9.4 Witnesses and Other Proof

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

9.4 WITNESSES AND OTHER PROOF

9.401 Deciding Which Witnesses to Call. As in all cases, the plaintiff must be certain to establish a prima facie case on each theory of liability. It is therefore imperative to analyze before trial what evidence to introduce and which witnesses to use to ensure that each fact necessary to prove the cause of action is in evidence when the plaintiff rests. Malpractice trials often require that critical facts be proved through health care provider witnesses. These witnesses will often resist making statements helpful to the plaintiff through the artifices of selective or nonexistent memory, evasive responses, or even perjury. They will also be ready to volunteer testimony harmful to the plaintiff. For these reasons, counsel must carefully consider whether to call a health care provider witness and the drawbacks of placing him or her on the stand.

9.402 Alternatives to Calling a Witness. In weighing whether to call a witness, counsel...