Voir Dire in Medical Negligence
Cases
A Plaintiff's Perspective
New York Law Journal, Thursday, October 28, 2004
Ben B. Rubinowitz and Evan Torgan
An attorney selecting a jury on behalf of a plaintiff in a
medical negligence case faces several obstacles to finding
jurors who can hear the evidence and decide the case in a fair
and unbiased manner. Most potential jurors do not want to
believe that doctors or other medical professionals make
mistakes, because that belief forces them to acknowledge that
they, themselves, are susceptible to being injured as a result
of medical negligence. Jurors also may be intimidated by the
prospect of judging the conduct of a doctor, preferring instead,
as a layperson, to demur to the superior knowledge of a medical
professional.
In addition, medical negligence cases today have become a
hot-button political issue. An important point in this
presidential campaign has been the impact that medical
negligence cases have on health care at large. Indeed, with the
threat of physician strikes on account of inflated insurance
premiums, coupled with a presidential call for a federal cap on
pain and suffering damages in medical negligence cases, it is no
surprise to learn that a prospective juror may fear that a large
plaintiff's verdict will interfere with his own ability to
receive appropriate health care, regardless of the dubious logic
that supports that linkage.
The key to a successful voir dire is to factor these biases
and beliefs into the process and deselect those who cannot be
fair in this type of case.
Anticipating Your Adversary's Points
There are several strategies available for a plaintiff's
attorney to conduct a voir dire in a medical negligence case
that will weed out jurors who are predisposed against the case
and lay the groundwork for a plaintiff's verdict with the jurors
who do remain on the panel. Initially, it is crucial that your
plan for voir dire be structured in terms of anticipating what
your adversary will say when it is her turn to speak. Further,
this process requires you to expect both what defense lawyers
say generally and what your particular adversary likes to say
specifically.
For example, one can rest assured that a defense attorney
will speak to the jury about avoiding sympathy for the
plaintiff. Since you know this is coming, an effective voir dire
requires that the plaintiff's attorney is the one using the word
and talking about it with the jury first.
Rather than permit a defense attorney to convince a jury to
view your arguments in terms of a plea for sympathy, the
plaintiff's attorney can defuse this point by stating flatly,
"We are not here for sympathy," and asking jurors to affirm your
statement: "Do you believe that if this case is decided on the
basis of sympathy, that that would be wrong?'
This accomplishes two important things. First, it lessons the
impact of defense counsel's questions -- the jury has already
heard you dismiss sympathy as a grounds for a plaintiff's
verdict -- and instills in the jury the feeling that you believe
in the merits of your case.
Secondly, having the jurors agree that sympathy has no place
in the courtroom can be used as a place to begin questioning
them about biases that they have against your case. Now you can
follow: "You've told me that using sympathy as a factor in your
decision of this case would be wrong? Do you feel as strongly
that the case should be decided on its merits and not opinions
about medical negligence cases generally? Would you think it's
right if, during deliberations, a fellow juror told you that
these lawsuits are out of control, and we need to stop it right
here? Is that type of reasoning on behalf of the doctor any
different than deciding for the plaintiff on the basis of
sympathy?" It is now time to ask an open-ended question: "How do
feel about this?'
This approach invites prospective jurors to talk about their
biases, while also giving you the opportunity to make the point
that their political viewpoint is irrelevant to the final
decision in your case.
There are other areas about which you can safely expect your
adversaries to question jurors. Typically, defense attorneys
will remind jurors that the mere fact that the plaintiff was
injured, or that the results of the surgery were less than
expected, does not mean that medical negligence occurred. They
will usually remind jurors that the case must be viewed without
hindsight, that the doctor's conduct can only be judged based on
what he knew or should have known at the time of the occurrence.
In most cases, defense attorneys will stress that a judgment
call made by their client, even if it proved ultimately to be
the wrong decision, does not constitute malpractice.
You must be ready to speak about these topics first. Indeed,
since they are indisputably true, do not be afraid to say, for
example, "We are not asking you to judge this case in hindsight.
It is our position that the facts will prove that the
defendants, based on what they knew or should have known at the
time these events were taking place, departed from good and
accepted practice in their treatment of my client." These
statements will serve to enhance your credibility with the jury,
diffuse your opponent's argument and permit you to broach these
topics with the jurors in the manner in which you decide.
The other aspect of a successful voir dire is gaining
specific information about your adversary's approach and then
incorporating his pet phrases into voir dire. Obviously, you
must speak to lawyers who have picked juries with your adversary
previously and rely upon your own experience with them. Once you
have obtained your scouting report, you can attempt to disarm
your adversary by actually using some of the words they normally
do and presenting them to the jury in your own way.
For instance, imagine that you learn that your adversary
regularly stands up and announces to the jury that his client
has been accused of being guilty of committing medical
malpractice. The intent of the words is clear: to make it seem,
as much as possible, that a criminal indictment has been handed
up and that the jury will be deciding the innocence or guilt of
his client.
Knowing this, you can diminish the impact of this statement
by telling the jury something like: "I want you to know right
now, this is not a criminal trial; no one is saying that the
doctors intended the harm that was caused to my client, in fact,
no one is saying that they are bad doctors. Guilty or not guilty
is something that you should never hear in the case; the concept
of guilt or innocence belongs to a criminal trial, not here in a
civil trial. You will be asked to decide simply if these doctors
departed from good and accepted practice, which caused injury in
the treatment of my client.'
Learning ahead of time the other methods or metaphors that
your adversaries like to use in jury selection is invaluable and
provides the opportunity to present certain concepts to the jury
while your adversary will be forced to appear as if he is
spinning his words off your ideas.
Dealing With Political Issues
Today's political climate simply cannot be ignored when it
comes to talking to a group of jurors about medical negligence
cases. Whereas just a short time ago, only those who have been
directly involved in such cases, i.e., parties, doctors,
lawyers, insurance people, were likely to have strong opinions
regarding these cases in the courts, today they are a topic that
comes up in virtually every discussion of domestic policy.
A good plaintiff's attorney cannot hope to avoid mention of
the sentiment among some people that these cases, in general,
are bad for the economy and the health care industry. Instead,
we believe you must talk about it frankly. Make people who
believe, for example, that caps on pain and suffering should be
imposed feel comfortable to express that view during voir dire.
It is your only chance to identify those people who walk into
the room philosophically troubled by a large plaintiff's verdict
in your case.
Once a prospective juror does express ambivalence regarding
medical negligence cases, this is not the time to try to change
that person's political viewpoint. Instead, if the person is on
the fence, but honest enough to talk about his discomfort with
the case, you must do all you can to draw out the information:
"Have you discussed these opinions with others? What have you
read on the subject? Do you have any feelings about a trial
lawyer running for vice president? Do you have any feelings
about a particular political party's statement on this issue?'
In the end, you must accomplish one of three things: help the
juror come to the realization that he cannot put aside his
political feelings and thus should not sit on the case; or, in
the absence of that, elicit enough information that could serve
as a basis for a challenge for cause; or else gain a commitment
from the juror that he is open-minded about this case and could
fairly decide the facts of the case and render a verdict based
upon the law with which he is charged.
The importance of this line of inquiry cannot be overstated.
We live in a time in which the president of the United States
has chosen to vilify plaintiff's medical negligence lawyers and
sound the call for reform in just one area of the law: medical
negligence. The income or fees generated by corporate or
transactional lawyers, although enormous, is simply never
discussed. The good done by plaintiff's lawyers in protecting
civil rights is never discussed. In other words, this topic has
been moved to the forefront of the American consciousness. To do
anything other than bring it up and have the jurors engage in a
frank discussion regarding their political beliefs on the topic
would stand as the antithesis to the actual purpose of voir dire
-- to uncover biases and opinions that prevent the parties from
getting a fair trial.
Questions for All Jurors
For all jurors, regardless of whether or not they state
built-in opinions regarding medical negligence cases, there are
a number of areas of inquiry that you must touch upon. First,
you must gain a certain amount of general information about the
juror's affiliation with the health care industry and, secondly,
you must address your fears and concerns about their attitudes
towards the case.
Generally, the following questions should be asked:
Of course, if any of these questions elicit a positive
response, you must probe for more information for the purpose of
learning how the experience has affected the mind-set of the
juror.
Fears and Concerns
In addition, you must share your fears and concerns about
potential juror attitudes and beliefs that could be detrimental
to your case. Some of them are as follows:
-
Fear: That a juror believes that a doctor or nurse might
lose his/her license if found to be at fault.
-
Concern: That the jurors will hold the plaintiff to a
higher standard of proof than is required under the law.
You must make it clear that nobody's license is at stake at
this trial: "I'll tell you right now, this is not a criminal
trial, no doctor is going to lose his/her license as a result of
what happens in this case; you understand that the issue is
whether or not, on one specific day and time, there was a
departure from good and accepted practice which caused injury to
my client.'
• Fear: A juror will see any choice made by a doctor as a
judgment call made under difficult circumstances.
• Concern: The jury will excuse the negligence of the
doctors.
You must introduce the concept that applicable standards and
practices govern health care and ensure that jurors will listen
to whether or not those standards were breached in your case.
Ask jurors if they agree with this statement: Doctors who fail
to act in accordance with good and accepted practice should be
held liable for those actions, even if they say they used their
best judgment?
Conclusion
Jury selection is your only opportunity to address these
issues and uncover biases before the trial begins. The trial
lawyer who neglects to do this may still try a great case and be
left wondering how the jury could have rejected his claims.
Ben B.
Rubinowitz, a partner at
Gair, Gair,
Conason, Steigman & Mackauf, is an adjunct professor at Hofstra
University School of Law and Benjamin N. Cardozo School of Law. Evan Torgan, a member of Torgan & Cooper, is an
adjunct professor at Cardozo School of Law.
New York Medical Malpractice Lawyers at Gair Gair Conason, Steigman
& Mackauf have more than 40 years experience in representing plaintiffs who have been injured or died as the result of medical malpractice.
