You asked if any states require a bifurcated trial for medical malpractice cases.

SUMMARY

According to the National Conference of State Legislatures, no state specifically requires a bifurcated trial for all medical malpractice cases. But it appears that most, if not all, states allow a judge to bifurcate such actions. The Federal Rules of Civil Procedure allow it under Rule 42(b). Connecticut statutes and court rules also permit bifurcation (CGS § 52-205; Practice Book § 15-1).

A computer search indicated that some states’ laws or court rules encourage or specifically require bifurcated trials in certain situations. Missouri requires bifurcation in cases tried before a jury that seek punitive damages. Two states (New Jersey and Arkansas) require a bifurcated trial if a party requests it. In which case, compensatory damages will be determined in the first phase and punitive damages, if any, in the second. New York court rules encourage judges to bifurcate liability from damages in personal injury cases.

We found several cases in other jurisdictions that provide support for bifurcated trials in medical malpractice suits. These cases found that separating questions of liability and damages will generally have beneficial effects (e. g. , shorten court time if jury finds for defendant on liability, encourage settlement if jury finds for plaintiff on liability, reduce court time and expert witness fees if bifurcation leads to settlement, and reduce the number of legal principals a jury has to understand and apply). Additionally, case law supports limiting an injured plaintiff’s appearance in court during the liability phase of trial to avoid tainting a jury’s decision based on sympathy. The particular cases are summarized further below.

A New York State Bar Journal article on bifurcated medical malpractice trials recommends that when the defendant requests bifurcation, plaintiffs should have the burden to show how evidence regarding the extent of injuries is necessary to establish liability and how their case would be prejudiced if bifurcation was granted. As an alternative to bifurcating the trial, the authors also suggest that courts bifurcate summation, charge, and jury deliberations between liability and damages (70-APR N. Y. St. B. J. 38) (copy enclosed).

STATE STATUTES AND COURT RULES

Connecticut

In all jury or court cases, the court may order that one or more of the issues presented be tried before the others (CGS § 52-205; Practice Book § 15-1).

New York

Judges are encouraged to order a bifurcated trial, separating liability from damages, in any personal injury action where it appears that bifurcation may help clarify or simplify the issues and result in a fair and more expeditious outcome. When bifurcation is ordered, issues of liability must be heard first, unless the court orders otherwise. If necessary, the damages phase must be conducted as soon as possible before the same judge, unless he finds that impracticable (NYCCR § 206. 19).

New Jersey

If the defendant requests a trial involving punitive damages, the trial must be bifurcated. Compensatory damages will be determined in the first phase. Punitive damages must be determined in the second. Punitive damages may only be awarded if compensatory damages have been awarded (N. J. S. 2A: 15-5. 9 et seq).

Missouri

All cases tried before a jury involving punitive damages must be bifurcated before the same jury if requested by any party. Liability for compensatory damages will be decided in the first phase. Punitive damages must be decided in the second (RSMo § 510. 263).

Arkansas

At least 10 days before trial, any party may request a bifurcated trial in any case in which punitive damages are requested. If bifurcation is requested, then liability for compensatory damages must be determined in the first phase. Punitive damages must be determined in the second. (Ark Code Ann § 16-55-211).

CASE LAW

New York

Barracca v. St. Francis Hospital, 166 Misc. 2d 726, 634 N. Y. S. 2d 941 (1995)

A medical malpractice action that seeks damages because of professional negligence is an action to recover for personal injuries as contemplated in Uniform Rule of the Trial Courts adopted in 1986, which encourages judges to order a bifurcated trial in any personal injury action. As a general rule, questions of liability and damages in an action sounding in negligence are distinct and severable issues that should be tried and determined separately. It is only when the nature of the injuries has an important bearing on the issue of liability that a simultaneous joint trial on all issues should be permitted.

Trying liability to a verdict before starting the damages portion will have a beneficial effect in many cases. It will shorten court time if the jury finds for the defendant on liability, encourage settlement if the jury finds for the plaintiff on liability, and reduce expert witness fees if bifurcation leads to settlement, which it often does after a successful trial on liability.

Jochsberger v. Morandi, 157 A. D. 2d 706, 549 N. Y. S. 2d 806 (1990)

In a negligence action to recover damages for personal injuries, plaintiff’s motion for a unified trial was granted. The New York Supreme Court, Appellate Division, held that the trial court erred in granting a unified trial given the prejudice that defendants might suffer if the jury knew of the infant plaintiff’s grave condition while deciding on liability.

Vermont

Chater v. Central Vermont Hospital, 155 Vt. 230, 583 A. 2d 889 (1990)

Pre-trial order granted a bifurcated medical malpractice trial and limited the amount of time plaintiff-child could be in the courtroom during the liability phase to avoid possible prejudice to defendant.

Maryland

Green v. N. Arundel Hosp. Association, Inc. , 366 Md. 597, 785 A. 2d 361 (2001)

Although a party has a right to be present at trial, that right is not absolute. There are factors that may lead a court to determine that the mere presence of a party holds no purpose other than a prejudicial effect. In the liability phase of a bifurcated medical malpractice case, the court has discretion to exclude a plaintiff from the courtroom where, after a hearing and observing the plaintiff in person or by other reliable means, the court determines that: (1) plaintiff is severely injured; (2) he attributes his injuries to the defendant’s conduct; (3) his presence in the courtroom may cause the jury to side with him out of emotional sympathy rather than on the evidence; (4) he cannot communicate or participate in the trial in any meaningful way; and (5) he would be unable to understand the proceeding.

Federal

Ciena Corp. v. Corvis Corp. , 210 F. R. D. 519 (2002)

Bifurcation to separate liability and damages phases was appropriate to reduce the number of legal principles the jury had to consider and apply. When deciding whether to bifurcate a trial, courts should consider if it would avoid prejudice, conserve judicial resources, and enhance juror comprehension of the issues presented.

In re Bendectin Litigation, 857 F. 2d 290 (1988)

The Court of Appeals found that the trial court did not abuse its discretion in trifurcating the issues. The principal purpose of Rule 42(b) is to enable the trial judge to dispose of a case in a way that advances judicial efficiency and is fair to the parties. Narrowing the range of inquiry substantially improved the manageability of the case and enhanced the jury’s ability to comprehend the issues. Courts also permit separate trials when the first issue tried may dispose of the entire case.

JB: nf