judgement in favor of the plaintiff |criminal law
The very first step in the legal process is to file a claim. The plaintiff must draft a complaint that details the legal issue, the harm and the injury suffered by the patient. The complaint will also include requested damages or how much compensation the plaintiff wants. The complaint must be filed with the court in the proper jurisdiction. This is commonly either a county or state jurisdiction. After the complaint is filed with the court, it must be served on the party being sued (the defendant).
The defendant then has a specific number of days to respond and file that response with the court. If the defendant does not file a response, the court will issue a judgement in favor of the plaintiff without a trial. Next, when the defendant responds, he or she may include a counterclaim, a legal claim they are suing the plaintiff for arising from the same action. For example, in an action resulting from a car accident, the plaintiff may sue claiming the defendant ran a red light and caused the plaintiff’s injuries; the defendant may in turn allege the same thing against the plaintiff. This is a counterclaim against the plaintiff.
Different jurisdictions may require different filings, but in general, the next step is the discovery process. Discovery is how both parties gain more information before the trial. The discovery process involves requested, detailed information about all the witnesses and any other evidence that will be presented at trial.
After discovery, but before the trial, either party can file a motion with the court. A motion is simply a request made directly to the court on a matter of procedure. These requests can be as simple as a clarification of evidence or as complicated as excluding a specific piece of evidence. Motions are very common and are used frequently throughout the pre-trial process and preparation.
Skipping through some complicated procedural issues will bring us to the trial and its detailed process. If the plaintiff has requested a jury trial, then both sides must participate in jury selection. In a jury trial, the judge still presides over the proceedings, but the jury must hear evidence and issue a verdict. The judge decides the law, and the jury decides the facts. Jurors are selected through a time honored process called voire dire. That is French for “speak the truth.” The voire dire process begins by the plaintiff’s attorney and the defendant’s attorney asking all jurors questions to determine if there are any conflicts or other reasons they should not serve as jurors. Through a series of questions or challenges, jurors are either selected or eliminated. After the jury is selected, the trial can begin.
In a civil case, a legal case that is not about a crime, the burden of proof is known as a preponderance of the evidence. This is a way of saying “more likely than not.” This means that a jury needs to reach the conclusion that, more likely than not, the defendant is guilty of the action and injury claimed by the plaintiff.
This is in contrast with the criminal standard of prosecution. The burden of proof for the criminal trials is beyond all reasonable doubt. This means that a jury must be convinced that the defendant committed the crime before convicting him or her.
In a civil jury trial, both sides present evidence to support their case. Both will present opening statements to the jury followed by the examination of witnesses. Again, both sides will present witnesses and evidence to the jury. There are many different types of evidence that may be presented. Either side may present direct evidence, demonstrative evidence, documentary evidence, or sometimes hearsay evidence.
The plaintiff will present his or her case and then the defendant will respond. The defendant may be able to raise a valid legal defense that shifts responsibility back to the plaintiff. Some of these defenses include, but are not limited to assumption of the risk, contributory negligence, good Samaritan laws, statute of limitations, and specific immunity.
After the defense team presents their witnesses and evidence, both sides have an opportunity to make closing statements to the jury. At the conclusion of closing statements, the judge will instruct the jury on the deliberation process. The jurors must evaluate the facts that were presented, and they must agree on the verdict. The jury must also determine what, if any, monetary damages the plaintiff will be awarded. At the conclusion of the deliberations, the jury issues a verdict in favor of either the plaintiff or the defendant. Both sides have an opportunity to appeal if they do not agree with the final verdict. That would begin an entirely new legal process.
UNIT x STUDY GUIDEle
Patient Consent
Many negligence claims that follow the legal process above are based on a claim of improper patient consent. Patient consent is not as easy as just saying yes or no. There are many layers that can be confusing to both patients and providers.
Providers are required to get informed consent from a patient. What constitutes informed consent varies by individual situation. Informed consent can be written, implied, or granted by statute or court order. For patients who are being admitted for either outpatient or inpatient procedures, informed consent is usually obtained before the patient is prepped for his or her procedure. For patients who are being admitted to the emergency room, the situation can be quite different.
For example, a patient walks into the emergency room, and he appears to be having problems breathing. This patient, however, is from an eastern European country and is visiting on a tourist visa. The patient is alone. The emergency room staff is trying to get information in order to triage the patient. They are also trying to provide informed consent for him to be treated. The staff, however, cannot confirm if the patient understands the treatment they are trying to provide him. They must first determine the language he is speaking and then find an appropriate interpreter in order to effectively communicate with the patient.
Another issue around informed consent is implied consent and its application in non-emergency situations.
A patient is brought to the emergency room in an ambulance. The patient is unconscious but the emergency medical technician (EMT) says it is because he is passed out due to drinking. In fact, the EMT has brought this patient in many times before. The patient is brought to the emergency room to sober up. The EMTs have checked all his vitals, and there are no obvious wounds. Since the patient is not conscious and not in an emergency situation, this would be a scenario of implied informed consent.
In emergency and non-emergency situations when the patient is unable to communicate, the law favors the provider and implies consent. The law operates under the assumption that most people would want treatment even if they cannot ask for it. This is the idea of implied consent. Providers are given limited power to treat a patient under the doctrine of implied consent. This implication stops, however, when either the emergency situation is stabilized or the patient is able to communicate his or her wishes again.
As we have discussed, there are many different scenarios regarding informed consent. Another complication that can arise involves who is authorized to provide consent. Patients under the age of 18 need a guardian, but a young age alone does not prohibit an underage patient from providing his or her own consent. A 16-year-old can sometimes be competent enough to provide consent, while a 32-year-old disabled patient may not be able to do so.
Informed consent is a very complicated topic because it relies on many different factors taken together in various combinations. Informed consent generally requires that patients are provided information about the diagnosis; the risks, benefits, reasonable alternatives to treatment; and the provider who will treat them. These factors can be very subjective, and a miscommunication during the informed consent process can lead to litigation.
This can be further complicated by a patient’s ability to refuse treatment. Patients can refuse a particular procedure, method, or even refuse treatment altogether.
In conclusion, informed consent, as we have read and discussed, is about more than having a patient sign a form. It is about ensuring that the patient understands the nature and extent of any treatment to be provided. This can be complicated by language, cultural barriers, religious objections, and the competency levels of the patients themselves.
