Verdict Upheld in Medical Malpractice Trial Despite Juror Bias
News: A doctor misdiagnosed a patient’s leg wounds and ulcers as venous rather than arterial, setting off a chain of events that led to a leg amputation and, ultimately, the patient’s death. In the resulting medical malpractice trial, the trial judge allowed two jurors who expressed bias against medical malpractice plaintiffs to serve on the jury, despite not personally seeing the jurors’ questioning regarding that bias. During the trial, an expert witness presented by the doctor testified to his conclusion that the doctor met the standard of care despite the misdiagnosis, but did not delve into the specifics of his analysis or the numerous factors he considered in coming to that conclusion.
The appeals court ultimately found neither of these facts required overturning the jury’s verdict or ordering a new trial because the patient did not offer timely objections to the judge not personally overseeing the jury selection process, and because the expert identified the specifics of his analysis in his pretrial report and could have been cross-examined on those issues despite only testifying to his ultimate conclusions in front of the jury.
Background: A patient suffering from diabetes, kidney disease, and other ailments sought treatment from a Pennsylvania doctor for leg wounds and ulcers. The doctor misdiagnosed the leg wounds as venous rather than arterial. The patient later needed a leg amputation, which caused a series of complications ending in the patient’s death. The patient’s widow filed a malpractice suit against the doctor and the hospital.
Voir dire for the medical malpractice trial began in March 2018. The process was conducted by a court clerk, which was common practice in the county where the trial was held, although in many jurisdictions the trial judge conducts voir dire personally. The plaintiff made several motions to challenge three potential jurors for cause based on their affirmative answers to two juror questions regarding their feelings about medical malpractice lawsuits, admitting they held animosity toward medical malpractice plaintiffs and expressing support for caps on damages awarded to the deceased patient’s estate. The judge ultimately granted one motion (preventing that juror from serving on the jury) but denied the other two motions.
Before the trial, the patient’s executor also made a motion in limine to preclude an expert from testifying the doctor had provided “excellent care” and acted reasonably given the circumstances, arguing these were mere conclusions without any stated factual basis, and thus an impermissible expert opinion. The judge denied this motion, and later overruled an objection on the same grounds during the trial.
The jury ultimately found in favor of the doctor, determining the standard of care was met. The patient’s executor appealed on both the voir dire issue (arguing that the judge did not witness the voir dire and thus improperly denied the for-cause challenges) and expert testimony issue. The appeals court initially sided with the patient’s executor based on a recent, unrelated-but-similar case on appeal in the Pennsylvania Supreme Court. When that court considered the similar case, it found a patient’s estate waived their objections to jury selection issues the judge did not personally witness by failing to file pretrial motions based specifically on a claim that error occurred because the judge did not personally observe the voir dire. Given this ruling, the appeal in the instant case also was dismissed for the same reasons — the executor’s motions to dismiss the jurors for cause before trial made no mention of the fact the judge did not personally oversee voir dire; the first time the executor raised those issues was after trial concluded.
As for the expert witness testimony, the executor argued the expert witness discussed a “multifactor” analysis to be used to determine whether the patient’s wounds were venous or arterial, but then concluded the doctor acted reasonably without actually discussing those factors and how they weighed in favor of the doctor. The executor also objected to the expert’s reference to “literature” that supported his opinion, without actually specifying which literature or admitting any of the literature into evidence. The trial court applied the rule that expert testimony is allowable as long as it is limited to the “fair scope” of the expert’s pretrial report. Under that rule, the trial court found the expert’s testimony was fair (and admissible) in that it gave the executor enough grounds to prepare a meaningful response, and the expert’s conclusory opinions did not constitute an unfair surprise. The appeals court agreed, noting that although the expert did not detail all the factors and how they affected his opinion, his pretrial report adequately discussed several factors in detail. The appeals court also ruled the expert’s single, vague reference to “literature” was improper, but that it did not prejudice the executor to the extent required to overturn the trial court’s decision to allow that testimony.
Because the appeals court ruled in the doctor’s favor on both issues, it affirmed the trial court’s decision and denied the executor’s bid for a new trial.
What this case means to you: This case provides two meaningful lessons about medical malpractice jury trials and related expert witness testimony. First, as to medical malpractice jury selection, there is a procedural takeaway and a substantive takeaway. Procedurally, this case affirms that a judge need not oversee the jury selection process personally. If either party to a litigation takes issue with that practice, it should object specifically on that basis before the trial begins, rather than waiting to make a motion on this basis after it loses the trial. Moreover, this practice was especially allowable given that it was common practice in the county in which the trial was held. The executor was not allowed to abide by this common practice without objection, only to blame the negative outcome of the trial on that practice after the jury found against her. Perhaps more importantly, jurors in medical malpractice cases need not be completely impartial or divorced of opinions on medical malpractice actions or plaintiffs. In this case, the trial court and the appeals court agreed two jurors could stay on the jury despite affirmatively registering disdain toward medical malpractice plaintiffs and expressing support for an absolute cap on recovery for successful medical malpractice plaintiffs, regardless of the harm suffered by the patient or the egregiousness of a doctor’s negligence.
As for the expert testimony issue, this case shows the importance of a testifying expert’s pretrial report, the allowable scope of the expert’s testimony, and conclusions regarding malpractice and whether the standard of care was met. The testifying expert in question essentially testified only as to his conclusions the doctor acted reasonably and met the standard of care, without delving into the detailed factors that affected his analysis. Rather, he relied on the identification of several of those factors in his pretrial report, and loosely discussed only a select few of those factors in his testimony.
The legal issue presented to the court focused on whether providing conclusory testimony to the jury was allowable given the more detailed expert report. In essence, the appeals court judged the parties’ arguments on this issue as a matter of fairness, with the key question of whether the executor was fairly given notice of the testifying expert’s theories of the case and the factors he used to apply his opinion to the specific facts. The appeals court agreed with the trial court, stating because the testifying doctor had outlined many such factors in his pretrial report, the executor could and should have been able to fairly cross examine the expert at trial, delving more deeply into those factors if her attorneys so chose. The expert did not unfairly surprise the executor by simply testifying to conclusions — or vaguely and cursorily referencing that “literature” supported his conclusions. The executor had free reign on cross-examination to steer the doctor toward a more detailed discussion of those factors.
Finally, from the factual and physiological perspectives, arterial and venous occlusions can both cause ulceration and wounds, especially on the lower extremities. Diagnostic ultrasound examinations of venous and arterial blood flow are relatively accurate in determining the location of the occlusion that is causing the problem. Although the appearances of the wounds are similar, the causes are different. An arterial ulcer occurs when the artery is blocked and blood cannot flow to the tissue. A venous ulcer, or stasis ulcer, occurs when the blood pools in the lower extremity and cannot flow back to the heart. These are much more common and sometimes can cause confusion during the initial evaluation. Confirmatory studies should be sought when any doubt exists.
- Decided April 8, 2021, in the Superior Court of Pennsylvania, Case Number 1166 WDA 2018.
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