Voir Dire and Medical Negligence Cases: The Automobile Connections

By Robert A. Zielke

Medical negligence attorneys face the challenge of convincing jurors that a defendant physician is negligent. Defining the concept of negligence in understandable terms is often a key in obtaining a plaintiffs medical negligence verdict. It is important for the plaintiffs attorney, to not only define, but to control the definition of negligence in the professional negligence action. One method to achieve this goal is by discussing automobile cases during voir dire.

The standard against which physicians are judged regarding negligence is as follows: Did the physician meet the standards of reasonable prudent care in the State of Washington at the time then existing. In other words, did the physician act as a reasonably prudent physician in the care and treatment rendered to the patient. First, this is an objective standard just as in auto cases. Second, due to the technical words and often the perceived complexity of health care delivery, some jurors have difficulty in applying a reasonably prudent standard to physician conduct. Third, propaganda by the insurance companies, including advertisements calling for tort reform, has created prejudice to a finding of negligent physician care.

Discussing automobile collisions hypothetically in voir dire can be used to explain the concept of negligence and set the parameters of negligence in easily understood terms.

The concept of negligent fault, for example, can be defined by asking the jury panel the following: If a person backed into a parked car on the street, who is liable? Of course, the person who failed to keep an appropriate lookout was the at fault party. The panel can then be questioned regarding how they know that the person that failed to keep the appropriate lookout was negligent. This is a first step toward defining the concept of negligence.

Further definition can occur by querying the panel as follows: Is a driver that backs into a parked car at fault for failure to keep an appropriate lookout even if they look prior to backing up, but failed to see the parked vehicle? The issues of what a reasonably prudent driver would do and see in the same or similar circumstances can be followed up with the panel.

The trial attorney can build upon the standard of reasonable prudence by following up with a similar question as follows: What if a driver fails to see a stop sign that is obviously present, runs through the intersection and crashes into another vehicle; who is at fault? Panel discussion should be then directed as to what a reasonably prudent driver would see under the same or similar circumstances.

Even though these brief examples are illustrative of methods of defining fault, as well reasonable prudence, they can also be utilized to discuss the issue and concept of skill, training, ability and experience of the driver and of a health care provider. The panel can then be questioned how it is that one knows that a driver that runs a clearly visible stop sign is at fault; clearly, based upon our skill, training, ability and experience as drivers, we have learned the rules of the road and how to act under certain circumstances. The trial attorney can then discuss the fact that physicians have skill, training, ability and experience in the practice of medicine. That judging the conduct of the physician against the skill, training, ability, and experience of a reasonable physician, follows that of a reasonable driver.

An additional benefit flows from using automobile collision analogies during voir dire. Once these analogies are used and discussed with the jury, the plaintiffs trial attorney has then set the stage for similar analogies during the trial of the case and the case summation. For example, the trial attorney can ask its expert witnesses whether the defendants physicians care was analogis to failing to see a stop sign that any reasonable physician would have seen. In closing, this same analogy can be carried forward in the summary of the case, to again further define and control the concept of fault and reasonable prudence.

A trial attorney handling any professional negligence case should consider adding automobile collision analogies to his/her voir dire repertoire. Discussing auto collision cases can assist the trial lawyer not only in defining and controlling the definition of negligence, but can be utilized as analogies throughout the case and in summation.

Zielke, Trial News, Washington State Trial Lawyers, Vol. 32, No. 8, at 10 - April 1997