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Charleston, West Virginia, Wrongful Death Case Could Face Retrial

Posted on Oct 01, 2008
According to the West Virginia Record, a doctor and hospital were cleared of wrongful death charges by a jury in June 2006. However, because of an appeal that claims that two of the jurours were biased may bring the case to a retrial in the West Virginia Supreme Court.

In 2000, Phyllis Macek died during an emergency colonoscopy at Weirton Medical Center when her doctor, Carl Jones, perforated her colon during the surgery. The medical malpractice and wrongful death court case, brought in by the administrators of Phyllis Macek's estate, Robert and Lawrence Macek, occureed at the Brooke Circuit Court.

Now, two years after the decision was made that a wrongful death did not take place, the Mackets have argued that jurors David A. George and Glen Stolburg should not have sat in on the case and that there should be a retrial.

Initially, during the questioning of the juror pool, six jurors were struck from the case "for cause" although only four were ultimately removed. Despite some biased answers from George and Stolburg, they remained on the case.

George was in question after he mentioned that many medical malpractice suits were frivolous and the result of greed. They also found that he was biased because he knew a Wheeling, West Virginia doctor personally who had lost a million dollar law suit.

"Mr. George did state in his Questionnaire in response to if he could return a verdict against Dr. Jones if he found him negligent: 'If I believe that his guilt is proven beyond a reasonable doubt, I would probably have no choice,'" the Court stated in its order. "Mr. George's incorrect assumption of the standard of proof in a civil medical malpractice case, as opposed to a criminal case, is very common among prospective jurors and does not readily indicate a bias."

The other juror, Stolburg, may have answered a question untruthfully by saying that he had not read, heard, or discussed the subject of medical negligence actions, lawsuits, or liability crisis. However, Stolburg works for Ogden Publishing, which is very vocal and biased in its position on medical malpractice trials. Stolburg, however, argued that although he sold the paper, he didn't often read it.

"If questions were raised, the judge would individually call them in his chambers and qualify them," Brooks said at the Supreme Court oral hearing. "I think a clear reading of the transcript shows a lack of bias."

The doctor and hospital hold that neither jury was biased and that the court ruling should stand.

"In both instances, the totality of information provided by Mr. George and Mr. Stolburg never reached the threshold for bias and prejudice that justifies a characterization of questioning of either of them as 'rehabilitation,'" the brief they filed with the state Supreme Court states.

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