Superior Court reverses ruling granting new trial in medical malpractice case

By Angela Underwood | Mar 13, 2018

HARRISB​​​​URG – A two-year-old medical malpractice ruling that granted a new trial has been reversed by the Superior Court because the appellee's post-trial motions were not addressed.

HARRISBURG – A two-year-old medical malpractice ruling that granted a new trial has been reversed by the Superior Court because the appellee's post-trial motions were not addressed.

Superior Court judges Mary Jane Bowes, Anne Lazarus and Paula Francisco Ott reversed and remanded Feb. 12 a 2016 order that granted Deanna Keene a new trial in her medical malpractice complaint against appellants Dr. Paul Kirsch and Fosterbrook Medical Associates, P.C.

After a jury ruling in favor of the appellants by 10-2, Keene filed a post-trial motion to prove that some of the jurors, who swore under oath they were not patients of Kirsch, had in fact had connections to the doctor.

In reviewing the original case documents, authoring judge Bowes detailed that “at no point during the May 3, 2016, proceeding, did either appellee or appellant indicate that they had agreed that a juror could be automatically stricken for cause.”

However, after examining jurors in a post-trial hearing, it was found that based on law, two jurors would have been excluded based on the fact that they or their family had indeed been a patient of the doctor, the opinion states.

Bowes first noted that the Superior Court panel's  analysis of a new trial being granted would be based on a two-step process based on precise reasoning as seen in Flenke v. Huntington from 2015 by first deciding if the trial court erred in its ruling.  

“We conclude that inquiry into whether a juror did not properly answer questions during voir dire that would have led to removal for cause is not prohibited by the no-impeachment rule, and agree with the trial court that the inquiry pertains to whether the juror should have been allowed to participate in the deliberations at all rather than what occurred during deliberations,” Bowes wrote.

Bowes further cites Schwarzbach v. Dunn from 1977 to detail the court's decision based on the precedent case, noting "in that decision, a new trial was awarded to a defendant because, even though questioned on the subject matter, a juror did not reveal a relationship that established that the juror would be favorably inclined to find for the plaintiff,” according to the opinion.

Bowes then cited Commonwealth v. Rosario from 1962 to further prove the reasoning, “both Schwarzbach and Rosario support the trial court’s finding that an incorrect response to a voir dire question that would reveal a prejudicial predisposition for or against a party is grounds for a new trial in this Commonwealth,” according to the opinion.

The panel of judges further defined what in fact what constitutes “patient relationships,” to point out that one of the juror’s mothers was in fact seen by Kirsch.

Though Bowes notes that the juror's “connection to Dr. Kirsch was simply too attenuated to establish prejudice under the standards applicable to warrant of a new trial,” according to the opinion, “we observe that appellee’s remaining post-trial motions were not addressed by the trial court so that such relief is inappropriate.”

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