At the end of a trial in a Texas medical malpractice case, the judge presents a charge to the jury. The charge is a set of questions that the jury must answer based on the evidence presented in the case.
The first question is whether any defendant’s conduct was negligent and caused injury to the plaintiff.
When there are multiple defendants in a case, next comes the proportionate responsibility question. In this question, the jury assigns a percentage responsibility to each defendant for the plaintiff’s injuries. The total adds up to 100%.
If the jury finds that any one defendant’s negligence is 51% responsible for the plaintiff’s injuries, then that defendant has joint and several liability. Joint and several liability means that the plaintiff can collect the entire judgment from that one defendant.
In my experience as a Houston, Texas medical malpractice lawyer, most defendants “circle the wagons” and avoid criticizing one another. Sometimes, though, disputes break through and a defendant points out faults or mistakes by a co-defendant. For example, in a birth injury case that I recall, the OB/GYN defendant testified at deposition that she would have ordered an emergency C-Section much sooner if the hospital’s labor and delivery nurses had promptly informed her of concerning changes in the electronic fetal monitoring strip.
During the discovery phase and oral depositions in a lawsuit, plaintiffs should be aware of a tactic that health care defendants and their attorneys often use to try and deflect blame.
It works like this: The defense attorney asks the plaintiff about any criticisms of other health care providers who aren’t named as defendants in the lawsuit. Sometimes unprepared plaintiffs take the bait and vent their frustration at how a nurse, tech, or doctor wasn’t compassionate or sympathetic, or may have been unresponsive or downright rude.
This type of testimony allows the defense to paint the plaintiff as critical and bitter toward a wide swath of providers—even those who didn’t directly cause harm through their care. In some situations, the testimony may provide the basis for a defendant to seek to designate a responsible third party. What that means is that the name of the responsible third party is added to the jury charge, which the defendant hopes will confuse and distract the jury’s attention away from his or her own conduct.
I advise my clients to avoid these traps and to focus 100% of all criticisms on defendants named in the lawsuit. Through our careful investigation of the medical records and facts of the case, we determine whose conduct caused harm to the plaintiff. We’re able to achieve the best outcome when the focus stays on those parties.
If you’ve been seriously injured by a medical mistake then contact a top-rated Houston, Texas medical malpractice lawyer for help in evaluating your potential case.
