Pa. Ruling: Med-Mal Knowledge a Proper Voir Dire Topic

Pennsylvania - New Jersey - New York - Nationwide

By Asher Hawkins
The Legal Intelligencer
February 7, 2006

A new trial is warranted for a case in which a Philadelphia judge did not permit plaintiffs counsel to voir dire prospective jurors as to their knowledge of the medical malpractice crisis issue, an en banc panel of the Pennsylvania Superior Court has ruled in a 6-3 decision.

Reversing Judge Mary D. Colins, the majority in Capoferri v. Children's Hospital of Philadelphia noted the substantial media coverage of the so-called med-mal crisis when the trial in that case got under way in late 2003.

Though declining to endorse the specific voir dire questions proposed by attorneys for the family of Jared Capoferri, now age 10, the majority ruled that Colins should have permitted questions designed to elicit from members of the venire responses on topics the plaintiffs sought to have addressed.

The case stems from a suit brought by the Capoferris in 2001 after Children's Hospital doctors allegedly failed to adequately treat a scrotal condition that ultimately led to the atrophying of one of Jared's testicles.

"Common sense dictates that the type of media coverage that accompanied the debate over tort reform created a climate from which the average person could conclude that he or she would be economically impacted and/or be deprived of accessible health care services," Judge John T. Bender wrote on behalf of the majority.

"Because there was no question that there was pervasive media coverage on the issue of medical malpractice prior to trial in the instant case, we conclude that counsel for both sides should have been permitted to question the prospective jurors regarding the subject and attempt to glean whether there was any impact on any individual juror's ability to decide the case fairly and impartially."

Bender was joined by Judges Joseph A. Del Sole, John L. Musmanno, Debra M. Todd, Mary Jane Bowes and Susan Peikes Gantman.

In a dissenting opinion, Judge Richard B. Klein, who was joined by Judges Michael T. Joyce and Maureen Lally-Green, called attention to the fact that the record included a mere reference to the debate over the proposed voir dire questions that purportedly took place between Colins and plaintiffs counsel.

The Capoferris have been represented in the matter by Robert Daniels of Sprague & Sprague.

"The bottom line of the problem was the disparity in the way plaintiffs were being treated, depending on the judge" overseeing the voir dire process, Daniels said.

Children's Hospital's attorney, Nicholas Centrella of Conrad O'Brien Gellmen & Rohn, said his client plans on appealing the decision to the state Supreme Court.

"We believe that a fair and impartial jury correctly decided this case after a lengthy trial," Centrella said, declining to comment further.

Veteran med-mal practitioners say the opinion highlights the way in which different judges handle voir dire proceedings in their own, unique ways.

"I always try to ask questions about whether [a prospective juror] has had unpleasant experiences with doctors and hospitals, and some judges don't let me ask about that," said Peter Hoffman of McKissock & Hoffman, whose practice focuses on defense work.

Trial lawyer Thomas Kline of Kline & Specter said he believes questions meant to elicit responses on a possible juror's exposure to media coverage of the med-mal crisis issue comprise the "mirror image" of the type of questions referred to by Hoffman.

"This is a good development," Kline said of the Capoferri decision, "because there has been an erosion of the voir dire process, and somewhat of a feeling by some trial judges that it's a secondary process, when of course there's nothing more important than who's going to sit on your jury."

All the attorneys noted that Capoferri marks the first state appellate court decision concerning voir dire in many years.

The majority's key citation was to the state Supreme Court's 1968 holding in Atene v. Lawrence, in which the justices ruled that counsel should be permitted to question prospective jurors on whether they have relatives who are claims investigators.

More recently, and at the county level, Philadelphia Common Pleas Judge Louis G. Hill argued in his 1993 opinion in Fleishman v. Smith that if prospective jurors' exposure to propaganda favoring one party is explored during voir dire, then their exposure to propaganda favoring the opposite side must be as well.

And in his 2004 opinion in Phillips v. Hanna, Lackawanna Common Pleas Judge Terrence R. Nealon ruled that venire members in a med-mal case could be asked about their knowledge of remarks President George Bush had made during a recent area campaign stop in which he stated that "you cannot be pro-doctor ... and pro-plaintiff attorney at the same time."

"We cannot conclude," Bender wrote in Capoferri, "that [the defense has cited] a valid reason not to allow questioning of prospective jurors when there has been a massive amount of media coverage on an issue that relates to the matter that will be heard by the chosen panel."

Daniels said that around the time trial got under way in Capoferri, he was in a doctor's office and saw a cartoon poster depicting a surgeon whose leg was attached to a ball and chain and who was saying he was no longer able to operate on patients due to the med-mal crisis.

"It really did create a bit of a media hysteria," Daniels said of the pro-doctor propaganda that he said was plentiful at that time.

"I felt it was totally legitimate, particularly at that point in time, to ask [the] questions [I proffered], because if you don't, you don't have any idea what might be in the back of some juror's mind," he added later.

Hoffman said, given the thrust of Klein's dissent, which two other judges signed onto, it will be important for practitioners to perfect for the record any voir dire-related issues, both before and after voir dire takes place.

As the parties, along with the judge, often informally negotiate the questions that will be put to members of a venire during voir dire, Hoffman said, attorneys' issues on that front may not always be sufficiently preserved for the purposes of appeal.

Kline said he believes it's essential for plaintiffs attorneys who handle med-mal cases to try to gauge which prospective jurors might have strong feelings one way or the other when it comes to the med-mal crisis issue.

"I can tell you from my experiences picking many medical malpractice juries in numerous counties over the past few years that there are always many jurors who vocally state that they cannot be fair and impartial, and it is important that those prospective jurors are individually voir dire'd," he said.