Voir Dire – Medical Malpractice Jury Selection Process

Joseph Horton, MD

They called me for jury duty last week. As luck had it, there was only one jury trial in court and I didn’t get picked for it. But since I find the experience instructive—and symptomatic of much that I believe to be wrong with our judicial system—I’d like to share the story of what happened Monday.

We entered Judge Harrington’s courtroom where the trial was to be held. Standing next to the bench was a chart that asked each potential juror to state his or her name, address, occupation, name of spouse and spouse’s occupation, and number of children. No clue why they were interested in offspring, but hey—why not? I admitted that I’m a surgeon and a board member of Medical Justice, and that I have a son who also is a physician. I don’t know a huge amount about statistics, but it fascinated me that, of the 33, there were also 5 registered nurses, 4 of whom were currently practicing, plus one who had retired. There was also a fireman with good knowledge of CPR and EMT.

Mr. Moncus is the younger of the two attorneys who represented the plaintiffs, Mr. and Mrs. Gillespie. Mr. Moncus asked a large number of questions to try to ferret out whether any potential jurors might be prejudiced one way or another. During voir dire (described, in part, as the process by which jury members are chosen, or more accurately, by which most are rejected), attorneys try to create the jury that they believe will be most inclined to rule in favor of their client(s).

Many of the questions were telling. Did anyone have or was anyone related to someone who had had a cervical epidural block? Several did, and all of those either had good outcomes or lack of relief; no one had experienced complications. The case is about putative complications resulting from such a cervical block, the central allegation being that this one had been done improperly in that at least part of it fell below the standard of care. One definition of standard of care is that degree of prudence and caution required of an individual who is under a duty of care. There are others, but they boil down pretty much to this central idea.

Other questions that were posed included whether anyone had been a plaintiff or a defendant in a suit. Mr. Moncus told us that each side would present his own expert witness, and that the one he would present is a physician who had given over 100 depositions and testified in over 30 court cases. I, too, have been an expert witness on several occasions, but when you’re being touted as having testified in that many cases, the term “professional witness” comes to mind. He asked whether anyone knew this physician. In all instances, if anyone wanted to speak privately, i.e., not on front of the other 32, that would be fine. Because of my points of view, I thought it best to say what I had to say privately lest it contaminate the others.

I had this to say (quotes are to the best of my recollection):

1) “I do these procedures myself, so I already know the standard of care. That means that if either of the experts says something else, I will know that they are at least ‘taking liberties’ with what’s reasonable. And I have a brother in pain management who also does them. In fact, I’m probably as expert as either of the two that the attorneys will be putting on the witness stand.” That brought a fair number of scowls to Mr. Moncus’ partner’s face.

2) “I have also been an expert witness in medical malpractice cases. While I am willing to review cases for both plaintiffs and defendants, I apply different rules to accepting cases for review. Because there are many frivolous suits against doctors, I will review any case for the defense and tell them what I believe. Sometimes actions are indefensible, and I tell the referring attorneys that, along with reasons for what I think.

Plaintiffs’ cases, though, fall into one of three categories:

a) There has been an egregious act which caused serious harm to a patient. In that situation (thankfully rare), I will go so far as to do something I hate doing, namely testifying against another physician. I have only seen one such case go to trial.

b) I wouldn’t have done what the defendant physician did, but I can see his way of doing it. While perhaps not my idea of the best way to have handled a situation, many others do handle it that way, and they will have no problem finding an honest physician to say so. I, however, wash my hands of that case. But, most commonly …

c) The case is frivolous and filing it would constitute just that—filing a frivolous medical malpractice lawsuit. In this case, I inform them of this, wash my hands here, too, and retain the right both to notify the other party of what’s being contemplated. And, if asked, make myself available as a witness for them.

3) “I have been a defendant in what I consider to have been a frivolous medical malpractice suit. The jury agreed, as did two appellate courts—Mr. Ronca (for the plaintiff) was tenacious, if not much else.”

“Would it be fair to say that this was an unpleasant experience for you, Dr. Horton?” he asked.

“Well, yeah,” I answered.

4) “The evidence that I would need to find for the plaintiff would be proof that there actually is a spinal cord lesion, as claimed, and that the lesion is in such a location as to be reasonably able to have caused the alleged deficit. The proof of the existence of the lesion would almost have to come from a spinal MRI examination.

“Further, if what you [attorneys] will be asking me to do is forget what I already know and merely listen to what your ‘experts’ have to say, and weigh that in the jury room, I can’t possibly do that.”

The attorney then asked, “Well, then isn’t this the wrong case for you to be juror on?”

“I can see why you might think that. But another point of view is that this is the perfect case for me to be on. I’ve always thought that doctors ought to be tried by 12 other doctors. But y’all have to make that call.”

Attorney: “Thank you for your candor.”

Voir dire.

What voir dire really means is not jury selection. What it means in actuality is telling the truth. It comes from the Latin, verum dicere, which means literally that: truth (verum) to tell (dicere).

There was a golden chance to put 7 people with genuine medical knowledge and experience on a medical malpractice jury. This was over 20% (!!) of the 33, and would, if empanelled, have been over half the actual jury.

Every one of us was excused [read: rejected].

What does this tell me? The main thing it tells me is that at least one party—it is not revealed which side excludes you since it is done by juror number, not by name (the attorneys and the judge have the list which correlates them, and I didn’t)—didn’t want medical personnel on the jury. And that tells me that at least one side clearly did not want a judgment rendered based on medicine, but rather on emotion—on heartstrings. Both sides profess to want only what is right and reasonable. To my thinking, at least one side is being less than honest about that and would, in the final analysis, fail the voir dire test.