In a medical malpractice case, plaintiff has the burden to prove: the applicable standard of care; that the health care provider deviated from the standard of care; and, the deviation caused and/or contributed to the plaintiff’s injury and damage. If the target is a hospital employee, the typical approach is to use expert witnesses to carry the burden.
Sounds simple, so what’s the problem with just using an expert? It’s the jury! The jury will hear your expert testify that the target employee breached the standard of care, but will also hear opposing counsel’s expert testify that the target employee did not breach the standard of care. The jury is then left with the problem of sorting out which expert is more credible and why. The solution? Take the focus off the expert testimony and focus on the rules set by the target employee’s employer – the hospital – and whether the em- ployee followed those rules. If the jury hears the employee broke the hospital’s rules, and finds that the untoward event would not have occurred if the rules had not been broken, they will more likely side with your expert. So, how do you accomplish that?
Most every juror on the panel will have worked somewhere during his or her lifetime. All employers have rules that have to be followed. Employees learn those rules during orientation, during training, from written policies, from written guidelines, from required readings and a host of other sources. Every juror knows that if he or she breaks the em- ployer’s rules, they are accountable for what happened and there will be consequences. Employees of hospitals are not any different, but the consequence could be serious injury and even death.
So, what practitioners should do in working up their hospital negligence case is get the “rules” that govern the employees conduct, expectations, and responsibilities in their hospital. By establishing the hospital’s “rules” through its own documents and actions it is much easier to show the jury that the employee violated the employer’s rules and the violation caused or contributed to the patient’s injury. Although you must still meet your burden of proof with expert testimony, instead of focusing on the phrase “standard of care” the jury begins focusing on “hospital’s” rules.”