Category Archives: Civil Procedure

Physicians as “Expert Witnesses”

During a trial, the jury’s opinions and impressions about the case are critical.  One of the things I learned from my most recent trial was how the jurors weighed the testimony of expert witnesses.

In a malpractice case, the plaintiff will have her experts; the defendant physician will have his.  In a lot of cases, jurors will conclude that it is a “tie” because both sides had an expert to back up their case.  For a plaintiff, who bears the burden of proof, a “tie” is actually a loss.

This is important because the “tie-breaker” is often the defendant physician himself.  Not only does he testify about the factual circumstances of the treatment, but he often goes far beyond that, testifying as an expert on his own behalf.

In a recent decision, a Connecticut appeals court discussed the proper scope of testimony for a defendant physician who is essentially acting as an additional expert witness on his own behalf.  It is a valuable reminder of how important it is to be well-prepared for examining doctors who are acting not only as factual witnesses, but as medical experts.  A malpractice lawyer needs to be familiar not only with the legal aspects of the case, but also have a strong understanding of the medical issues, relevant literature, and prevailing standards of care.

Utah Medical Malpractice Cases: Why Do They Take So Long?

One of the most frustrating things for clients in medical malpractice cases is how long the process can take.  Often, being the victim of medical negligence forces people to use the civil justice system for the first time.  It can be an intimidating and frustrating process, but ultimately, it results not only in help with medical bills and lost wages, it compensates for pain and suffering as well.  Additionally, it teaches negligent health providers a lesson, making health care safer for everyone.

One of the earliest stages of a medical malpractice case is called “discovery.”  Discovery is a way to get information from the other party before trial. You can get any information from the other party that is relevant to the case. Use discovery to find out what evidence and arguments the other parties might use in their cases and at trial. Additionally, discovery can be used to constrain what evidence will be able to be offered at trial.

Medical malpractice cases have their own challenges when it comes to discovery.  Often, medical records are voluminous.  Sometimes they are stored electronically and require special knowledge and expertise to access them.  For instance, in birth injury cases, the original fetal heart rate tracing will have clues that are not contained in the digital version routinely produced in discovery.


There are three major purposes of discovery:

 First is the preservation of relevant information that might not be available at trial . . . . A second purpose of discovery is to ascertain the issues that actually are in controversy between the parties . . . [d]iscovery can be utilized to determine what really is at issue so that the parties can concentrate on obtaining evidence on those matters that are actually disputed. Finally, modern discovery allows a party to obtain information that will lead to admissible evidence on the issues that are in dispute.[1]

Once a lawsuit begins, the exchange of information between the parties and formal discovery is governed by the Rules of Civil Procedure. Each jurisdiction will have its own discovery rules. These rules allow the parties to obtain information from each other in several different ways. Utah recently enacted a new set of rules related to discovery.  It is important that if you or a family member have been harmed by medical negligence, you hire a lawyer who is familiar with these rules.  All malpractice actions take some time, but retaining a lawyer who has experience with the unique discovery challenges in medical malpractice cases is an important consideration.

Utah medical malpractice lawyer Ryan Springer has more than a decade of experience in litigating medical malpractice cases.  He knows the kind of games that hospitals and insurance companies play when hiding records or making discovery difficult, and he will fight to find the facts needed to win your case in court.  To schedule a free consultation, call (801) 502-8735, or fill out the contact submission form below.

[1] Jack H. Friedenthal, et al., Civil Procedure 386-87 (3d ed. 1999).

Landmark Utah Supreme Court Case Restores Fairness in Malpractice Cases

On Friday, the Utah Supreme Court handed down its decision in Turner v. University of Utah Hospitals.  You can read the decision here.

Ms. Turner was severely hurt in a car accident, and while she was being treated for her injuries at the hospital, staff members negligently moved her, breaking her back and paralyzing her.

When Ms. Turner went to trial, the jury pool was stacked against her. Because of a strange technicality called the “cure or waive” rule, Ms. Turner’s lawyer was put in a Catch-22 when he tried to eliminate some biased jurors from the panel.

Additionally, although there was no evidence of any alternative or approved treatments, the defense lawyers convinced a judge to give the jury an instruction that contradicted the law.

Because of these legal errors, the jury let the careless staff members off the hook for their negligence.

Ms. Turner’s lawyer appealed to the Utah Court of Appeals, but that court concluded that the “cure or waive” rule applied, and that the erroneous jury instruction was harmless.

Finally, Ms. Turner convinced the Utah Supreme Court to reexamine the case.  She asked for help from attorneys Ryan Springer and Michael Karras.  Working with the Utah Association for Justice, Mr. Springer and Mr. Karras wrote an amicus curiae brief on her behalf, arguing that fair trials should be more important than the rigid application of procedural rules, and also arguing against the use of poor and misleading jury instructions.

The Utah Supreme Court unanimously overturned the court of appeals decision and granted Ms. Turner a new trial.  The court agreed that the cure or waive rule is a bad idea, and that trial courts must be cautious in giving jury instructions in medical malpractice cases.

Mr. Springer and Mr. Karras donated their time and effort in this case to make sure that all Utah citizens get a right to a fair trial.  We wish Ms. Turner the best of luck in her continued fight for justice.


Utah Wrongful Death Law

Utah is just one of four states with constitutions that specifically preclude any limitation on recovery in wrongful death suits.  The Utah State Constitution expressly states that “[t]he right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation . . . .”  Utah const. art. XVI, § 5 (1896) (emphasis added).  Utah’s constitutional proscription on limiting recovery for wrongful death is sound public policy.  As one scholar has explained:

Under the pecuniary loss rule, followed in almost every state, life has no intrinsic value—no value per se.  This seems to be a peculiar result in a society that refuses, at least for some purposes, to place any price tag on human life.  Of course, an obvious distinction can be drawn between the cost of saving a life not yet lost and allowing tort recovery for one that is gone.  Since no amount of money can bring the decedent back, she cannot be compensated in any meaningful way for the loss of her life.  However, while this may justify a difference in the monetary values society attaches to lives that can be saved and those already lost, it does not support the traditional legal notion that a lost life has no cognizable value apart from the lost economic benefits the decedent would have conferred upon her survivor.

Andrew Jay McClurg, It’s a Wonderful Life: The Case for Hedonic Damages in Wrongful Death Cases, 66 Notre Dame L. Rev. 57, 59 (1990).

Fortunately, under Utah law, there is not—and there cannot be—any limit on the amount recoverable in wrongful death cases.

Families’ rights to seek judicial redress for the death of a loved one due to medical malpractice or other negligence are constitutionally protected. The nature of the right to seek judicial redress for wrongful death, and its constitutional significance, can be understood by examining history:

According to a Latin maxim, personal actions die with the person. The common law followed that maxim, holding that the death of either the tortfeasor or the victim eliminated all tort claims. In particular . . . [i]f the tort victim died, his cause of action was at an end. His estate had no cause of action.

Dan B. Dobbs, The Law of Torts, § 294 (2000). In 1846, however, England enacted Lord Campbell’s Act, which “created a wrongful death claim for the relatives of a decedent when the decedent would have had a claim if he or she had been merely injured and not killed.”

Utah’s Constitutional Wrongful Death Clause was “based on the enactment of Lord Campbell’s Act in 1846 in England to remedy a defect in the common law. The Act spread to this country, was enacted essentially in its present form in the Territory of Utah, and was then included in the Utah Constitution at statehood . . . . The plain meaning of the constitutional provision . . . is to prevent the abolition of the right of action for a wrongful death, whether in a wholesale or piecemeal fashion.”  Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 684 (Utah 1985) (internal quotations and citations omitted).

Accordingly, the state legislature has consistently maintained a statutory mechanism by which Utah citizens might avail themselves of the right. See Behrens v. Raleigh Hills Hospital, Inc., 675 P.2d 1179, 1184 (Utah 1983); Utah Code Ann. § 78-11-7. Discussing this act, the Utah Supreme Court stated:

Under 78-11-7, when the death of an adult is caused by the wrongful or negligent act of another, the heirs or the personal representative of the heirs may bring an action for damages against the person causing the death. This Court . . . interpreted the statute and held it to create “a new cause of action for the loss suffered by the heirs by reason of death and (the action) only comes into existence upon the happening of death.” The action is not derivative.

Hull v. Silver, 577 P.2d at 103-04 (quoting VanWagoner v. Union Pac. R. Co., 186 P.2d 293, 303 (Utah 1947)) (emphasis added).

Hull also highlights a critical point that is useful in understanding Utah’s wrongful death jurisprudence. In holding that the doctrine did not apply, the court relied heavily on the Washington Supreme Court’s decision in Johnson v. Ottomeier, 275 P.2d 723 (Wash. 1954). Quoting Johnson, the Utah Supreme Court adopted the reasoning that, “[n]ot having as its basis a survival statute, the action for wrongful death is derivative only in the sense that it derives from the wrongful act causing the death, rather than from the person of the deceased.” Hull, 577 P.2d at 106 (quoting Johnson, 275 P.2d at 725).

Those of us that live in Utah ought to be grateful to our State’s founding fathers, who had the wisdom and foresight to include this important provision in our State Constitution.