We Have Won Your Medical Malpractice Case. Now What?

Pasadena - After an expensive and hard fought trial, the jury has found in your favor and rendered an adequate award. You think this is the end of the ordeal and time to get on with your life. Unfortunately, many times this is just the start of a new ordeal with attacks on your judgment and your lawyer.

Attacks on the Money Award

The jury has heard the evidence and awarded you $1,000,000 for your pain and suffering. You would gladly return that money if you could avoid half of the pain you have endured for the past few years and for the rest of your life. Unfortunately, although a jury of your peers said you deserve that money, your $1,000,000 award will be reduced, by law, to $250,000.

Medical Malpractice

Pursuant to Civil Code §3333.2(b), the maximum amount of money a plaintiff can recover in a medical negligence lawsuit is $250,000. That has been the law in California since 1975 when the so-called “Medical Injury Compensation Reform Act” was passed by a politically pressured legislature. To make matters worse, that $250,000 is not inflation adjusted so the economic value of $250,000 is a fraction of what it was in 1975.

Additionally, under California law the jury is not told about the damage award cap. Like you, they are shocked when they learn that their decision is ignored and the doctors and the insurance companies are protected by law.

The jury has also awarded you $1,000,000 for your loss of income and future medical expenses as a result of the injuries you received at the hand of the negligent healthcare provider. Once again, the healthcare providers are protected by law. Pursuant to Civil Code §667.7, upon application by the defendant post-verdict, the economic damages (loss of domestic services, loss of income, future medical expenses, etc.) can be reduced to periodic payments.

The trial judge has considerable discretion concerning the structure of a periodic payment schedule but the end result is you do not get the money that the jury awarded at the time the jury awarded it. Again, the negligent health care provider has the economic benefit of a payout over time as opposed to a lump sum the jury awarded all to the detriment of the medical malpractice victim.

Attacks on the Verdict

After the jury has rendered its verdict, many times the defendant will ask the court for a new trial. The grounds for new trial are specified in Code of Civil Procedure §657. There are seven different grounds for new trial: irregularity in the proceedings, misconduct of the jury, accident or surprise, newly discovered evidence, excessive or inadequate damages, insufficiency of the evidence to justify the verdict and/or error in law.

Since there has never been a perfectly tried case, there is always some anomaly, problem, surprise, or just plain strangeness that occurs during the course of the trial that the defense will seize upon.

The losing defense attorney, often with the assistance of appellate counsel, will pour through the record to try to come up with some argument that the defendant did not receive a fair trial and should be allowed to try his case a second time with a different jury.

In a recent case, defense counsel went so far as to hire a private investigator to contact the jurors and interview them to discover whether any improprieties had taken place during juror deliberation. This is, in essence, a fishing expedition by the defense to try and find a disgruntled juror who will give a declaration that some irregularity took place during deliberations. Armed with such a declaration, defense counsel hopes to persuade the judge that the verdict is invalid and should be thrown out regardless of the trial record.

In that recent case, the contacted jurors were so offended by the attempt that none of them agreed to speak with the private investigator. This practice is questionable, but legal in California.

This recent example illustrates the fact that the losing defendant will go to extreme lengths to defeat a plaintiff’s verdict. The defense has the money and the manpower to conduct such investigations, something most plaintiffs’ counsel lack.

It should also be remembered that judges, like all of us, have biases and prejudices in the way they see the evidence and law. The reputation and skill of your attorney is paramount with not only getting your verdict but keeping it. If your attorney has a good reputation and has skillfully presented your case to a jury that has rendered a verdict in your favor, most judges will be hard pressed to let their biases, conscious or otherwise, influence their decision whether they are going to grant a new trial and/or reduce the award.

The Granting of New Trial and/or Remittitur

After the defense attorneys have submitted their motion for new trial and made their argument, the trial court must then decide whether one or more of the seven specified grounds for new trial have been met and, if so, grant the request for new trial.

If the motion for new trial is granted, the judgment is vacated and a date is set for a new trial. This is a great victory for the defense in that they get a “second bite of the apple” and they have a lot more money than you do to retry an expensive case.

In some instances, the court may deny the motion for new trial but find that the jury has awarded excessive damages. If the court so finds, the court will order the plaintiff to take a lesser amount which the court deems to be reasonable and, if plaintiff refuses, the court will order a new trial. This is called a remittitur.

If the plaintiff accepts the remittitur, judgment is entered in the lesser-specified amount. If the plaintiff refuses to accept the remittitur, a new trial is ordered either in total or on the damage issue. Plaintiff may appeal the judge’s ruling but, if the appeal is lost, the only remedy then is the new trial.

In a recent case the court denied the motion for new trial but granted the defense request for remittitur, which reduced the economic damages by $238,000. This was after the court had reduced the non-economic damages from $3,400,000 to the $250,000 statutory limit under Civil Code §3333.2.

In that case, the plaintiff/widow and her children were the victims of a negligent doctor, a politically pressured legislature, and the trial court whose remittitur decision was based upon an erroneous recollection of the trial record.


The above discussion highlights some of the benefits of settling cases. Settlement brings finality. But, if you cannot settle and you find yourself in trial, getting the verdict may be just the first step. Be sure your attorney knows not only how to get the verdict, but how to keep it and maximize your recovery to compensate you for the injuries.

Photo credit: Gavel / CC BY-SA