TREATMENT AT-ISSUE/ DISCOVERABLE TREATMENT

14 MEDICAL RECORDS DISCOVERY A WORD ABOUT CAPP PRETRIAL MOTIONS

15 A WORD ABOUT CAPP It’s Coming (one way or another) Best ideas from CAPP will go into CRCP Early Guesses: Narrower Discovery Fuller Disclosure More power to impose sanctions

16 A WORD ABOUT CAPP It’s Coming (one way or another) Best ideas from CAPP will go into CRCP Early Guesses: Narrower Discovery Fuller Disclosure More power to impose sanctions

17 A WORD ABOUT CAPP It’s Coming (one way or another) Best ideas from CAPP will go into CRCP Early Guesses: Narrower Discovery Fuller Disclosure More power to impose sanctions

18 A WORD ABOUT CAPP It’s Coming (one way or another) Best ideas from CAPP will go into CRCP Early Guesses: Narrower Discovery Fuller Disclosure More power to impose sanctions

19 A WORD ABOUT CAPP It’s Coming (one way or another) Best ideas from CAPP will go into CRCP Early Guesses: Narrower Discovery Fuller Disclosure More power to impose sanctions

20 A WORD ABOUT CAPP It’s Coming (one way or another) Best ideas from CAPP will go into CRCP Early Guesses: Narrower Discovery Fuller Disclosure More power to impose sanctions

21 MEDICAL RECORDS DISCOVERY A WORD ABOUT CAPP PRETRIAL MOTIONS

22 Should be used to surgically narrow the case Shreck Motions: Think before filing Courts hate excluding experts Expertise vs. Relevance Relevance Motions

23 PRETRIAL MOTIONS Should be used to surgically narrow the case Shreck Motions: Think before filing Courts hate excluding experts Expertise vs. Relevance Relevance Motions

24 PRETRIAL MOTIONS Should be used to surgically narrow the case Shreck Motions: Think before filing Courts hate excluding experts Expertise vs. Relevance Relevance Motions

25 PRETRIAL MOTIONS Should be used to surgically narrow the case Shreck Motions: Think before filing Courts hate excluding experts Expertise vs. Relevance Relevance Motions

26 PRETRIAL MOTIONS Should be used to surgically narrow the case Shreck Motions: Think before filing Courts hate excluding experts Expertise vs. Relevance Relevance Motions

27 PRETRIAL MOTIONS Should be used to surgically narrow the case Shreck Motions: Think before filing Courts hate excluding experts Expertise vs. Relevance Relevance Motions

28 PRETRIAL TRIAL

29 JURY DEMOGRAPHICS SO WHAT? EXPERTS

30 JURY DEMOGRAPHICS Young Highly Educated Skeptical No empathy for “victimy” or angry plaintiffs

31 JURY DEMOGRAPHICS SubjectNumberPercent SEX AND AGE Total population600, Under 5 years43, to 9 years37, to 14 years30, to 19 years32, to 24 years47, to 29 years65, to 34 years56, to 39 years49, to 44 years40, to 49 years36, to 54 years35, to 59 years33, to 64 years28, to 69 years18, to 74 years13, to 79 years10, to 84 years9, years and over9, Median age (years)33.7( X ) Colorado

32 JURY DEMOGRAPHICS COLORADO SubjectNumberPercent SEX AND AGE Total population600, Under 5 years43, to 9 years37, to 14 years30, to 19 years32, to 24 years47, to 29 years65, to 34 years56, to 39 years49,1838.2

33 JURY DEMOGRAPHICS SubjectNumberPercent Total population308,745, Under 5 years20,201, to 9 years20,348, to 14 years20,677, to 19 years22,040, to 24 years21,585, to 29 years21,101, to 34 years19,962, to 39 years20,179, TOTAL26.8% SubjectNumberPercent Total population600, Under 5 years43, to 9 years37, to 14 years30, to 19 years32, to 24 years47, to 29 years65, to 34 years56, to 39 years49, TOTAL36.6% UNITED STATESCOLORADO

34 JURY DEMOGRAPHICS Young Highly Educated Skeptical No empathy for “victimy” or angry plaintiffs

35 JURY DEMOGRAPHICS 2010 Highest Education Level Attained Denver, COColoradoUnited States Did Not Complete High School 73, %318, %30,370, % Completed High School 87, %741, %57,863, % Some College79, %733, %40,691, % Completed Associate Degree 24, %263, %14,841, % Completed Bachelors Degree 98, %769, %34,682, % Completed Graduate Degree 53, %391, %19,465, %

36 JURY DEMOGRAPHICS 2010 Highest Education Level Attained Denver, COColoradoUnited States Did Not Complete High School 73, %318, %30,370, % Completed High School 87, %741, %57,863, % Some College79, %733, %40,691, % Completed Associate Degree 24, %263, %14,841, % Completed Bachelors Degree 98, % 769, %34,682, % Completed Graduate Degree 53, % 391, %19,465, % TOTAL36.44%27.36%

37 JURY DEMOGRAPHICS 2010 Highest Education Level Attained Denver, COColoradoUnited States Did Not Complete High School 73, %318, %30,370, % Completed High School 87, %741, %57,863, % Some College79, %733, %40,691, % Completed Associate Degree 24, %263, %14,841, % Completed Bachelors Degree 98, %769, % 34,682, % Completed Graduate Degree 53, %391, % 19,465, % TOTAL36.08%27.36%

38 JURY DEMOGRAPHICS Young Highly Educated Skeptical No empathy for “victimy” or angry plaintiffs

39 JURY DEMOGRAPHICS Young Highly Educated Skeptical No empathy for “victimy” or angry plaintiffs

40 JURY DEMOGRAPHICS SO WHAT? EXPERTS

41 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

42 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

43 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

44 JURY DEMOGRAPHICS SO WHAT? EXPERTS

45 Horrible, mercenary creatures But, jurors love them They like to be educated (see above) Demonstrations are highly effective Unless they come off as advocates

46 EXPERTS Horrible, mercenary creatures But, jurors love them They like to be educated (see above) Demonstrations are highly effective Unless they come off as advocates

47 EXPERTS Horrible, mercenary creatures But, jurors love them They like to be educated (see above) Demonstrations are highly effective Unless they come off as advocates

48 EXPERTS Horrible, mercenary creatures But, jurors love them They like to be educated (see above) Demonstrations are highly effective Unless they come off as advocates

49 EXPERTS Horrible, mercenary creatures But, jurors love them They like to be educated (see above) Demonstrations are highly effective Unless they come off as advocates

50 QUESTIONS?


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