Ross v. Dietrich

240 N.E.3d 251

David M. ROSS, personal representative,¹ &

another²

v.Gretchen W. DIETRICH.

No. 22-P-1227

Appeals Court of Massachusetts, Middlesex.

Argued January 4, 2024

Decided July 19, 2024

Medical Malpractice. Negligence, Medical malpractice. Jury and Jurors. Practice, Civil, Examination of jurors.

Civil action commenced in the Superior Court Department on April 5, 2018.

The case was tried before John P. Pappas, J.

Chester L. Tennyson, Jr., Hingham, for the plaintiffs.

Tory A. Weigand, Boston, for the defendant.

Present: Rubin, Ditkoff, & Grant, JJ.

DITKOFF, J.

The plaintiffs, David M. Ross and William J. Ross, personal representatives of the estate of Margaret E. Ross (decedent), appeal from a judgment in favor of Dr. Gretchen W. Dietrich after a Superior Court jury found her not negligent in her medical treatment of the decedent. The sole issue on appeal is whether the trial judge abused his discretion in setting limitations on attorney-conducted voir dire of the prospective jurors. Concluding that the trial judge acted within his discretion in replacing the plaintiffs’ proposed jury voir dire questions with alternative questions while allowing reasonable follow-up, we affirm.

1. Background. The plaintiffs "ha[ve] not provided us with a transcript of the evidence presented at trial, which limits our ability to review [their] claims." Paiva v. Kaplan, 99 Mass. App. Ct. 645, 646 n.2, 169 N.E.3d 1218 (2021). The parties have provided us with transcripts only of the jury empanelment and the jury instructions. So far as we can discern, the decedent was seen by a nurse practitioner at Somerville Family Practice on March 31, 2015, after experiencing a "whitish plaque" on her tongue. The nurse practitioner treated her for an external yeast infection, and did not test her for diabetes.³

On April 6, 2015, the decedent called Somerville Family Practice complaining of nausea and vomiting. The doctor, who was employed by Mount Auburn Hospital but treated patients of Somerville Family Practice, talked to her over the telephone and then prescribed an antiemetic. Three days later, the decedent died from diabetic ketoacidosis.

The plaintiffs filed an action on behalf of the decedent’s estate, alleging that the doctor was negligent. So far as we can tell, the plaintiffs’ theory of liability was that the doctor should have directed the decedent to be seen immediately in person, and that this would have resulted in the discovery of the decedent’s undiagnosed diabetes in time to save her life. The defense theory was that the doctor’s actions were appropriate in light of the limited information available to her.

Prior to trial, the plaintiffs’ attorney requested attorney-conducted voir dire and submitted the following twelve questions:

"1. Do you have any feelings against medical malpractice lawsuits?

"2. Are you, a member of your family or a close friend a health care professional?

"3. Knowing that this is a medical malpractice case, would you tend to favor the doctor even a little bit, at the outset before hearing any evidence?

"4. Do you believe that a patient or patient’s family should be allowed to sue a doctor for money damages if the patient has been injured and died as a result of the negligence of the doctor?

"5. If a doctor’s treatment was negligent, meaning below the professional standards required of her, but she did not intend to harm the patient, would you have any difficulty in holding the doctor responsible for all of the harm caused?

"6. There are going to be experts on both sides of this case. They will not agree on much. Will you be able to listen to the evidence, the judge’s instructions and make an assessment of which expert to believe or will you say if there is no consensus between the experts I simply will not find in favor of the patient’s family?

"7. You are not allowed to let sympathy affect your decision. Can you assure us that you will not let your sympathy for the family of the person who died affect your decision in this case? That you will base your decision only on the evidence and the law even [if] you feel sorry for the patient’s family?

"8. Can you also assure us that you will not let any sympathy for the doctor affect your decision in this case? That you will base your decision only on the evidence and the law even [if] you feel sorry for [the] doctor?

"9. One of the claims in this case is for the wrongful death of a 51 year old. The lawsuit seeks compensation on behalf of the patient’s mother, who is now 90 years old, for the loss of society and companionship of her daughter. If the plaintiffs prove that the doctor was negligent and caused the patient’s death, is there anything about these facts that may prevent you from making a full and fair assessment of the damages?

"10. One of the claims in this case is for conscious pain and suffering of the patient who died. If the plaintiffs prove that the doctor was negligent and caused the patient to suffer, is there anything about this aspect of the case that may prevent you from making a full and fair assessment of the damages?

"11. In cases like this, the plaintiffs are not required to prove their case beyond a reasonable doubt. They are required to prove their case on the basis of more likely true than not true. Will you have any difficulty in applying this legal standard to this case or will you likely require the plaintiffs to provide more proof than more likely true than not true?

"12. Some people have difficulty sitting in judgment of another. That is something that is required of judges and when there is a jury trial, it is something that is required of jurors. As you sit here now, can you assure us that after you hear all of the evidence and the judge instructs you on the law that you must follow, that you will be able to carry out this important duty and judge this case based only upon the facts and the law?"

The trial judge declined to ask the questions because "[t]oo many of [them] … [were] almost over the line in prejudging the case." Instead, the judge indicated that he would ask six individual voir dire questions and promised the parties "an[ ] opportunity for some reasonable follow-up." These were the trial judge’s six questions:

1. "Do you have any strong feelings about people who seek money in a lawsuit?"

2. "Have you, any member of your immediate family or a close personal friend ever filed or considered filing a lawsuit against a healthcare provider?"

3. "Have you … ever had a negative experience in a hospital with a nurse or a doctor?"

4. "Ever been employed in a hospital, by a hospital, physician, medical group, healthcare facility or any other medical organization?"

5. "Have you ever suffered from a medical condition that you believe was caused by improper or inappropriate medical care of any kind?"

6. "And do you have any particularized familiarity with diabetes?"

After hearing the trial judge’s six questions, the plaintiffs’ attorney requested that the prospective jurors be asked if "they have any feelings against medical malpractice lawsuits." The trial judge declined to ask that and told the plaintiffs’ attorney that he could not ask it either. The trial judge explained that the prospective jurors "know it’s a medical malpractice case. I’m going to ask them generally if they have any biases or opinions. I’m just going to cover it that way. I’m not going to let you get into any questions that get on the line in prejudging the case." The trial judge further explained that his "general questions are questions about bias or is there any reason why they couldn’t be a fair and impartial juror in this case based solely on the evidence … that’s presented to [them]. If they have a bias, I think it’s going to be flushed out that way."

The plaintiffs’ attorney argued that "no one thinks that they are not biased, they’re not prejudiced. That’s why sometimes a much more pointed question needs to be asked." The trial judge explained,

"[The prospective jurors are] going to know from the get go from my preliminary comments and description of the case that this is a medical malpractice case. So I appreciate you looking to peel the onion a little bit further, but once we start getting into those types of questions, I think, you know, I just think it gets too close to - even if it’s not prejudging, I think it’s covered by the other information that they’re going to have and the questions that are going to be put to them, both by the questions they already answered in their confidential juror questionnaires, the subsequent questions I’m going to ask them as a group and then the individual questions I’m going to ask them once they get into the witness box."

The plaintiffs’ attorney objected to the exclusion of the questions.

Voir dire began. Before questioning prospective jurors individually, the trial judge explained to them that this was a medical malpractice lawsuit. The judge asked them as a group, "Is there anything about this case that gives you concern about your ability to be a fair and impartial juror in your ability to render a true and just verdict based solely on the evidence and the law that’s presented to you here in this courtroom?" The trial judge also said, "At the end of this case, I’ll instruct you on the law, which you’ll then apply to the case that was presented. Would you have any trouble deciding this case based only on the evidence at trial and the legal instructions I explain[ ] to the jury?"

The first prospective juror was called for individual voir dire, and, after the trial judge asked his six questions, the following exchange took place between the plaintiffs’ attorney and the prospective juror:

Plaintiffs’ attorney: "Bearing in mind that you’re in the medical field, you’re a registered nurse, and I represent the estate of the lady who died, am I starting off a little bit behind the starting line from the get go or right at the starting line?"

Prospective juror: "I’m not sure I understand the question."

Plainti...