AAOS Bulletin - February, 2006

The burden of proof in medical liability cases: A preponderance of the evidence

By Richard S. Crisler, JD

A medical liability trial is often the first—and an unpleasant—introduction to the civil legal system for many physicians. It is difficult for the physician defendant to allow attorneys to argue legal concepts without being permitted to explain his or her decisions. It is even more difficult for the physician defendant to sit quietly as other physicians testify about the alleged malpractice.

Too quickly the trial is over and a panel of strangers has passed judgment on the physician for treatment rendered years earlier with the best of intentions. Questions inevitably remain.

This article aims to answer some of those questions, specifically: What must the plaintiff prove to secure a judgment against a physician? What standard does the jury apply in determining whether the required proof was offered? What proposals for reform are gaining support?

Burden of proof 

In a lawsuit, the plaintiff bears the burden of proof. In most cases of medical negligence, the plaintiff must prove all elements of his or her claim by a simple “preponderance of the evidence.”

A preponderance of the evidence is that amount of evidence sufficient to make a contested fact more likely true than not. In mathematical terms, something is more likely true than not if it is 50.01 percent or more likely.

This standard is not the same as that required in a criminal prosecution. In a criminal case, the state must prove its case “beyond a reasonable doubt,” which is a higher burden of proof, related directly to the remedy being sought. In a civil case, the plaintiff is almost always seeking financial damages. In a criminal case, the state is seeking to deprive the defendant of his or her freedom and, in extreme cases, of life itself.

The plaintiff in a medical negligence case must prove—through expert medical testimony—that the defendant physician committed malpractice. The plaintiff must also prove that it is more likely than not that the malpractice caused him or her to sustain the alleged injuries. Finally, the plaintiff must prove the compensatory value of the damages being sought.

The defendant in a medical negligence case is not required to prove anything. He or she is free to point out inconsistencies in the plaintiff’s case and to suggest to the jury that the plaintiff failed to meet the burden of proof required.

Jury deliberations

Before deliberating, jurors will receive instructions from the judge on the law and issues they may consider in reaching a verdict. Specifically, the instructions to the jury will include:

• A physician is free to pursue any reasonable course of treatment. That another physician would have chosen a different path is not sufficient reason to rule against the defendant.

• The plaintiff must establish by a preponderance of the evidence that the course chosen by the defendant physician was unreasonable.

• The conduct of the physician is to be judged based on the medical information current at the time of the treatment. Subsequent surgical or therapeutic breakthroughs may not be considered.

If, after deliberation, the jury determines that it is more likely than not that the defendant failed to comply with the prevailing standard of care for similarly situated physicians, its verdict will be for the plaintiff. If the jury feels that the plaintiff has failed to prove the case, its verdict will be for the physician. If the jury concludes that the plaintiff and defendant have set forth equal arguments, but that the plaintiff failed to meet the burden of proof, the law compels the jurors to rule in favor of the defendant physician.

Proposals for reform 

Whether a preponderance of the evidence will remain the minimum show of proof required of malpractice plaintiffs is now part of the debate over medical liability reform. The current medical liability insurance crisis has sparked many proposals designed to lower medical liability insurance premiums.

For example, President George W. Bush has proposed capping noneconomic damages at $250,000. Others have proposed limiting contingency fees for plaintiffs’ attorneys and/or reducing the statute of limitations for medical liability.

A proposal to establish a more stringent burden of proof in medical negligence cases has also garnered support and is currently being debated in several state legislatures. It would establish a burden of proof in medical liability cases that is not so strict as the criminal standard of “proof beyond a reasonable doubt,” but that is certainly higher than the civil standard of a “preponderance of the evidence.”

The most common proposal is for evidence that is “clear and convincing.” Clear and convincing evidence has been defined as evidence that produces a firm belief or conviction that the allegations raised by the plaintiff are true. With this standard, the jury would have to find that the plaintiff presented evidence sufficient to be deemed clear and convincing to render a verdict in favor of the plaintiff.

Whether the current drive to provide physicians with increased protection from overly generous juries will be successful is an open question. Any progress will be made slowly and undoubtedly will be subject to court challenges. Until then, physicians who are accused of medical errors will be faced by plaintiffs who only need a preponderance of the evidence to win their cases.

Richard S. Crisler, JD, practices law at Leml & Kelleher, LLP, in New Orleans. He can be reached at rcrisler@lemle.com

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