I recently came across a blog post written by a physician who was expressing his opinion about how our civil justice system is unfair to doctors. In an effort to make his point, the doctor pointed out that in criminal cases the State must prove its case “beyond a reasonable doubt” in order to get a conviction. Whereas in a civil case, the plaintiff must only prove his or her case by a “preponderance of the evidence” in order to win a money judgment. As a New York Patient Safety and Medical Malpractice Attorney, I found these opinions interesting and thought that I would weigh in on this issue.
ARE THERE REALLY DIFFERENT BURDENS OF PROOF IN DIFFERENT KINDS OF CASES?
It is true that in order to convict a human being of a crime the State must prove its case “beyond a reasonable doubt”. That is a concept which I’m sure most of us have heard before. It’s a high burden that the courts place on the prosecutor because of what is at stake in criminal cases. This burden doesn’t require absolute certainty by the jury, but it is pretty close.
In contrast, the attorney who represents the family or injured patient in a civil case, such as medical malpractice, must prove his or her case by a “preponderance of the evidence”. In other words, the evidence put forth by the patient’s attorney must more closely resemble the truth than the evidence opposed to it by the defense. It has been quantified as being at least 51% versus 49%. It has also been said that when balancing the evidence “the scales of justice must be tipped slightly in the patient’s favor”.
DOES ANYONE THINK LIKE THIS IN REAL LIFE?
When I first began to analyze the concept of applying a different amount of “certainty” to my decisions, I was surprised to discover that this is actually something that I do in my own life on a daily basis. For example, I give a lot of thought to matters that involve my family, decisions that involve close friends, and issues that involve health or safety. On the other hand, I give very little thought to other things in my life like which pair of socks I put on every morning, the number of walnuts that I put in my morning oatmeal, or whether I arrive at work right on time or a half hour early (to me it doesn’t matter much as long as I’m not late!). So, after thinking about these things as they apply to my life, I realized that in fact this does make a lot a sense.
HOW DOES THIS PLAY OUT IN THE COURTS?
With regard to the claim that the civil litigation system is unfair to physicians because the “burden of proof” is lower in civil cases than criminal case consider the following:
- Patient’s in civil cases are still required to “prove” their case. Invariably, defense lawyers always point out to juries that under the law, they’re not required to prove anything because it’s the plaintiff’s burden to prove there was negligence. And proving that a doctor was negligent is difficult for several reasons. First, consider that in a medical malpractice case there are rarely ever any witnesses to the doctor’s malpractice other than the defendant and his or her associates. Further, there are no surveillance cameras in the examining rooms, and doctors and hospitals have now made it standard procedure to prohibit family members from trying to record the birth of their child – even when it’s only to document a happy time in their lives. It’s obvious that doctors don’t want to take the chance that they will be caught on camera committing malpractice, and therefore routinely ban videocameras from hospitals. Contrast this to criminal cases where there are often surveillance cameras in stores, banks and now on most street corners which are there specifically to document criminal activity to later be used in court. Consider also a recent article posted by a physician’s special interest group called the AMA cautioning doctors to be careful about what they say, and to consider implementing a “strict policy” that prohibits patients from tape-recording their conversations. Why would someone not want to be recorded if they are seeking the truth? It seems that it’s not really a fear of a “lawsuit” that some doctors are trying to avoid, instead it’s their fear that the “truth” will be discovered which causes them to implement all of these prohibitions on audio and visual recordings.
- Procedural law, and the limits of “permissible discovery”, are different in criminal and civil cases. In criminal cases, police officers and detectives routinely have access to the accused before he or she has a chance to consult with an attorney. Therefore, police frequently have an opportunity to “interrogate” a criminal defendant while the defendant is in their custody. In a medical malpractice case, the attorney for the patient is not allowed to have any contact with the defendant doctor unless the doctor’s malpractice lawyer is present. Further, a defendant doctor can only be questioned after the defense lawyer has first had the opportunity to question the injured patient and his or her family. In New York, this questions and answer session called a deposition is conducted outside the presence of the Judge. As a result, malpractice defense lawyers have become notorious for preventing their clients from saying anything that might implicate them in any wrongdoing.
- The prosecutor in a criminal cases is able to gain access to more information about an accused criminal than an attorney representing a patient in a medical malpractice case can access. For example, a criminal investigator can conduct wiretaps, impound evidence, conduct forensic testing, and perform detailed investigations of the scene of the crime. The police are always the first ones present at a crime scene. The scene is then roped off and the investigators collect and retain all of the evidence that they will use to later prove their case in court. In contrast, plaintiff’s in medical malpractice cases are limited to obtaining copies of the records that are provided by the defendant doctor and the defendant’s legal team. In fact, whatever is contained in the medical records is invariably what has been written by the doctor, and the original records are kept in the doctor’s exclusive custody. Anybody who has tried to obtain information about a hospital’s “quality assurance” meetings learns very quickly how limited patients are in their ability to discover what really happened at the time of malpractice. Instead, patients in malpractice cases are only given access to what the doctors and their lawyers allow the patients to see. I recently blogged about a case where a doctor changed her records and then admitted to it at her deposition. While I have encountered a sufficient amount of altered records in my career, this was the first time that a doctor actually admitted to the fraud. Finally, a patient in New York is not allowed to tell the jury about the number of other times a doctor has committed malpractice. Doctors in civil case are practically immune from having the jury hear about their past lawsuits and transgressions. Unlike a criminal who has a past “record”, doctors don’t get held to the same standards. A civil jury will never hear that a doctor was found to have committed malpractice on 10 other patients, or even that a doctor’s license was suspended for reckless conduct, malpractice, or drug use.
- Patients are required to prove malpractice exclusively through the doctors own records. Any notes a patient makes about his or her own care is not admissible. However, anything the doctor writes in a note is automatically admissible. How fair is that? Also, some feel there is a tendency for jurors to believe what is written in medical records – even if what the doctor wrote is not true. If a doctor fails to record a complaint (say of chest pain or shortness of breath), that failure to document will turn into the doctors affirmative defense that the patient never made the complaint. The days of arguing that “if it’s not charted, it’s not done” are over. Now doctors routinely claim that they only document “abnormal findings”. Therefore, if the results of an important exam aren’t documented (for example the examination of pedal pulses), the standard defense is that the exam was done but that it was normal, and therefore there was no reason to document it.
- Consider also the advantages doctors have when it comes to litigating a wrongful death case, or a case involving an injured child. In these cases, the jury never gets to hear the patient’s side of the story. I recently litigated a wrongful death case where the defense came into court every day with a new “story” about the decedent’s non-compliance with medical advice. Fortunately, the jury was able to see through these fallacies as the defendant doctor’s stories became more and more outlandish. After three days of deliberations the jury returned an appropriate verdict on behalf of a deserving family. I should also mention that not once during the 5 years it took to bring that case before the jury, nor during the month long trial, did the defense ever offer a penny to try to settle that case. I am saying this to hopefully disabuse anyone reading this post that “legitimate” malpractice cases get settled. I have my own feelings about why the defense chose to not offer to settle that case, and it doesn’t have anything to do with the merits of the case.
- Finally, in a criminal case, the consequence of losing is that someone will have their freedom taken away. The criminally accused can be put in jail and physically removed from their family, friends and community. While I’m not insensitive to the anxiety that a person may feel after being named as a civil defendant (no doubt some do), the impact this may have on someone’s life cannot be compared to being sent to jail. Further, it is so rare that a civil defendant is required to pay a judgment out of pocket, that it’s almost not worth mentioning. Virtually 100% of all verdicts and settlements are paid by the doctor’s insurance company, with no money paid by the negligent doctor. It should be noted that a civil case does not effect the doctor’s ability to continue to practice medicine since the Judge in a civil case does not have the power to revoke or suspend a medical license. However, it is my hope in each case I handle that the doctor will learn something as a result of being part of the process and never injure anyone else the way he or she injured my client.
DOES IT MAKE SENSE?
I hope this has helped you to understand why there are different burdens of proof in different kinds of cases. I also hope to hear back from you. Is it fair to have a lower burden of proof in civil cases than criminal cases? Does a lower burden make things too easy on civil plaintiffs? Should the burden be on the doctor or hospital to prove the absence of negligence in cases involving wrongful death or injury to a child?