I recently was picking a jury in a medical malpractice case for 2 ½ days. The prospective jurors were told a little information about what kind of case they might possibly sit on and judge. The whole panel of jurors was told that the case involved claims of medical malpractice, what specialties were involved, the names of the parties and the attorneys representing them. The attorneys also agreed to inform the jurors in the panel the approximate length of time it was expected the trial would take. The attorneys then asked the panel of prospective jurors to raise their hands if anything that they heard up to that point in time might be a problem in terms of sitting on the case and explained that we would then talk to each of them individually and privately about any problem they had. Invariably for each panel that was given, there were many hands and the jurors were spoken to privately outside the courtroom. Aside from scheduling issues because of work commitments or personal problems usually involving health or family, a certain uniform pattern of problems voiced by the prospective jurors privately to the attorneys became evident, which was interesting but also a little disturbing. Any juror who was related to a physician or other health care provider, or who knew such a person as a friend, automatically said that they had to be excused and could not be fair. In other words, they would be biased in favor of the doctor defendants no matter what they heard about the departures from good and accepted medical practice in court or the injuries caused by the departures. This was true of every person who brought up a connection to the medical profession. I found the unanimity of this phenomenon pretty amazing and somewhat different from what jurors expressed in the past. On many occasions in the past, a prospective juror who had a close relative who was in the medical profession would say that it would be a problem and uncomfortable to sit on a medical malpractice case, however, there were other prospective jurors who knew or were related to medical care providers who would say that they could judge fairly the claims of medical malpractice in the case and that their relationship with a medical care provider would not cause them to be biased in favor of the defendant doctors or medical institution if they believed based on the evidence and the law that the defendant doctors committed malpractice. In other words, they felt that justice for the injured plaintiff required them to find for the plaintiff if the evidence showed the treating doctors committed medical malpractice which caused the injuries and losses proven under the law. And these jurors would assure me that they would do that: find for the plaintiff against the defendant doctors if that is what the evidence showed them and award the appropriate financial damages to compensate the plaintiff for the injuries and losses suffered. In 2 ½ days not one person expressed such a belief. I actually had received this assurance from nurses in the past!
On the other side of the coin, any juror who believed he or she had been injured by what the person felt was medical malpractice or had a family member or close friend so injured, also automatically disqualified him or herself. There was no prospective juror who said I believe I was so injured or a family member or friend was so injured but if, after listening to the evidence and the law, I believe that there is no proof of medical malpractice, I could find for the defendant doctors and not for the plaintiff notwithstanding any injuries or losses proven. In the past, again, there were some people who said even though he or she was injured or a family member or friend was injured by medical malpractice, he or she would find for the doctors if, after listening to the evidence and the judge’s instructions on the law, he or she felt that there was no malpractice that caused the injuries, losses or death of the plaintiff.
I am not suggesting that I, as the plaintiff’s attorney, would want a prospective juror who has a close friend or relative who is a medical care provider, or that the defense attorneys would want a prospective juror who had been injured or had a family member or close friend so injured because of the fear that the prospective juror could not get over a potential bias notwithstanding his or her’s good intentions.
So what is my point? What happened to the person who cares about civil justice? The person who says that even though I have a brother who is a doctor, of course, I would find for the injured patient and award the appropriate compensation if I believed based on the evidence and the law that the defendant doctor in the case injured that person as a result of medical malpractice? What happened to the person who says that even though I believe my uncle was injured as a result of medical malpractice, I would have to find for the defendant doctor and award no damages if there was no proof that the plaintiff was injured as a result of departures from good and accepted medical practice? In other words, why were there no people who cared about civil justice and doing the right thing notwithstanding who they knew, what had happened to them or someone close to them? Does it mean that there is no caring for others or achieving the correct result? Making the system work properly? Why? Any prospective juror might have to avail him or herself of the legal system to resolve a dispute in the future. Is this is what has happened to our society? People are just that jaded. It is discouraging when you think about our legal system being the last resort in terms of resolving such matters and makes a sad statement about us as a society.
Posted in Medical Malpractice | 6 Comments/Questions