Med Mal News

Pennsylvania's Supreme Court is considering an unusual medical malpractice case, in which an alternate juror was inexplicably substituted for one of the 12 primary jurors just before deliberations began. The substitution in Bruckshaw v. Frankford Hospital was made by a tipstaff, without notice to the judge or to the attorneys on either side of the dispute, and the change was not noticed by any of them until several days after the defense verdict was read. No explanation for why the switch took place has ever been discovered. The attorney for both defendant doctors, Dean F. Murtagh of Philadelphia's German Gallagher & Murtagh, argued before the high court that no prejudice resulted from the substitution because it was made prior to the start of deliberations and all the primary and alternate jurors had been vetted and approved by both sides. “You're entitled to a jury of 12, but not any particular 12,” he said. The plaintiff's attorney, George J. Badey III of Philadelphia's Badey Sloan & DiGenova, countered that the juror switch was so outrageous that he should not be required to prove prejudice resulted. However, even if the “harmless error” test were applied, Badey argued his client should prevail, as the substituted juror cast the deciding tenth vote in favor of the defense. Badey concluded his case by stating that allowing the verdict to stand “would open the door for tampering of the jury system.” One of the judges, Justice Seamus P. McCaffery, seemed to agree, noting that even though it was less likely that jury tampering was the motive in the large county in which the trial court sat, such might not be the case in a smaller county, where the court officer might know the jurors personally. In such cases, Judge McCaffery stated, trading jurors out without notice to the litigants and the court would almost be “like having a trial in the backroom.”

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