Russell X. Pollock gave a presentation on Closing Arguments and Post Trial Motions at the Massachusetts Continuing Legal Education (MCLE) seminar on Trying Your First (and next) Civil Trial in the Superior Court. Topics he presented include Closing Arguments, the Verdict Form, Questions During Deliberations, Jury Instructions and Post Trial Motions included Motions for a New Trial, JNOV, Remittitur/Additur and Relief from Judgment. To review the PowerPoint slides used during the presentation, please go to our Publications and Presentation page.

Scott M. Heidorn and Russell X. Pollock gave a presentation of the new Health Payment Reform act to the Professional Liability Committee of the Boston Bar Association on January 25, 2013. With respect to medical malpractice litigation, changes to the law include: a 182 day “cooling off period” before filing an action so the parties can exchange information; an increase in the charitable immunity cap for nonprofit health care providers to $100,000; a provision that apologies by medical care providers are inadmissible during the case, unless they are contracted by the defendant or defendant’s expert; a provision requiring a full written disclosure of any significant “unanticipated outcome” suffered by the patient; and a reduction of prejudgment interest (except in wrongful death cases). To review an article containing a summary of the portions of the statute relating to medical malpractice litigation, please go to our Publications and Presentation page.

In a typical wrongful death case, a plaintiff must prove that the negligence of defendant more likely than not caused the decedent’s death. In a medical malpractice case, an individual may start out with a chance of survival less than 50% because of his or her medical condition. If the medical care provider’s negligence further reduces the individual’s chance of survival, a plaintiff can still recover under what is called the loss of chance doctrine. The rationale for permitting recovery in these circumstances is that a person’s prospects for surviving a serious medical condition is something of value, even if the possibility of recovery was less than even, prior to the physician’s tortious conduct. The Massachusetts high court has recently expanded the scope of this doctrine broadening the circumstances when such a case can be brought.

Damages in a loss of chance case will be proportional to the harm caused by the medical care provider’s negligence. The judge will ask the jury to calculate damages as follows:

(1) Calculate the total amount of damages allowable for the wrongful death statute (i.e. $6,000,000).

(2) Next calculate the patient’s chance of survival before the medical malpractice (i.e. 45%).

(3) Then calculate the chance of survival that the patient had as a result of the medical malpractice (i.e. 15%).

(4) Then subtract the two amounts (i.e. 45% – 15% = 30%).

(5) Then multiply that amount by the total damages to arrive at the damages for the loss of chance. (i.e. $6,000,000 x 30% = $1,800,000).

Time will tell whether the loss of chance doctrine will be expanded beyond medical malpractice wrongful death cases.