Can positive peer-review determination “poison” a jury?

Bridenstine v. Saint Francis Hosp., 2013 WL 2182303 (Conn. App. 2013)

This seems like a pretty wild proposition, but the Connecticut Court of Appeals thought differently.

Connecticut’s peer review privilege, General Statutes § 19a–17b (d), holds that “The proceedings of a medical review committee conducting a peer review shall not be subject to discovery or introduction into evidence in any civil action for or against a health care provider arising out of the matters which are subject to evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to the content of such proceedings…”

This privilege was at play in a suit that attributed malpractice to a surgeon for failure to control her patient’s postoperative complications that resulted in the patient’s death. The surgeon’s attorney asked her the following series of questions:

Q: During the course of this entire litigation, from the time you were named a defendant up until today, has any one of the attorneys for the decedent ever asked if your care of the decedent was reviewed and evaluated at St. Francis Hospital?

A: No.

Q: Was it?

A: Yes, it was.

Q: What was it?

At this point, the trial judge stopped the attorney’s questioning about the peer review decision.

After trial, the jury returned a verdict in the surgeon’s favor.

The plaintiffs moved for a new trial arguing that the surgeon’s attorney “poisoned” the jurors by improperly conveying to them that the surgeon was cleared by her peers and that the plaintiffs nevertheless chose to sue her for malpractice.

The trial judge agreed with the plaintiffs and ordered a new trial.  This decision was upheld on appeal. The Court of Appeals held that —

“The trial court was in the best position to sense the atmosphere of the trial and to assess its probable effect of the improper questioning and its implications on the jury’s deliberative process. On that basis, it determined that the plaintiffs had been prejudiced by the questioning, and thus that they were entitled to a new trial. Because the trial court’s judgment must be afforded great weight, and this court is in no position to second guess its carefully considered ruling, we cannot conclude that the court erred in finding that the plaintiffs were prejudiced and were deprived of a fair trial.”

I find it hard to believe that positive peer-review information can prejudice jurors. At the same time, the defendant’s attempt at prejudicing the jury deserved punishment.  What her attorney did was objectionable.