A Sample Medical Malpractice Trial
Opening Statement Sample
Good afternoon members of the jury. We are here because the defendant, Dr. Welby, negligently managed Mrs. Jones’ delivery of her baby daughter Rebecca by failing to deliver her as soon as possible after signs of severe fetal distress. Dr. Welby’s medical negligence caused Rebecca to be deprived of oxygen, which caused catastrophic injury to Rebecca’s brain, resulting in cerebral palsy.
The evidence in this case will be that on the day of Rebecca’s delivery, Mrs. Jones went into labor when she started having contractions. Right after the contractions began, Mrs. Jones went to the hospital where her obstetrician, Dr. Welby, saw her.
At the hospital, Mrs. Jones was hooked up to a machine to monitor baby Rebecca’s heart rate. After a few hours of labor, Dr. Welby told Mrs. Jones to start pushing. While she was busy pushing, the fetal heart monitor showed that Rebecca’s heart rate dropped from the normal range of about 150 beats per minute to the abnormal range of about 60 beats per minute, and it never returned to the normal range. That is a sure sign that the fetus is in grave danger and needs to be delivered as soon as possible. Dr. Welby saw the fetal monitor results, but unfortunately did not do what he should have done—what the standard of care required—and that is to quickly rescue Rebecca by ordering an emergency C-section and getting Rebecca out of Mrs. Jones within 30 minutes of first noting Rebecca’s distress. In fact, Dr. Welby simply continued with the labor process and delivered Rebecca more than two whole hours after the fetal distress first began.
Now ladies and gentlemen, the evidence in this case will show that when Rebecca was delivered, she was barely alive. She was blue, not breathing, and her heart was not beating. She eventually was resuscitated, but by then the damage had already occurred. Rebecca’s brain had been starved of oxygen for far too long. And unfortunately, the brain is one of the organs that simply cannot repair itself; the damage is irreversible.
As a result of Dr. Welby’s negligence, three-year-old Rebecca now suffers from severe mental deficits, and she has been diagnosed with cerebral palsy.
During the course of this trial, you will hear from an expert obstetrician who will tell you that Dr. Welby deviated from the standard of care by failing to quickly rescue Rebecca from fetal distress. You also will hear from an expert pediatric neurologist who will tell you that Rebecca’s physical and mental deficits were caused by Dr. Welby’s failure to timely deliver her.
We also will call to the witness stand a rehabilitation nurse who will testify about Rebecca’s future medical and other care needs. She will present to you a Life Care Plan that sets forth the costs of all of the care that Rebecca will need for the rest of her life. And finally, we will present the testimony of an economist who will testify as to the amount that you should award Rebecca to cover all of her lost wages and the medical and other care that she needs.
Members of the jury, this is a tragic case. And the terrible tragedy is that it all could have been prevented if Dr. Welby had done what Mrs. Jones trusted him to do—safely deliver her child.
Direct Examination of the Plaintiff’s Obstetrician Expert – Dr. Doe
Q: Dr. Doe, will you please tell the members of the jury what your qualifications are to testify in this case?
A: Yes. I am an obstetrician who has been practicing for 30 years. I am Board Certified in Obstetrics, and a Professor of Obstetrics and Chairman of the Department of Obstetrics at the State University. I also am the editor of the most widely recognized textbook on obstetrics.
Q: Dr. Doe, have you had an opportunity to review Mrs. Jones’ records and other material in this case?
A: Yes. I have reviewed Mrs. Jones’ obstetrical and delivery records, Rebecca’s delivery records, and various depositions in this case.
Q: Doctor, do you have an opinion as to whether Dr. Welby was negligent in this case?
A: Absolutely. It is my opinion that Dr. Welby’s care of Mrs. Jones and Rebecca deviated from the standard of care because he did not properly and timely respond to Rebecca’s fetal distress.
You see, a fetus needs oxygen to survive. But sometimes, for various reasons, the fetus does not get the oxygen it needs. This causes the fetus’ heart rate to drop; it is a warning sign that cannot be missed. And when a doctor sees that warning sign, the doctor is required to declare an obstetric emergency and deliver the child in less than 30 minutes. You see, studies have shown that a fetus can survive such an emergency for no more than 30 minutes. And we have standards in our industry that require that a fetus be delivered within 30 minutes of such an emergency.
In this case, everything was fine on the morning of Rebecca’s delivery until the fetal monitor showed her heart rate drop. This was a warning sign that Dr. Welby needed to pay attention to. But, tragically, he did not do what he should have done. In fact, he waited over two hours to deliver Rebecca after the first signs of the severe fetal distress. That was negligence, plain and simple.
Direct Examination of the Plaintiff’s Pediatric Neurologist – Dr. Roe
Q: Dr. Roe, will you please tell the members of the jury what your qualifications are to testify in this case?
A: Yes. I am a pediatric neurologist. I have been practicing for 40 years. I am Board Certified in Neurology, and I am a full Professor of Neurology at Northeastern University Medical School. I also have written and published extensively on the subject of pediatric neurology and the causes of cerebral palsy.
Q: Dr. Roe, you also have had an opportunity to review records in this case?
A: Yes. I have reviewed Mrs. Jones’ obstetrical and delivery records, Rebecca’s delivery records, and Rebecca’s records since her birth.
Q: Doctor, would you tell the members of the jury what Rebecca’s condition is at this time?
A: Certainly. Rebecca is now three years old and has problems that can be broken down into two categories: mental and physical. Mentally, she is severely delayed for her age. The average three-year-old is able to understand basic instructions, recognize familiar faces, and talk in sentences. Rebecca, on the other hand, does not follow any instructions, does not recognize anyone other than her mother and father, and cannot say more than five words. Testing has revealed her IQ is in the 50-60′s.
Now physically, a three-year-old should be walking and should have good fine motor control such as grasping with fingers. However, Rebecca cannot do any of these things; she is unable to even crawl and cannot grasp any objects with her fingers. She also cannot control her arms and legs. In sum, she suffers from severe mental deficits and cerebral palsy.
Q: Doctor, do you have an opinion about the cause of Rebecca’s physical and mental problems?
A: Absolutely. Rebecca’s physical and mental condition were caused by a severe injury to her brain that occurred during the one and one-half hours before her delivery. If she had been delivered within 30 minutes of the beginning of the severe fetal distress, I think she would be a normal three-year-old. But because Dr. Welby took a total of two hours to deliver Rebecca after the fetal distress began, Rebecca’s brain did not get the oxygen it needed for one and one-half hours. That was enough to cause severe and permanent death to parts of Rebecca’s brain.
Direct Examination of the Plaintiff’s Life Care Planner – Nurse Thomas
Q: Nurse Thomas, will you please tell the members of the jury what your qualifications are to testify in this case?
A: Yes. I am a licensed nurse who is trained in rehabilitation medicine. For 20 years, I worked on a daily basis with people who have severe mental and physical disabilities, assessing their medical and other care needs.
Q: Could you tell the jury what you mean by medical and other care needs?
A: Certainly. We all know what medical care is. It means care by doctors, nurses, and therapists to prevent sickness and treat medical conditions. Other care typically involves assistance with activities of normal daily living like bathing, dressing, eating, urinating, defecating and shopping.
Q: Now, in this case, have you had an opportunity to assess Rebecca’s future medical and other care needs?
A: Yes. I have reviewed all of Rebecca’s medical records and spoken with her treating doctors. I also have met with Rebecca and her parents at their home in order to assess Rebecca’s needs. I then prepared a written report outlining all of Rebecca’s future care needs and the cost of those needs.
Q: Nurse Thomas, would you tell the members of the jury what care Rebecca will need in the future?
A: Well, she will need to keep seeing a primary health care provider, such as a pediatrician and later an internist, at least twice a year for monitoring of general health and to prevent secondary illness. This costs $145 per year.
She also will need to continue seeing an orthopedist, and at least twice a year have routine x-rays to monitor her increased risk of scoliosis, hip dislocations, contractures, tightened tendons, and other skeletal abnormalities, and to initiate early intervention in the event that one or more of these conditions occur. This will cost $510 per year until age 16, and then $228 per year through life.
Rebecca also will need continued injections in both legs every six months to reduce spasticity. This costs $3,920 per year.
She also will continue to see a neurologist twice a year for the rest of her life to supervise medications and assess developmental progress once a year until the age of 16. This costs $460 per year to age 16, and then $230 per year for the rest of her life.
An ophthalmologist also is seen every year for early identification and treatment of eye problems. This costs $105 per visit.
Because of Rebecca’s condition, she and the family also would benefit from counseling for emotional support and guidance. The initial recommendation is for one year of family therapy, followed by six sessions per year until Rebecca is 21. The cost is $5,500 for the initial year, and then $750 each year until she is 21.
A case manager would be helpful for about 10 hours a year to assist in negotiating the health care system. Such a person ensures that all of the different healthcare providers coordinate their efforts and that the maximum benefits are obtained from each health care insurer or government benefits program. This would cost $750 per year.
Rebecca already receives physical, occupational, and speech/language therapy through her school. However, there is no therapy during vacation weeks. During such weeks, she should continue the therapy twice a week. This costs $3,960 per year until age 21.
Rebecca also needs the following equipment, supplies, and medication: manual wheelchair, power wheelchair, posture control walker with pelvic stabilizer, tumble forms tri-stander, orthotics, hand splints, wheeled bath chair, communication devices such as a Dynamite, a hospital bed with rails, therapeutic supplies, bed pads, diapers, non-sterile gloves, creams, lotions, wipes, Robinul, knee immobilizer, bath support, electrodes for E-Stim and an E-Stim unit. This costs between $7,880 and $9,022 per year.
Rebecca and her parents currently live in a small home in Baltimore. The home is not accessible for people with special needs. The family needs a ranch-style home with accessible bathrooms, ramps to and from all outside doors and over all steps inside, creation of an emergency exit from Rebecca’s room, appropriate flooring, a roll-in shower and widening of doorways and hallways. Such a home with renovations costs at least $218,194 in Baltimore.
Unfortunately, Rebecca will not be competitively employable. After age 21, she will need to participate in a day recreational program. With transportation, this costs $12,750 per year.
Because of Rebecca’s condition, she requires assistance with every aspect of her daily life. She cannot be left alone in the house even when she is sleeping because she cannot safely respond to an emergency situation. Currently, Rebecca’s parents cannot do simple errands, go to the supermarket or attend to their personal needs unless someone takes care of Rebecca.
Although all young children require constant supervision, most children by age 12 can be left alone for a short period of time, so from the time Rebecca is 12 years old she will require respite care for an average of 3 hours every afternoon and about 15 additional hours per week for evenings and weekends to allow her parents to do errands, chores, and recreational activities.
A live-in home health aide is the best solution if Rebecca can continue to live at home. This costs between $24,570 and $61,365 per year. If Rebecca’s family is no longer able to care for her, she would be forced to relocate to a group home which costs $60,565 per year.
Direct Examination of the Plaintiff’s Economist – Dr. Jones
Q: Dr. Jones, will you please tell the members of the jury what your qualifications are to testify in this case?
A: Yes. I have a Ph.D. in economics from Stanford. And for 20 years, I worked as an economist for the United States Government in the Department of the Treasury. I now am a Professor of Economics at State University. I also have published extensively on the subject of economics.
Q: Doctor, have you had an opportunity to assess Rebecca’s economic loss as a result of the negligence in this case?
A: Yes. I have reviewed Nurse Thomas’ Life Care Plan and also assessed how much lost income Rebecca has as a result of her condition.
Q: Doctor, what is Rebecca’s economic loss in this case?
A: If the negligence had not occurred, Rebecca would not need the medical and other care that Nurse Thomas has testified about. We know from Nurse Thomas that care totals between $24,570 and $61,365 per year if Rebecca lives at home, and $60,565 per year if Rebecca’s family cannot take care of her at home. According to the United States Government, Rebecca’s life expectancy is 69.7 additional years. Assuming she lives that long, and there is no reason to believe otherwise, and taking into consideration inflation and investment considerations, the present value of the total lifetime cost of Rebecca’s care is between $4,611,258 and $5,348,345. Those numbers do not take into consideration Rebecca’s lost wages that total at least $1,000,000, again taking into consideration inflation and investment considerations. Of course, none of these numbers take into consideration compensation for pain, suffering, and emotional distress which Rebecca and her parents also have suffered.
Q: So what is Rebecca’s total economic loss?
A: In my opinion, it is between $4,611,258 and $5,348,345.
Members of the jury, the tragedy of this case is that if Dr. Welby had simply ordered an emergency C-section—what the standard of care required—Rebecca would be a normal three-year-old today. Instead, she is severely physically and mentally disabled, has a lifetime of extraordinary medical and other care needs, and has enormous lost wages. For the rest of her life, she will require someone to take care of her. And she is relying upon you to make the right decision in this case.
You would not hesitate to find Dr. Welby responsible for an automobile collision if he drove through a red light and struck the car in which Rebecca was riding. Nor should you hesitate to find Dr. Welby responsible for “running the red light in this case.” The undisputed evidence during this trial has been that Rebecca was in grave fetal distress on the morning of her delivery; that the rule is that a baby be delivered within 30 minutes of the beginning of severe fetal distress; but that Dr. Welby actually delivered Rebecca two hours after her fetal distress began.
In this case, you must award compensation for Rebecca so that she will have the best medical and other care that money can buy. And an appropriate amount is $5,348,345 for the economic loss and another $1,000,000 for pain and suffering. Thank you.