The month of March was a watershed month for all of us, in so many ways. The fear of the coronavirus permeating our society; the new home-bound existence most of us entered; children being locked out of their schools and playgrounds; parents trying to learn how to be teachers; and, tragically, the beginning of the daily and rapidly increasing list of illnesses and death.
And, of course, the impact on the economy. Businesses stopping and stores closing. Uber drivers losing their livelihood. The number of unemployed climbing to Great Depression levels. Rising bankruptcy failings. Trillions of dollars pumped into the economy by the U.S. government.
In the midst of these huge impacts on our lives, it may seem trivial to worry about one small part of it: medical malpractice lawsuits. Yet, it is such lawsuits that help to keep healthcare up to its highest standards and that allow compensation for those who have suffered catastrophic losses not of their own making.
As malpractice attorneys representing injured patients, we are adjusting to the new realities. Most courts, including those in King County, have canceled all civil jury trials through early July. It is certainly possible the closures may extend for months after that.
Apart from the current lock-down, one of the problems is finding enough jurors who would respond to a jury summons by venturing to a courthouse. As a general matter, there is no real enforcement of the jury summons, because enough people show up to allow juries to be convened. It seems unlikely, as long as there are fears of the virus spread, that the government would compel people to attend trials where the jurors sit side-by-side in the jury box.
Under both the U.S. and the Washington State constitutions, either party to a civil trial has a right to demand a jury. Both parties can stipulate to a trial before a judge, but in most cases the defendant health care providers will insist on a jury trial (that was true even before the pandemic).
There has been speculation about devising means of having jurors in remote locations connect electronically to a courtroom, but apart from the complexity of doing that, some lawyers think the jury requirement in the constitution requires a face-to-face ability to make your case before a “jury of your peers.” Jurors participating electronically would also be less able to judge witness’ credibility through demeanor.
During whatever period of time will be required to return to some form of normalcy and once again convene jury trials, the pressure on defendants’ insurance companies to settle cases will likely decrease. After all, insurance companies are usually in no hurry to pay out money to injured claimants.
The usual pre-trial steps have also been impacted, but here the electronic revolution has worked reasonably well. Depositions are being taken through video-conferencing, and even mediations (settlement conferences) can be done by using Zoom and GoToMeeting and other such apps. I have now participated in two such mediations, with a half-dozen participants being scattered around the state but connecting through the screen.
Covid-19 is impacting medical malpractice lawsuits. What might the future hold for medical malpractice cases?
A final concern for plaintiff’s medical malpractice attorneys is juror attitudes. The front-line health-care providers in our hospitals are being rightly hailed as heroes, risking their lives to help COVID-19 victims. The concern is that this will make it harder for a jury to find against a physician who is negligent and injures a patient.
Of course, logically that heightened appreciation for COVID-19 doctors and nurses should not be extended to all providers, such as dermatologists, surgeons, urologists, and other such specialists. Nor should it impact claims of systems errors or corporate negligence on the part of hospitals and clinics. As time goes by and we are hopefully able to return to a normal civil legal system, we will be able to assess whether these long-term concerns are well-founded or not. In the meantime, we are doing our best to continue representing our clients and obtaining justice for them.
