Philadelphia Top Injury Lawyer Blog

One common area of practice for me as a Pennsylvania medical negligence lawyer is failure to diagnose. When the disease is a serious one that benefits from early intervention, a doctor's failure to diagnose it can be quite damaging. And when the failure to diagnose is so unprofessional that it fails to meet ordinary standards of care for the Pennsylvania medical community, it absolutely is a form of medical malpractice. That was the allegation in Sawicki v. New Britain General Hospital, a Connecticut Supreme Court ruling. Brenda Sawicki sued a medical corporation, Mandell & Blau, P.C., for failure to diagnose her breast cancer. After trial, improper pre-deliberation juror discussions led Sawicki to allege juror misconduct and request a new trial. This was denied at the trial court level, but reversed by the Appellate Court and affirmed by the state's high court.

Sawicki had a routine mammogram in August 2000 that uncovered unusual masses. The radiologist recommended a followup ultrasound, but another radiologist ordered another mammogram instead and, deciding that it was inconclusive, recommended that she come for an exam on her normal schedule. Ten months later, Sawicki returned and was diagnosed with malignant breast cancer. She quickly underwent a single masectomy and reconstruction. In 2002, she sued, alleging that the failure to perform the sonogram and the failure to follow up on the inconclusive mammogram were malpractice. The defendant argued that Sawicki herself was negligent in failing to come to a followup appointment in December 2000 or follow recommended therapies after her masectomy.

The jury in her 2006 trial found for the defendant. However, Sawicki was approached after the verdict by two jurors, P and G, who alleged that a juror named M had sworn he was biased against Sawicki within two days of the trial's start. This juror was permitted to stay on the jury despite having said as much to the judge. A later misconduct hearing found that multiple jurors had discussed the case before it was closed. Sawicki moved for a new trial, and after the misconduct hearing, the trial court agreed that there was misconduct. However, it disagreed that any prejudice to Sawicki resulted. Sawicki appealed to the Appellate Court, which reversed, finding that the trial court improperly relied on the jurors' statements that they kept open minds despite the discussions. The defendant appealed.

The Connecticut Supreme Court upheld the Appellate Court, finding that Sawicki had been prejudiced by the jurors' discussions. It agreed with the defendants that the trial court applied the proper test to determine whether the juror misconduct had prejudiced Sawicki. However, it also found that the trial court was wrong in its results for that test -- that Sawicki had indeed been prejudiced. Indeed, the high court found that "the repeated instances of misconduct... were so severe and egregious that no reasonable fact finder could have concluded that the plaintiff had failed to establish prejudice." Two jurors had outright taken positions against the plaintiff very early in the case; others had made statements suggesting they had taken sides. This presents a danger that the jurors will pay attention only to the facts that strengthen their case, the court noted. Furthermore, there were so many such remarks from so many jurors that the bias was clearly not isolated, the court said. Thus, it reversed the trial court's decision to deny a new trial.

As a Pennsylvania medical negligence lawyer, I'm pleased that Sawicki's family will get the new trial -- although the opinion notes that Sawicki has died during the pendency of the appeal. Though any justice may be too late for her family, I still believe this case sends an important message about the way juries behave. Jurors are not permitted to discuss cases before they're fully presented for good reason: It creates prejudice through which they are likely to filter all of the facts being presented to them. This makes it impossible to have a fair trial, and thus, justice is not really done. (Of course, one might also say it's a waste of the time of the people presenting facts on both sides.) As a Philadelphia birth injury lawyer, I will take vigorous steps to protect my clients from this kind of juror prejudice.