Peremptory Challenges: Street v. UCMC 2
This post is part 2 of a series on the recent Maryland medical malpractice case of Street v. Upper Chesapeake Medical Center, Inc. The Appellate Court of Maryland issued a reported opinion on March 1, 2024. In part 1, I addressed the issue of when an expert is in a “similar specialty” to that of the defendant doctor under CJP 3-2A-02(c)(2)(ii)(1)(B). In this part 2, I will address the Court’s ruling on the issue of peremptory challenges.
Facts
Here, I will repeat the basic facts of the case. The plaintiff sued a hospital, an emergency room doctor, a vascular surgeon, and their practice groups. She alleged that as a result of malpractice, she had to undergo a below-the-knee amputation. After a two-week trial, the jury then returned a defense verdict, and the plaintiff appealed. (Op. at 1).
On June 16, 2017, the plaintiff went to the emergency room. Her right foot was numb, pale, and cool. An ultrasound showed an abnormal Ankle-Brachial Index (ABI). After a physical exam, Dr. Lu found no emergent vascular compromise to warrant emergent intervention, but due to the low ABI, she recommended follow-up with vascular surgery if symptoms continued (Id. at 3-4).
On June 18, the plaintiff then returned to the ER, reporting that the pain was worse and the top of her foot was icy cold. Dr. Bassi admitted the plaintiff. The ER doctor requested a vascular surgery consultation. The consultation did not occur for two days. (Id. at 5-6).
Peremptory Challenges
Lawyers use peremptory challenges during jury selection. They allow a lawyer to excuse a juror from serving without giving any reason. However, they differ from challenges for cause, in which the lawyer has to provide an explanation and request the circuit court exclude the juror. An example of a challenge for cause would be that the prospective juror knows one of the parties.
In a civil litigation case in Maryland, each side gets four peremptory challenges. Suppose there is more than one party on a side. In that case, the circuit court can give separate peremptory challenges to each party on one side if it finds that there are “adverse or hostile interests” between those parties. Maryland Rule 2-512(e)(2).
The plaintiff filed a motion in limine requesting the trial court to deny additional peremptory challenges. The plaintiff argued that there was no adverse or hostile interest because the defendants had not filed cross-claims against each other. (Op. at 54-55). The Appellate Court found that the record supported the trial court’s conclusion that the defenses could have been adverse to each other. (Id. at 59). The Court ruled that the potential for adversity was the issue and that it was irrelevant that the conflicts did not occur during the trial.
Commentary
When considering additional peremptory challenges, the emphasis on the potential for the adversity of interest creates a fiction in Maryland medical malpractice cases because, as a practical matter, that adversity rarely comes to fruition. Multiple defendants almost always present a unified defense and do not point fingers at each other. The defendants know that when they blame each other, that is helpful to the plaintiff.
So what is the solution? It is what the plaintiff in Street advocated. The issue of peremptory challenges comes up at the time of trial. At that point, look at whether the defendants have taken any action adverse to each other. Have they filed cross-claims? Have the defense experts in deposition been critical of another defendant? If the answer is no, this will be another united defense case. In that instance, giving the defendants extra peremptory challenges would be unfair based on a potential that will not occur.
In the next Blog post, part 3, I will then discuss the Court’s ruling on informed consent.
Mark Kopec is a top-rated medical malpractice lawyer. You can contact him on 800-604-0704 for a free consultation. The Kopec Law Firm is located in Baltimore and pursues cases throughout Maryland and Washington, D.C. Thank you for reading the Maryland Medical Malpractice Lawyer Blog.