Shoulder Dystocia/Brachial Plexus Verdict in Ohio
In Jackson v. Sunforest OB-GYN Associates, the Ohio Court of Appeal affirmed the trial court’s decision in a medical malpractice shoulder dystocia/brachial plexus case not to strike for cause two jurors who said they were biased towards doctors. The jury then found that an OB-GYN was not negligent in delivering a baby who suffered a brachial plexus injury.
I do not like this opinion. The Ohio Court of Appeal believes, as most jurisdictions do, that as long as the juror says they can be fair and reasonable in spite of their bias, it is not an abuse of discretion of the trial judge to sit the jurors. But the truth is that even if you are Rush Limbaugh biased, you are going to say that you can be fair and reasonable. So practically, you are tipping off your bias as much as you can when you say “I have a bias.”
One question I would have for the plaintiff’s medical malpractice lawyer is why not use a preemptive challenge against the jurors? Unless the rest of the jury panel was awful – I’m thinking doctors and nurses awful – I cannot imagine why these jurors were not stricken.
