Jewish Exponent: Doctor’s Lawyers Say He Was Mistreated Due to His Judaism
May 8, 2024

by Jarrad Saffren in the Jewish Exponent

Dr. Peter Gross is a family medicine specialist in Philadelphia. He’s also Jewish.

A malpractice case filed against him in 2019 accused him of failing to recognize the impending heart attack of a patient who ended up suffering permanent cardiac damage, according to an Oct. 12 article in The Legal Intelligencer.

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Regardless of the charges, Gross gets his date in court. Except in the Jewish doctor’s case, he really didn’t.

Gross’ trial was scheduled to begin on Sept. 25, 2023. That was also the date of Yom Kippur, the holiest day on the Jewish calendar. The doctor’s lawyers asked the judge to postpone the trial for a day. Continuances are a normal part of the legal process.

The request was denied.

Gross missed the first day of his trial.

The allegation against him was that he was not attentive enough. Now, he looked like he wasn’t attentive in court either, according to a brief filed by Duane Morris LLP, the firm representing the doctor.

Plus, on the first day of the trial, the judge told Gross’ lawyer that he could explain why the defendant wasn’t in court. That, according to the brief, introduced the possibility of bias into the proceeding.

The jury returned a $3.5 million verdict against Gross and his practice, wrote a media relations manager for Duane Morris LLP. Duane Morris has filed a brief with the Superior Court of Pennsylvania requesting a new trial for Gross.

“It’s a simple constitutional civil liberty matter,” said Rabbi Yaakov Menken of the Coalition for Jewish Values, a Baltimore-based Orthodox organization that joined an amicus brief on Gross’ behalf. “There is a right to freedom of worship in this country, and there is also a right to be present at your own civil, as well as criminal, trial.”

When two rights come in contact, a solution is not difficult, according to Menken. Maintain both. In this case, that should have meant offering accommodation for one day.

“It’s a black-and-white religious liberty matter. It should be extremely troubling to all minority religious faiths,” Menken said. “Imagine the court scheduling a court date for Christmas or Easter. It will never happen.”

“There’s never going to be a court session on Sunday, much less Christmas or Easter,” the rabbi continued. “Under American law, minority faiths are worthy of the same consideration whether it is the Sabbath, Yom Kippur or Eid.”

Menken also reached the same conclusion as Gross’ lawyers. The decision left the court with two options.

“Either leave the impression Dr. Gross was unconcerned that he didn’t bother to show up or to tell the court that he was doing a Jewish observance, therefore inviting antisemitism,” he said.

The introduction to Duane Morris’ brief to the Pennsylvania Superior Court states, “This is not a typical medical malpractice case. Rather, it hinges on a fundamental constitutional issue that has implications far beyond the professional liability context: whether a trial can prioritize run-of-the-mill, non-constitutional scheduling concerns over a litigant’s constitutional right to freely exercise his religious beliefs.”

The counsel for the plaintiffs objected to the request for accommodation, according to the brief. They argued that their expert witness would only be available on Sept. 25. The court sided with the plaintiffs. It also dismissed a Jewish juror because the juror planned to observe Yom Kippur.

Duane Morris further argued that the court gave Gross a “Hobson’s choice,” or a choice with no real alternative.

“The trial court incorrectly viewed scheduling and docket control as ends in themselves,” the brief stated.

“Indeed, by forcing Dr. Gross to prioritize one constitutional right over another and refusing even to consider the possibility of accommodating both rights through a brief continuance or other means, the trial court violated both the United States and Pennsylvania constitutions,” it continued.

The First Amendment to the U.S. Constitution guarantees freedom of worship by stating that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Article I, Section 3 of the Pennsylvania Constitution states, “All men have a natural and indefeasible right to worship almighty God according to the dictates of their own consciences.” It also says that “no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.”

Originally published in Jewish Exponent

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