Appeals Court Rules Rejection of Voir Dire Questions Not Abuse of Discretion

An appeals court has ruled that a judge in a medical malpractice case did not abuse his discretion in replacing a plaintiffs’ proposed jury voir dire questions with more general questions of his own.

Per Massachusetts Lawyers Weekly:

Family members of a 51-year-old woman who died of complications from undiagnosed diabetes alleged in their lawsuit that the physician’s failure to order the decedent to be seen immediately after speaking to her on the phone prevented timely diagnosis of her condition.

Before trial, plaintiffs’ counsel requested attorney-conducted voir dire and submitted 12 questions asking, among other things, whether members of the venire held views on med-mal suits; whether they would tend to favor a patient or a doctor at the outset; whether they would have trouble holding a doctor accountable for harm caused negligently but unintentionally; and whether there was anything that would prevent them from making a full and fair assessment of damages for a claim of loss of society and companionship brought by the decedent’s 90-year-old mother.

The judge rejected these questions, saying they were “almost over the line in prejudging the case.” Instead, he stated that the case was a medical malpractice lawsuit and asked the group if they could be “fair and impartial.” Then, he asked the prospective jurors six less specific “yes/no” questions he had written and permitted the parties to ask limited follow-up questions.

The plaintiffs appealed this verdict, arguing that the judge erred “in setting such limitations on the attorney-conducted voir dire.” However, the Appeals Court affirmed the judgment.

Marc Breakstone of Breakstone, White & Gluck told Massachusetts Lawyers Weekly:

Limiting voir dire to ‘yes or no’ close-ended questions does not ‘reveal preconceptions or biases relating to the identity of the parties or the nature of the claims or issues expected to arise in the case,’ as required by Superior Court Rule 6.

Voir dire should focus on eliciting prospective jurors’ attitudes and beliefs. Asking citizens if they can be fair and follow the court’s instructions is a complete waste of time [and] reveals nothing about the deeply held values which will most affect how the jurors decide the case.

About the case

In March 2015, Margaret Ross, 51, visited a nurse practitioner at Somerville Family Practice after experiencing a “whitish plaque” on her tongue. The nurse practitioner treated Ross for an external yeast infection and did not test her for diabetes. A week later, Ross called the practice complaining of nausea and vomiting. The defendant, Gretchen Dietrich, a physician from Mount Auburn Hospital who treated patients from the practice, spoke with Ross on the phone and prescribed an antiemetic. Three days later, Ross died from diabetic ketoacidosis.

Per Massachusetts Lawyer Weekly:

Family members sued the doctor in Superior Court on behalf of Ross’ estate, alleging the defendant was negligent in not having the decedent seen immediately in person, and that had she done so, the decedent’s diabetes would have been discovered in time to save her.

The defendant countered that her actions were appropriate in light of the limited information available to her.

Prior to the trial, counsel for the plaintiff requested attorney-conducted voir dire and submitted 12 “yes/no” questions designed to find out prospective jurors’ feelings toward medical malpractice suits, whether they would favor the doctor or patient in these suits, whether they would be able to hold a doctor accountable for harm caused by negligence, whether they would let their sympathy get in the way of making an evidence-based decision, and whether the jurors would hold the plaintiff to a higher standard of proof than the law calls for.

However, Judge John P. Pappas declined to ask these questions, believing they came too close to prejudging the case.

Instead, over the plaintiffs’ objections, before questioning the venire individually, Pappas told the prospective jurors as a group that the case involved medical malpractice and asked whether they could be “fair and impartial.” Then Pappas individually asked prospective jurors six generalized questions about how they felt about lawsuits and their experiences with medical providers.

The defendant was found not negligent, and the plaintiff’s appeal was filed. However, the Appeals Court affirmed the judgment.

Judge Joseph M. Ditkoff wrote for the panel:

The judge, although not asking the questions proposed by the plaintiffs’ attorney, did explore potential juror bias against persons seeking money in a medical malpractice lawsuit, by asking the prospective jurors generally if they have any biases or opinions’ after telling them that the case was a medical malpractice lawsuit. Additionally, the judge asked several more pointed questions about prospective jurors’ experience with health care providers and medical issues, including asking one question that was nearly identical to a question proposed by the plaintiffs’ attorney.

Chester L. Tennyson Jr. of Hull, who represented the plaintiffs, could not be reached for comment before the Massachusetts Lawyers Weekly deadline.

The 15-page decision is Ross, et al. v. Dietrich, Lawyers Weekly No. 11-063-24.

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