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Jury Selection in Medical Malpractice Cases

In Ohio, every plaintiff is entitled to a trial by jury should they decide to exercise that right. Civil juries are generally composed of 8 individuals who reside in the community where the case is filed. In order for a plaintiff to win a case, at least 6 of those 8 jurors (or three-fourths majority) must vote in the plaintiff’s favor. Because of this, the process of selecting a jury, or voir dire, is very important.

The jury selection process is governed by Ohio Civil Rule 47. According to this rule, each party may examine a prospective juror to determine whether he or she is “qualified” to sit on the jury. There are many reasons why a juror may be disqualified, but the primary purpose for this examination is to determine if the prospective juror has any bias that may affect his or her ability to be impartial. If it is determined that a prospective juror is biased or otherwise unqualified, then that prospective juror would be removed for cause.

“In addition to challenges for cause provided by law, each party peremptorily may challenge three prospective jurors.” Civ.R. 47(C). This means that a party to a lawsuit has the opportunity to remove three prospective jurors regardless of whether they are qualified. The only restriction to this rule is that peremptory challenges cannot be used in a discriminatory manner (i.e. removing a juror based on race, gender, etc.).

Civ.R. 47(C) also provides that if the interests of multiple litigants are essentially the same, then “each party” shall mean “each side.” Importantly, this language can allow for the parties to have a disproportionate number of peremptory challenges and can likewise have a disproportionate amount of influence over the jury. For example, one issue we often have to deal with in medical malpractice cases is when we sue more than one doctor and/or hospital. Assume a lawsuit is filed against two doctors and a hospital. In that case, there are four “parties” to the lawsuit – one plaintiff and three defendants. Should the court determine the three defendants have different interests, then the plaintiff would only have three peremptory challenges whereas the three defendants would have nine. When the jury is comprised of only eight individuals, this provides the defense with a disproportionate amount of control in shaping the jury.

In order to combat this disproportionate amount of influence, we always file a motion to limit the number of peremptory challenges granted to Defendants, or in the alternative, equalize the number of peremptory challenges between each side. This helps ensure that plaintiffs are provided with a level playing field. By way of recent example, our firm recently filed such a motion in a case involving a radiologist who fell below the standard of care in his interpretation of radiological studies of the plaintiff, which lead to his wrongful death. See Pontius v. Ohio Health Corp., C.P. 10CVA-11989, 2014 Ohio Misc. LEXIS 16327 (Ohio Mar. 19, 2014). Plaintiff filed a lawsuit against the radiologist individually, the radiology practice, and the hospital where the imaging took place under the theories of negligence, respondeat superior, and agency by estoppel, respectively. Our argument was that the interests of the three defendants were essentially the same and non-antagonistic despite the fact that the defendants had separate attorneys and filed separate answers. The trial judge ultimately agreed with our argument and ordered that the plaintiff’s number of peremptory challenges be equal to the total number of the defendants’ peremptory challenges.

Unfortunately, this type of issue is one that is often overlooked by many attorneys. However, this is just one simple step attorneys can take to ensure that their clients can receive a fair trial. Not only does this give plaintiffs the best opportunity to win, it also helps ensure that doctors, hospitals, and other tortfeasors are being held accountable for their actions.

If you or someone you know has been a victim of medical malpractice, please contact our office today for a free consultation to see if we can be of assistance.