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BARBARA STARR v. ALLEGHENY GENERAL HOSPITAL (10/01/82)

filed: October 1, 1982.

BARBARA STARR, APPELLANT
v.
ALLEGHENY GENERAL HOSPITAL, JAN W. MARATTA AND LAIBE A. KESSLER



No. 154 Pittsburgh, 1981, Appeal from the order of the Court of Common Pleas, Civil Division, Allegheny County, No. GD 75-16835

COUNSEL

Joseph D. Shein, Philadelphia, for appellant.

Gilbert S. Solomon, Pittsburgh, for Allegheny General, appellee.

David H. Trushel, Pittsburgh, for Kessler, appellee.

Hester, Johnson and Montemuro, JJ.

Author: Montemuro

[ 305 Pa. Super. Page 219]

This is an appeal from an order of the Court of Common Pleas of Allegheny County denying appellant's motion for a new trial. The facts in the instant case can be summarized as follows:

On July 19, 1973, appellant, Barbara Starr, was struck in the head with a glass bowl thrown by her husband. She was rushed to Sewickley Valley Hospital where she received emergency treatment. While in the emergency room, appellant suffered a grand mal seizure, losing consciousness. Following her recovery from the seizure, appellant was transferred to Allegheny General Hospital where she was placed under the care of Doctor Laibe A. Kessler and Doctor Jan W. Maratta. Appellant was diagnosed as suffering from a depressed skull fracture and following various medical tests and examinations, Dr. Kessler recommended corrective surgery to elevate the depressed fracture. Appellant agreed to the operation. The surgery was performed and appellant was placed in post-operative care. Appellant, sometime thereafter during her post-operative treatment at Allegheny General Hospital, developed blurred vision, slurred speech and experienced difficulty in coordinating her bodily movements. Appellant filed suit against Allegheny General Hospital, Dr. Kessler and Dr. Maratta alleging that

[ 305 Pa. Super. Page 220]

    injury to her cerebellum was the cause for her permanent partial incapacitation which resulted from the negligent post-operative treatment she received while under their care.

The case was tried before a jury which returned a verdict in favor of all the defendants below (appellees herein). Appellant's motion for a new trial was denied and she has taken this appeal from that order. For the reasons stated below, we affirm the order of the lower court.

Appellant's first contention is that the lower court erred in permitting a deputy court clerk to read the voir dire questions. Appellant refers to this procedure as "antiquated", "archaic and blatently erroneous" which destroys "the very essence of the voir dire examination." The essence of voir dire, in appellant's view, is that someone "learned in the law" must conduct the examination before it can be found that the procedure does not violate due process. Appellant cites no authority for this proposition.

The purpose of the voir dire examination is to secure a competent, fair, impartial and unprejudiced jury. Commonwealth v. Christian, 480 Pa. 131, 389 A.2d 545 (1978); Commonwealth v. Short, 278 Pa. Super. 581, 420 A.2d 694 (1980); Commonwealth v. Fulton, 271 Pa. Super. 430, 413 A.2d 742 (1979). To achieve this goal the trial judge has broad discretion in determining the scope, manner and procedure of the voir dire examination, and his decisions will not be reversed in the absence of palpable error. Bentivoglio v. Ralston, 477 Pa. 24, 288 A.2d 745 (1972); Commonwealth v. Hoffman, 263 Pa. Super. 442, 398 A.2d 658 (1979); Commonwealth v. Cephas, 213 Pa. Super. 278, 247 A.2d 662 (1968).

Appellant does not argue that this procedure deprived her of the opportunity to ask certain questions or that the procedure caused a partial and prejudiced jury to be impaneled. Rather, appellant contends that a deputy clerk, reading questions approved by the court, is, in and of itself, inherently prejudicial. While the procedure employed in

[ 305 Pa. Super. Page 221]

    this case may not be the most judicious way to conduct a voir dire examination, we do not believe it to be violative of due process or an abuse of discretion by the trial judge. The court determined here what questions were to be asked and appellant was free to submit inquiries for the court's approval. Further, the court was available during the examination to rule on any objection raised by the parties. Since the scope of voir dire was structured by the court, the actual reading of the questions was but a ministerial act which did not impede the capacity of the examination to ferret out potential jurors incapable of rendering an impartial decision. We find, therefore, that the lower court did not abuse its discretion in permitting a deputy court clerk to read the voir dire questions to the veniremen.

Appellant's second contention is that the lower court erred in refusing to include in the voir dire examination two of appellant's proposed questions pertaining to possible jury bias. The questions denied were as follows:

11. Would any of you if you were otherwise satisfied under the evidence and by the charge of the Court that there was negligence on the part of one or more defendants in the present action which caused or substantially contributed to plaintiff's injuries, hesitate to find a verdict and award damages against such defendant either because he is a physician or it is a hospital?

12. Do any of you have any feelings or beliefs whatsoever concerning the propriety of bringing a malpractice action against a physician or hospital?

Although a juror's possible prejudice or bias concerning malpractice actions against physicians or hospitals is a relevant consideration which could affect a particular juror's impartiality, the specific inquiries proposed by appellant in this case were rather ambiguously phrased. While questions of a general nature are the preferred mode of conducting voir dire, inquiring as to a juror's "feelings or beliefs . . . concerning the propriety of bringing a malpractice action" or whether a juror would "hesitate" to find against a

[ 305 Pa. Super. Page 222]

    physician or hospital if the evidence established negligence on their part do not necessarily call for responses indicating a juror's fixed opinion in such matters. As stated in Commonwealth v. McGrew, 375 Pa. 518, 524, 100 A.2d 467, 470 (1953):

"Neither the Commonwealth nor the defendant is entitled on the voir dire of the jury to inquire concerning what the jurors' present impressions or opinions are. The only question . . . is whether they have formed a fixed opinion."

In a similar vein this court has found that:

". . . a prospective juror's 'feelings' concerning the presumption of innocence to which appellant was entitled were of no moment, except to the extent that those feelings were unalterable. Since appellant's questions did not address the fixed nature of such feelings, it need not have been asked." Commonwealth v. Legree, 256 Pa. Super. 128, 135, 389 A.2d 634, 637 (1978).

In the instant case, the questions as worded, invited confusion in addition to inappropriate responses not affecting the relevancy of a juror's fixed inability to render an impartial judgment. Therefore, we find that the trial judge did not abuse his discretion in refusing to include appellant's proposed questions in the voir dire examination.

Appellant's next contention concerns the propriety of the lower court's ruling permitting the appellant's expert witness to be impeached by the contradictory testimony of another witness called by the defense. Appellant argues that the contradicted testimony involved a collateral matter which is never a proper subject for impeachment in this particular manner. While appellant has correctly stated the ...


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