Personal Injury and Fetal Monitoring

Blue Eyes - photo by JoAnn Sturman

Scott Sturman
fliesinyoureyes.com

This year my wife JoAnn attended a fetal monitoring conference in Las Vegas.  Both doctors and nurses attended the course where they reviewed interpretation of fetal heart rate and its relationship to uterine contractions during the delivery process.  Accurate analysis of this real time data is crucial to the well being of both mother and baby during labor.  It is a technical subject primarily of concern to medical personnel who work in labor and delivery and attorneys who litigate malpractice cases stemming from poor outcomes.

A mock trial was conducted at the conference which showcased personnel injury and defense attorneys, who specialize in obstetric malpractice law.  Their comments regarding trial strategy, particularly jury selection, were sobering but not unexpected.

Jury selection is the first, second, and third most important aspect of a personal injury case.  The personal injury attorney averred he was looking for compassionate jurists who could identify and sympathize with his client.  He avoided selecting teachers and those working in the medical profession.  From the perspective of the personal injury lawyer, the penchant for relying on the facts, asking questions, and dealing with problems logically disqualifies a juror.  It is not surprising these characteristics are exactly the traits desired by the defense attorney.

The audience asked the attorneys how the behavior and personal interests of potential jurors could affect the trial.  Although these questions were hypothetical and often asked for comic effect, this is deadly serious territory for lawyers.  The decision whether to retain or disqualify a jurist rested heavily on intuition.  The ability to predict a person’s reaction to testimony, based on occupation, hobbies, and book preference is an art.  An inability decipher these connections means the difference between winning and losing and a lot of money. 

There is something inherently amiss with a system where the delicate balance of justice can be influenced more by sobbing testimonials and stagecraft than actual events of the case.  It is time to dispense with theatrics and admit in medical malpractice cases, the jury system is too capricious and vulnerable to manipulation.  For once the Europeans have the right idea of using three judge panels to rule on these matters.  Should a verdict be rendered based on a prospective juror’s belief in witchcraft, passion for tattoos, political affiliation, church attendance or preference for People Magazine or The American Rifleman?