Defense Digest

Pennsylvania - Health Care Liability
Propaganda Or Judge As Gatekeeper Of The Medical Malpractice Crisis Influence On Potential Jurors?

In a recent medical malpractice case, Capoferri v. Children's Hospital of Philadelphia, 2006 Pa. Super. 16 (Pa. Super. 2006), the Pennsylvania Superior Court determined whether certain questions regarding media coverage and comments regarding health care reform were proper in the voir dire of potential jury members.

The facts of the case involve a four-year-old boy whose mother noticed that his left testicle was enlarged while she was bathing him. Upon the advice of the boy's pediatrician, the mother monitored him overnight and brought him to the Emergency Department at Children's Hospital of Philadelphia for evaluation. An ultrasound confirmed that the child suffered from testicular torsion. However, exploratory surgery was not recommended. One of the defendant physicians instructed the mother on signs and symptoms of concern and recommended follow-up in one week. After one week, the child still had swelling and was in extreme discomfort. Yet surgery was not recommended as there was plenty of blood flow to the testicle. The plaintiffs were instructed to follow-up in two months. During the next two months, the boy again complained of pain in his testicle. Upon re-examination, it was determined that the child's left testicle had atrophied, without explanation. The plaintiffs sought another opinion from a pediatric urologist at St. Christopher's Hospital, who performed an outpatient procedure on the remaining testicle.

The plaintiffs filed suit in May of 2001, and the case went to trial in November of 2003. A verdict was entered in favor of the defendants, and the plaintiffs filed post-trial motions. One of the post-trial matters was the plaintiffs' claim that the trial court had committed reversible error by not allowing plaintiff's counsel to ask the potential jury members certain questions during voir dire. Plaintiff's counsel wanted to voir dire the jury on their knowledge and perspective of the alleged medical malpractice crisis in the Philadelphia area, as well as the alleged flight of physicians from the Philadelphia area. Having been precluded from doing so, the plaintiffs argued that they were prejudiced in their ability to select an impartial jury. The questions rejected by the trial court pertained to advertisements criticizing those who use the judicial system for recovering money for personal injuries; concern about medical malpractice cases in general; whether jurors had prejudice against anyone who files a lawsuit seeking money for personal injuries; and whether jurors had a preconceived notion about those who file medical malpractice lawsuits.

In ruling, the trial court set forth that its practice was to question a potential juror on his or her experiences or thoughts about litigation and then to question individually about his or her favorable or unfavorable experiences. The court felt that this was more than adequate to explore jurors' experiences, rather than "opening the door for an entire panel of jurors to be found unsuitable for services because they have heard about one particular public issue, such as the 'medical malpractice crisis'." The trial court explained that the purpose for voir dire was to secure a fair, competent, and impartial jury. Furthermore, the scope of voir dire was within the sound discretion of the trial court and shall not be disturbed absent a clear abuse of that discretion.

The question before the Superior Court on appeal was whether the trial court should have allowed the questioning of potential jurors regarding the pre-trial publicity of the medical malpractice crisis in Pennsylvania and in the City of Philadelphia. Although the plaintiffs relied on decisions from other jurisdictions regarding media coverage about tort reform in general, the Superior Court focused on a Lackawanna County Court of Common Pleas case that had permitted questing of jurors during voir dire about recent remarks made by President Bush during a campaign rally in the area, approximately four days prior to the start of trial.

President Bush had made a statement which had been published in the local newspaper, Scranton Times, which detailed how President Bush had met with an obstetrician who had to stop delivering due to insurance restrictions. President Bush also met with one of the doctor's patients, who had to travel 100 miles round trip for prenatal care, whose baby was delivered by a physician unknown to her.

The Superior Court compared this Lackawanna County case with others cited by the plaintiffs in determining that the parties should have been allowed to question the potential jurors about medical malpractice and tort reform. The court also referenced Pennsylvania Rule of Civil Procedure 220.1(a)(16), which allows voir dire to include the opportunity to obtain pertinent information that may relate to the particular case.

Additionally, the Superior Court believed that their decision followed the Supreme Court's holding in Atene v. St. Lawrence, 239 A.2d 346 (Pa. 1968). Although in Atene the Court held that the trial court did not abuse its discretion in not allowing voir dire as to whether any jurors' relatives or friends worked as claims investigators, the Court recognized that there were instances when jurors were not aware of their own disqualifications.

Therefore, in the present case, the Superior Court concluded that the trial court should have allowed preliminary questioning as to whether any of the prospective jurors had been exposed to tort reform propaganda in order to ensure a fair and impartial jury. Thus, the Superior Court reversed and remanded for a new trial.

*Kara an associate in our Philadelphia, PA office. Ms. White may be reached directly at (215) 575-2596 or kcwhite@mdwcg.com.