Virginia Medical Malpractice Evidence

I have spent the last month with my law partner Dan, gearing up for a malpractice trial that was supposed to start this week. The case has been post-poned for reasons beyond our control, but in preparing for the trial, I realized once again that while our civil justice system is to be admired, and revered in some ways, it, like all systems developed by man, has its flaws.

The thousands of rules and laws that govern evidence, and civil trials, make it difficult to tell the whole story on behalf of a family or victim of medical negligence. In fact, every time we put on a case, we are only able to tell part of the story.

The law will not allow us to tell the jury that our loved one owes Medicare  / Medicaid / Insurance company  / Hospital, whoever, thousands of dollars in liens related to their medical care. Which means, though we can ask for money damages, we cannot tell the jury that much of this money is already legally spoken for, owed to third parties who helped arrange and or pay for care.

Nor can we tell the jury how the medical crisis has hurt our clients financially – bankruptcy, bill collectors, etc. None of that information comes in.

Nor can we explain to the court, how the injury has changed other members of the family. Meaning, because they aren’t the injured ones, it is not relevant that the patient’s wife now has to see a counselor, or that their teenage daughter is so scared her mother will die she has nightmares.

And while I understand the legal reasoning behind these rules, it makes it hard when explaining to families that the evidence they think is most relevant, most important, will never be shared with the jury.

Nor will the fact that the doctor or hospital has been sued before. Or the fact that the insurance company that defends the doctor has or has not made an offer in the case.

So, I suppose I am writing this to future clients. Sadly, the whole truth will not come out. Justice will be based on how the jury understands and sides with the limited evidence that can be presented, and there is always a chance they won’t agree with the victim.

Knowing however, it is a risk, we still recommend families attempt to hold negligent health care providers responsible in our civil justice system. After all, this is how things change. We hold people accountable and they start to change their behavior. We try to hold them accountable and they think twice the next time. We stand up and ask a group of strangers to examine the evidence, and agree that more likely than not our client’s suffering should have been prevented.

Not a perfect system, but I am grateful it is there none the less.


Lauren Ellerman
Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at