Litigation Education: Understanding the Appeal Process

Foreword by Kristi Wright 
After a trial, if the losing party decides to challenge the verdict, they may file an appeal to a higher court. While not common, it does happen, and it’s important to understand the process. Richard H. Petersen, Senior Claims Consultant at Curi, provides a comprehensive overview of what happens next.

On the losing side of a trial, the attorneys representing the plaintiff (and occasionally defense counsel), will file a Notice of Appeal after the verdict is delivered. Having spent years defending your standard of care, testifying during deposition and trial, and sitting through a lengthy trial, a successful verdict may still be followed by an appeal. So, what happens now?

To understand the process, let's first dive into some background. The trial courts, or courts of original jurisdiction, have wide latitude over the trial process including their court rulings. Appellate Courts defer to the trial court judges to manage the complex trial. With numerous expert witnesses, complex medical issues at stake, multiple attorneys, and tight court schedules, the Appellate Courts don’t usually second guess the trial judge’s role. They review the case to see if the judge made what is known as an “error of law.” To use a medical analogy, an “error of law” would be equivalent to a careless mistake as opposed to a known complication of the procedure. 

An “error of law” refers to a mistake made by the judge during the proceedings, such as misinterpreting legal rules, admitting inadmissible evidence at trial, applying the wrong standard of care, or giving incorrect jury instructions. Such errors could have affected the case’s outcome, providing grounds for an appeal.

For example, following a recent trial, the trial court judge found that there was no evidence of gross negligence against the Curi-insured radiologist. The court, nonetheless, instructed the jury to consider both ordinary negligence and gross negligence, creating a potential ground for appeal.

At Curi, we are fortunate to partner with experienced trial lawyers who vigorously defend your standard of care at trial as well as attorneys who specialize in appellate practice. Just as in medicine, trial lawyers and appellate counsel focus on different aspects of the case. If you’ve gone through a trial, you’ll recognize the traits of a great trial lawyer. Trial lawyers are required to think on their feet, be engaging storytellers, speak with empathy, and serve as a credible spokesperson on your behalf. If a trial lawyer is equivalent to a general surgeon in the OR, the appellate counsel would be a pathologist.

Appellate Counsel has the task of pouring through the voluminous trial transcript containing hundreds of court rulings, objections from the trial lawyers, the jury charge given prior to deliberations, the Court’s rulings on evidence, expert witnesses – pretty much the entirety of the trial process.

 So, how does the appellate process work, and what should you expect?

The appellate process for a medical malpractice lawsuit involves appealing to a Court of Appeals, and next to a Supreme Court. Each state may have slight variations in the name of the courts, but regardless of the names used, each State typically has three tiers of jurisdiction for medical malpractice cases: state trial courts, an appellate court, and a supreme court. 

In the Court of Appeals, the first level of appeal for medical malpractice cases, the court reviews the trial court’s decision for errors of law or procedural issues. If the Court of Appeals finds a reversible error, the court will reverse the lower court and may order a new trial. If the Court of Appeals denies the appeal, the petitioner (the party that has pursued the appeal, which as stated earlier, could be the plaintiff or defendant), could file a petition to the state’s Supreme Court. The likelihood of a case being taken up to a state supreme court is low, but it does happen. 

Here's how the appellate process typically works:

1. Review of the Case: Your appellate attorney will examine the trial transcript, exhibits, and rulings to identify potential grounds for appeal. If the plaintiff is appealing (known as the Petitioner in the appellate court), your appellate attorney will examine the petitioner’s Notice of Appeal and research the basis for the appeal. In the appellate court, if you are opposing the appeal, you become what is known as the Respondent.
2. Filing the Notice of Appeal: This document is filed with the appellate court and serves to notify all parties—yours or the plaintiff’s—about the grounds for appeal.
3. Appellate Briefs: Legal briefs outlining the arguments for or against the appeal are submitted. These are thoroughly reviewed by the appellate court and may require oral arguments from the attorneys—typically three.
4. Appellate Court Decision: The appellate court may affirm the trial verdict, reverse it, or remand the case back to the trial court for a new trial if there was a reversible error.

As with any legal proceedings, the appellate proceedings also require strict adherence to deadlines. Depending on where the trial and appeal occur, the time for resolving the appeal can take months, and more likely over a year. During this time, your appellate attorney and Curi representative will update you on the status of your defense. Nothing more is required from you other than patience and trust in the process. One thing remains constant—whether it's the trial or appellate stage, Curi remains committed to defending good medicine throughout the litigation process.

In our next litigation blog series post, Senior Claims Consultant, Sonja Roller, will discuss the next steps after a case is resolved.

For more insights into the litigation process, we suggest listening to Dr. Gita Pensa’s podcast:  https://podcasts.apple.com/us/podcast/doctors-and-litigation-the-l-word. For additional information on this subject, watch video twelve: What You Need to Know About Appealing Verdicts on curi.com/litigation-education.

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