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This glossary defines the terms that are frequently used in medical liability litigation.

A B C D E F H I J L M N O P Q R S T V W

A

Acquittal: A legal decision that a party is absolved of an alleged liability or obligation.

Admissible evidence: Any facts, data or records that can legally be allowed to be introduced into a trial to support the assertions of either the plaintiff or defendant.

Admonish: A warning, reprimand or rebuke issued by the court to legal counsel concerning some aspect of counsel’s practice in regard to a case.

Adverse witness: A witness called to testify by one party in a lawsuit who is supportive of the assertions of the opposing party.

Affidavit: A written statement of facts, sworn to by the party making it, in the presence of an authorized official.

Affirmed: A decision by an appellate court upholding or confirming a decision issued by a trial court.

Allegation: The written assertion, claim or statement of a party bringing an action, setting out what the party intends to prove in court.

Alternative dispute resolution: A method of resolving a dispute without a formal trial. The most common alternative methods are: arbitration, conciliation, mediation and settlement.

Answer: A formal written statement, in which a defendant responds to each allegation presented in a complaint.

Answers to interrogatories: A formal written statement in which a party in a lawsuit responds to questions presented by the other party in an interrogatory. The responses are often accredited by a notary public or other authorized individual.

Appeal: A legal process in which one party in a lawsuit requests that a higher court review a decision issued by a lower court.

Arbitration: A process in which all parties in a lawsuit agree to present the case to a third party for evaluation.

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B

Bench trial (also, court trial): A trial in which a judge, rather than a jury, hears a case and issues a verdict.

Breach of contract: Failure to perform or satisfy the terms of a legal contract.

Brief (also, memorandum of law): A written presentation by an attorney summarizing a case and describing how certain laws apply to the facts of the case.

Burden of proof: A law of evidence referring to the necessity to affirmatively prove the facts that are in dispute. The obligation of a party to prove by evidence, to a required degree of belief, the fact in dispute. Also pertains to which party bears the responsibility of positively proving their case.

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C

Causation: The fact of being the cause of some event or result.

Cause of action: The set of facts that allow a person to seek a remedy in a court of law.

Caveat: An admonition, warning or word of caution.

Certiorari: A legal method for requesting that an appeals court review a decision issued by a lower court. If the appellate court agrees to the review, it grants a writ of certiorari.

Challenge: An objection of an attorney to an action taken by the opposing attorney.

Chambers: A judge's private office. A hearing may take place in chambers if the issues being discussed should not be heard by the jury or the public.

Change of venue: The legal action of moving the geographical location of a trial from one city or community to another.

Charge to the jury (also, instructions): The instructions that a judge provides to a jury prior to deliberation regarding the laws that are applicable to the case being considered. 

Claim: A legal demand from one party that another party pay monetary compensation for an alleged damage. (Note:  This legal definition differs from the definition of a claim under your professional liability insurance policy. Please refer to the "Definition" section of your policy for an explanation of a "claim" made against your policy.)

Comparative negligence: A rule of law allowing negligence to be measured by percentage and damages to be awarded proportionately based on the amount of negligence that is attributable to the defendant.

Complaint: The legal document through which a plaintiff initiates a civil lawsuit. The document includes a brief statement of the facts, why the plaintiff is seeking relief and the type of relief being sought.

Consent: A voluntary agreement to accept the request of another person or to allow another person to take a particular action.

Contempt of court: Deliberate violation of an official court order or the instructions issued by a judge during a trial.

Continuance: A postponement and rescheduling of legal proceedings until a later date.

Contribution: Under this principle, a defendant against whom a judgment has been rendered has the right to recover a pro rata share of the judgment from other defendants who were also determined to liable to the plaintiff.

Contributory negligence: A rule of law stating that if a plaintiff’s actions or omissions contributed to the cause of injury, recovery of damages from the defendant is barred.

Corroborating evidence: Additional evidence that reinforces or validates initial evidence.

Counter-claim: A claim presented by a defendant in opposition to a plaintiff’s claim.

Cross-claim: A claim a defendant files against another defendant.

Cross-examination: The phase in a trial during which an attorney questions a witness who is testifying for the opposing party.

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D

Damages: A pecuniary award that may be recovered in the courts by any person who has suffered loss, detriment or injury, whether to his person or property, through the unlawful or negligent act or omission of another. This includes compensatory and non-compensatory damages.

Decision: The opinion of the court that brings a case to a close.

Default: A failure by a defendant to appear and respond to a summons and complaint.

Defendant: The person or institution against whom a claim is directed and from whom relief is sought by the plaintiff.

Deposition: Testimony taken under oath prior to trial from witnesses or parties involved in a claim. During a deposition, attorneys for both sides have an opportunity to question individuals to gather information that can be used in the trial. Testimony is recorded by a court stenographer.

Directed verdict: If a plaintiff fails to present proper evidence to the jury in support of the facts, the judge may order a verdict without jury consideration.

Discovery: Pretrial devices or methods for obtaining information about a case. The discovery process includes interrogatories, depositions and requests for admission.

Dismissal: The termination of a lawsuit.

Diversity jurisdiction: The authority of a federal court to hear lawsuits involving parties from different states when the claim amount is more than $75,000. Federal subject matter jurisdiction exists in cases where the opposing parties are citizens of different states. "Citizenship" is synonymous with "domicile," and there must be complete diversity of citizenship, i.e., all plaintiffs must be citizens of different states than all defendants.

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E

Economic damages: An award to compensate the injured party for the monetary injuries sustained, including past and future wage loss, past and future medical expenses, and other costs directly incurred or expected to be incurred in the future as a consequence of the negligent act.

Exhibit: Any records, documents or physical items introduced as evidence during a deposition or trial.

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F

Finding: A formal decision by a judge regarding an issue of fact.

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H

Hearing: A proceeding that is usually less formal than a trial, which considers issues of law or fact.

Hostile witness: A witness whose testimony is unfavorable to the case of the party that called him or her. Such witnesses may be asked leading questions and may be cross-examined by the party who called him or her.

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I

Impeachment of a witness: Introducing evidence to attack the credibility of a witness. For example, if a witness provides information during trial testimony that conflicts with deposition statements, an attorney may use the discrepancy to question the person’s veracity.

"I’m Sorry" clause: A law providing that an expression of regret or apology made by a physician is inadmissible in demonstrating liability or fault. However, keep in mind that anything else said during the conversation is admissible.

Inadmissible: Any fact or information that cannot legally be received or admitted as evidence in a trial.

Indemnify: To restore the injured party, in whole or in part, by payment of restitution or damages.

Indemnity: A collateral contract or assurance under which the responsibility for making a liability payment for a loss is shifted from the one held legally responsible to the provider of the contract.

Informed consent: A patient’s permission for a physician to undertake a particular procedure or treatment based on information the patient has received about the risks, benefits and alternatives. The doctor must provide that information that a “reasonably prudent person” (reasonable person) would require to make an intelligent decision about whether to undergo the procedure or treatment.  

Instructions (also, charge to jury): A judge’s explanation to a jury of the laws that apply to the case the jury is about to deliberate.

Interrogatories: Used during the discovery process, these are a set of written questions submitted to a party in a lawsuit.

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J

Judgment: The official decision of a court regarding a claim submitted for its consideration.

Jurisprudence: The philosophy or science of law.

Jurisdiction: Refers to the power of the court to decide a case (i.e., to render a decision that will be recognized and enforced by authorities and other courts). Jurisdiction is of two types; personal jurisdiction and subject matter jurisdiction, and a court must have both types before it has jurisdiction to decide the case. 1) Personal jurisdiction refers to jurisdiction over the parties and relates to the question of whether someone from another state can be forced to come to the state where the lawsuit was filed (the “forum state”) to defend against the lawsuit. The existence of personal jurisdiction depends upon whether there is a sufficient connection between the defendant and the forum state to make it fair to require defense of the action in the forum. 2) Subject matter jurisdiction refers to whether a particular court has the power or competence to decide the kind of controversy that is involved in the litigation. Each state has its own judicial or court system within which there is a trial court of general jurisdiction. The subject matter jurisdiction of a state trial court is determined by the state constitution and/or statutes.

Jurisdictional amount: The jurisdiction of the trial court is commonly limited by a constitutionally or statutorily set amount.

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L

Leading question: A question posed by an attorney that implies the desired answer. Attorneys generally may not ask leading questions of their own witnesses, but may be permitted to ask them of hostile witnesses and during cross-examination.

Litigant: Any of the parties involved in a lawsuit.

Litigation: A lawsuit or legal action and all the events and activities related to it.

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M

Malpractice: Professional negligence. In medical malpractice claims, plaintiffs typically must prove: 1) the physician's duty to the patient; 2) violation of a standard of care; 3) an injury for which compensation can occur; and, 4) demonstration of a causal relationship between the violation of the standard of care and the alleged harm to the patient.

Mediation: A process by which parties in a dispute work with a professionally trained mediator (third party) who helps them come to a mutually agreeable solution or resolution.

Mistrial: A trial that is determined to be invalid because of a fundamental error in the application of some aspect of the legal process. This may also refer to a trial that is terminated prior to its normal conclusion. The trial judge can declare a mistrial due to either some extraordinary event or prejudicial error that cannot be remedied at trial or because of a deadlocked jury.

Motion in limine: A motion by an attorney requesting that certain potentially prejudicial information be barred from presentation during a trial.

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N

National Practitioner Data Bank: Administered by the Department of Health and Human Services, this database contains the following information about physicians: 1) medical malpractice payments made; 2) disciplinary actions affecting licensure taken by state medical boards; and, 3) adverse professional review actions by hospitals and professional societies.

Negligence: In medical malpractice claims, failure to exercise the conduct that a reasonably competent health care provider (reasonable person) with similar training and experience would exercise in the same circumstances. The standard by which the physician is to be judged is typically described by a qualified medical expert.

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O

Objection: The legal provision allowing one attorney to protest a statement or procedure of another during a hearing or trial. The judge will either sustain (accept) or overrule (reject) the objection.

Overrule: A judge's decision to reject an objection made by one attorney in a trial.  Also, the decision of a higher court that a lower court ruling was incorrect.

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P

Perjury: Making a knowingly false assertion while under oath. Perjury is a criminal offense.

Plaintiff: The person who initiates a legal action and whose name is on the record.

Pleadings: The written statements of fact and law filed by the parties in a lawsuit.

Preponderance of the proof: The standard of evidence in a civil trial. Meeting the standard requires that the evidence as a whole demonstrates that the fact being proved is more probable than not.

Pretrial conference: A conference between opposing attorneys and a judge that may be called by the court prior to trial to determine the issues to be tried and to discuss any potential for settlement. 

Pro Se: Acting for oneself; appearing in court without an attorney.

Punitive damages: A monetary award granted to the plaintiff as punishment against the defendant.

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Q

Quash: The action of a judge that voids a summons, subpoena or other court order.

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R

Reasonable person standard: The "reasonable person" test may be applied to both the doctor’s decision regarding the best course of care for a patient and the patient’s decision regarding whether to consent to the recommended course of care. The jury is informed that: 1) There is no negligence if the doctor's treatment of the patient was the same as that which would have been provided by a reasonably competent physician with similar training and experience and under similar circumstances. 2) If the patient gave informed consent for a procedure, the doctor is not liable for the patient’s injury if a reasonable person would have consented if properly informed.

Record: All the evidence, documents and transcripts of a case.

Remand: The action of an appellate court that sends a dispute back to the original court to conduct proceedings that are in line with the higher court's ruling.

Request for admission: A method of discovery in which written statements of facts are provided to the opposing party, and the party is required to admit or deny the facts. The agreed upon facts may be introduced into the record without either side having to produce evidence supporting the facts.

Request for production of documents: A request by one party in a legal action to another party to produce specified documents for review.

Reverse: The action of a higher court revoking a lower court decision.

Reversible error: A procedural error during a hearing or trial that is harmful enough to justify a reversal of a lower court ruling.

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S

Settlement: An agreement by which the parties in a lawsuit terminate their dispute; usually by one party making payment to the other.

Sidebar: A conference held in the courtroom between the judge and attorneys, but out of the hearing of the jury and court spectators.

Standard of care: The law of negligence; that degree of care that a reasonably prudent person (health care provider) should exercise under the same or similar circumstances.

Stay: A court order halting a judicial proceeding. 

Summary judgment: A decision reached by the court prior to a trial regarding a matter of law and related to an issue about which the facts are not in dispute.

Subpoena: A court order instructing a party to provide certain relevant documents to the other party or informing a person of a legal obligation to appear to give testimony under oath.

Summons: A court order informing a person that he or she has been named in a legal action and requiring him or her to appear to answer the complaint.

Sustain: A judge's decision to accept an objection made by one attorney during a trial.

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T

Testimony: Statements made under oath by a witness in a court case, usually in response to questions by an attorney.

Third-party complaint: A paper filed by a defendant asserting that a third party (who is not part of the current claim) is liable for all or a portion of any damages the plaintiff wins from the defendant.

Tort: A civil wrong in which one person has violated a duty to another. The person may seek a damage award if he or she can demonstrate that the legal duty was owed, that the defendant breached the duty and that he or she was injured as a result of the violation.

Transcript: A word-for-word written account of everything that was said in a hearing or trial.

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V

Venue: The geographical area in which a trial may be held.

Verdict: The formal declaration of a decision made by a jury concerning the matters submitted for its consideration. 

Voir dire: A hearing or series of questions to establish whether a witness or expert witness has the competency and/or qualifications to testify regarding the facts. Also refers to questions asked of potential jurors before trial to determine whether they are qualified to serve as jurors.

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W

With prejudice: A judgment negating the right of a party to bring another action related to the same cause.

Without prejudice: A judgment that does not negate the right of a party to bring another action related to the same cause.

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