Innov Clin Neurosci. 2025;22(10–12):86–87.

by Justin Pope, JD

Mr. Pope is Associate Director of Risk Management at Professional Risk Management Services (PRMS).

FUNDING: No funding was provided for the preparation of this article.

DISCLOSURES: The author is an employee of PRMS. PRMS manages a professional liability insurance program for psychiatrists.

ABSTRACT: This ongoing column is dedicated to providing information to our readers on managing legal risks associated with medical practice. We invite questions from our readers. The answers are provided by PRMS (www.prms.com), a manager of medical professional liability insurance programs with services that include risk management consultation and other resources offered to health care providers to help improve patient outcomes and reduce professional liability risk. The answers published in this column represent those of only one risk management consulting company. Other risk management consulting companies or insurance carriers might provide different advice, and readers should take this into consideration. The information in this column does not constitute legal advice. For legal advice, contact your personal attorney. Note: The information and recommendations in this article are applicable to physicians and other healthcare professionals so “clinician” is used to indicate all treatment team members.

Introduction

In Part 1 of this series, you had just been served with notice of a lawsuit. The first two steps of the litigation process, the summons and complaint and the answer, were described. Important risk management tips were offered, including:

• Contacting your professional liability insurance company right away;
• Not discussing your case with anyone other than your attorney and professional liability insurance company representative; and,
• Not making any alterations to your records.

Part 2 of this series explored the discovery process, motions, and whether to settle or defend a claim. Important risk management tips included:

• Being honest with your defense attorney;
• Following your defense attorney’s guidance;
• Providing specific treatment information and forwarding copies of treatment records to your attorney; and
• Preparing and reviewing your deposition testimony with your defense attorney.

In Part 3 of this series, you heard opening statements from plaintiffs and defense counsel. You were also called to the stand to provide testimony, and you weathered cross-examination. Important risk management tips were offered, emphasizing the importance of the following:

• Preparing for testimony with your defense attorney;
• Engaging the jury by directing your answers to them;
• Listening closely to the question being asked of you and answering only that question;
• Understanding your appearance, mannerisms, and patterns of speech can influence the jury; and
• Being an attentive defendant and assisting your attorney by listening for erroneous statements and suggesting questions for experts.
• In this article, we will cover the final stages of the litigation process.

Closing statements

The closing statement is a summation of the evidence that has been presented and the relationship of the evidence to the issues in the case. The attorneys for each side will also summarize the evidence presented by the opposing side and how they think the other side has failed to establish its case. Contrary to the view created by movies and television, trials are not won by dramatic closing arguments. Thorough pretrial preparation and the effective presentation of witnesses and exhibits at trial win a lawsuit.

Jury instructions and deliberations

After closing statements, the judge will give final instructions to the jury about the law and the procedures they should follow during deliberations. These instructions or “charges to the jury” are guidelines for the jury in applying the substantive law to the contentions of the parties and the evidence presented. Attorneys for each side may submit requests to the judge for charges to the jury.

The jury is then given a verdict form to complete and dismissed for deliberations, where they will decide on liability. The form asks the jury to answer specific questions that thereby resolve the basic issues of fact in the case. The jury selects a foreperson to lead these discussions, and depending on the state, either all jurors or a specific majority of jurors must come to an agreement.

Verdict

After the jury returns from deliberations, they announce the verdict or the conclusions they have reached on the defendant clinician’s liability and any potential damages which they believe should be awarded to the plaintiff.

Judgment

However, the jury’s verdict is not the court’s final decision. Taking into account the jury’s verdict, the judge is responsible for entering the court’s ultimate determination regarding the respective rights and claims of the parties, known as the judgment. The verdict amount is what a jury thinks the plaintiff should be paid, but a judge can reduce the verdict amount or set it aside when entering a judgment. A judge can even reverse the jury’s verdict when it is obvious that the verdict was not supported by the facts.

Appeals

After the trial court judge has rendered a judgment, a party (but typically the party against whom the lawsuit has been decided) may ask an appellate court to review the proceedings to determine whether the trial court committed an error that adversely affected the outcome of the case. An appeal is not a retrying of the case. A party may not appeal solely because it disagrees with, or is disappointed by, the outcome of the trial or believes it to be unfair or unjustified.

In an appeal, the appellant (the party pursuing the appeal) must specify what errors it believes the trial court made that negatively impacted the verdict. Examples of this might be an assertion that the trial court erred in allowing certain testimony to be heard or that certain evidence should not have been admitted. The appellate court then reviews the trial court record to determine whether the alleged errors did in fact occur and whether the errors may have prejudiced the outcome of the trial. If the appellate court finds prejudicial error, it can vacate the trial court’s ruling and order a new trial or, as a matter of law, order the entry of a different judgment.

No trial is perfect; errors will be made by all parties involved. An appeal only comes into play if the error(s) made were likely to have had a significant influence on the outcome of the trial. As appeals are very costly and time-consuming, parties must carefully consider the potential for success on appeal before undertaking this action.

Conclusion

By definition, a lawsuit is an adversarial process which will be unknown and unfamiliar to a clinician facing their first lawsuit. During this process, clinicians must manage significant personal and professional stressors and remain engaged in their defense. Although lawsuits can be unnerving, clinicians should keep in mind that effective risk management techniques, such as proper documentation, good communication with patients and colleagues, and meeting the standard of care, provide the basis for evidence that will support a defense in the event of a professional malpractice lawsuit.