Last Updated: Feb 21, 2013

This paper provides general legal information. It is not intended as legal advice. Laws and procedures change frequently and are subject to differing interpretations. Physicians should consult their personal attorney if they are in need of legal guidance on a specific situation. Nothing in this paper should be construed as defining a standard of care.

Both the Pennsylvania and federal rules of civil procedure allow the court to bifurcate a civil trial, i.e., to separate the trial into two or more phases.1  

Appropriate grounds for bifurcation include:

  • To promote judicial economy
  • To avoid prejudice

The decision whether to bifurcate is within the discretion of the trial court and may be overturned on appeal only if the trial court abused its discretion.

In tort actions, such as a medical professional liability action, the court may separate the trial into a liability phase and damage phase (with causation and effect decided in the damage phase).

In such a case, the jury never hears any evidence on the patient's injury unless and until it determines that the defendant acted inappropriately (e.g., breached the standard of care) or is otherwise liable for any damages sustained by the plaintiff.

Bifurcation of liability and damage phases in this manner can save costs, particularly when there will be extensive evidence on damages. If the defendant is not found liable, there is no need for evidence on the issue of damages.

More importantly, it also may protect the defendant from being prejudiced by outcome bias - i.e., the jury's decision on liability being tainted by sympathy for the plaintiff's injuries.

On the other hand, courts sometimes refuse to bifurcate liability and damages on the basis that bifurcation is unnecessary in the case at hand. For example, a court might determine that it can resolve any potential outcome bias via cautionary instructions to the jury and that the damage evidence is not sufficiently extensive to warrant bifurcation.

In addition, in some cases, evidence regarding liability and damages are interwoven. For example, it may be difficult to "œpresent the story" of how and why the defendant acted inappropriately without evidence of the patient's injuries.

In these cases, courts have held that bifurcation is inappropriate if it would effectively deny the plaintiff a fair opportunity to present evidence on liability.

In conclusion, whether a request for bifurcation is a good defense strategy in a medical professional liability action will vary from case to case. However, because of the potential benefits, physicians sued for medical professional liability should discuss this option with their defense counsels.

1 Pa.R.Civ.P, Rule 213(b); Fed.R.Civ.P., Rule 42(b)

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