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Question about a jury decision (long)(17 posts)

Question about a jury decision (long)Kristin
Sep 25, 2002 1:15 PM
I've always wondered if we (the jury) made the right choice. We felt as if our hands were tied with the wording of the law. I wonder if any of you lawyers would offer your thoughts.

Here's the skinny on the case:

An Obgyn performs a laparoscopic investigation on a woman in her 50's with abdominal pain. Two days later the woman is rushed to the hospital in septic shock where 5 liters of acid are removed from her abdomin. The Obgyn and a general surgeon perform the surgery and locate a whole in her stomach. The enters a coma for 3 months, is on a respirator for 6, loses a kidney and has permanent lung scaring. The plaintiff accuses the doctor of negligence, claiming he poked a whole in her stomach. The defendant argues that she developed a permeable ulcer which ruptured shortly after the surgery. All of the medical testimony was contradictory and way over our heads. In the end, we (the entire jury) felt that the doctor was to blame. The odds that an ulcer had formed and permeated in just two days are astronomical. But we found for the doctor any way. Here's why:

The law read that we must

a) Find beyond a reasonable doubt that the doctor caused the damage (which we did)
b) Find that the doctor did not use reasonable care according standard medical practice to avoid the injury
c) I can't remember this point now because we never got past point B

We got stuck on point B because no one who testified established that there was ANY standard of procedure for laproscopy. It was new technology in 1995. The doctor had forgone a couple precautionary measures including a gastro-intestinal tube to make sure the stomach didn't distend during the surgery. The doctor also argued that he felt the tube provided more risk than benefit (throat injury on insertion). The anesthesiologist also testified that there were no indications she was distended or swallowing air (which could bloat the stomach and placed it into harms way.)

As jurists, we struggled with our decision and wondered if we understood the law correctly. We asked the judge for clarification, but he simple reiterated the same verbiage. We didn't feel we could prove the doctor didn't use reasonable care and there were no standards at the time. But we wished he could be called to account because we felt that he did actually do the damage. Thoughts?

I hope I don't ever have to sit on a medical malpractice jury again.
what else could you do?mr_spin
Sep 25, 2002 1:36 PM
If no standards existed at the time, you can't hold the doctor to them.

The question I would have is, did the woman know that no standards existed at the time? In other words, did she know that this was a new, possibly untried, possibly experimental procedure? If she did know and still chose to procede, she has to assume the risk.
tough without hearing the evidence or knowing lllinois lawDougSloan
Sep 25, 2002 1:37 PM
This is pretty tough to armchair quarterback with limited information.

But, your instinct is probably right from a juror's point of view. Right or wrong, if the judge instructs you on the law, specifically that you must decide one way or the other based upon certain evidence, then you must do so. If the judge said find for the defendant unless you believe based on the evidence that he failed to conform to a certain standard of care, but no evidence of that standard came into evidence, then you did the right thing.

However, if there truly was no such evidence, then the judge should have decided the case without it going to the jury -- this is sometimes called a "directed verdict." In other words, we don't trouble the jury if the plaintiff fails to offer evidence on a critical point.

Now, it's possible that some witness technically met the burden, but it just did not stand out in anyone's mind, or it was confused with something else. Then, the judge should not have directed a verdict. This is why you see trial lawyers repeating things ad nauseum, to avoid any chance that the jurors won't remember or understand something. Sounds to me like the plaintiff's lawyer failed in this regard.

Disregarding all that for a minute, keep in mind that sometimes things just happen, and there is no liability for them. People get injured by doctors all the time. That does not necessarily mean the doctor is legally responsible. Medicine is not an exact science. To be liable, the plaintiff must first prove what a careful doctor should have done, that this doctor failed in that regard, and that the failure directly caused the injury. If the plaintiff does not establish a standard for the doctor to conform to, then you can't go any further. That said, I have no doubt whatsoever that the plaintiff's laywer could have found some standard, regardless of whether it was a new procedure. Even assuming there is none, then the case may be one of "informed consent", rather than negligence; in other words, did the doctor tell the patient something to the effect that this is a new procedure, possibly experimental, and that there are some greater risks associated with it because it has not been done much before. I still can't imagine there is not some standard, though.

Rest your mind. Sounds like you followed the court's instructions, which you *swore* to do.

Doug
re: Question about a jury decision (long)TypeOne
Sep 25, 2002 3:17 PM
I understand that you never want to do something like this again, but I'm glad to hear of someone taking the time to do their civic duty and act as a juror, and that you took your duty seriously.
I congratulate you. It's not easy or fun.
You should have seen how hard I tried to get out of it thoughKristin
Sep 26, 2002 5:40 AM
LOL. I was only 3 months into a new job and admitedly hated the entire medical system in our country. During selection I stated my feelings that most doctors are crooks. But the pipsqueak little lawyer kept coming back and asking me, "Could I be fair?" (Get this, the lawyer looked like PeeWee Herman and the doctor looked like Hitler. Made for some laughs in the jury room.) Well, since I can't lie under oath (or in any situation except tardiness at work) I kept answering, "Yes." And they picked me.

This Saturday, while I was packing a bookshelf, I found the 10 checks for $17.50 I received in 1998. I guess I never cashed them. Bummers.

I am glad I did it. But it sucked. My body chose that time to launch its war againt hystimines (sp). I had serious attacks all week to the point I would cry, and couldn't go see a doctor until it was all over. I was drunk on Robotusin thru half of the case.
re: Question about a jury decision (long)tao
Sep 25, 2002 4:02 PM
Yes the odds are long that an ulcer had formed and permeated in just two days. But couldn't the ulcer have already been there, perhaps causing the pain that invoked the procedure in the first place? And that it fully ruptured two days later, nothing to do with the procedure. It just seems to me that if the hole was caused by the procedure she would have gone septic in minutes or a few hours and not days later. I don't mean to second guess, I'm sure you had more information, and since you all agreed it was his fault it probably was. Did anyone initially think there might be a reasonable chance it wasn't his fault? Just curious?
You put it nicelycarnageasada
Sep 25, 2002 5:06 PM
Considering Kristin is probably an above average juror, I'm amazed that a typical OB/GYN in my state only has to pay about $60,000 a year in insurance.
Only $60,000?Matno
Sep 27, 2002 9:04 PM
That's a phenomenally high amount of insurance. (Nobody in the country pays more than that, although that's the standard amount in quite a few places for OB/GYNs). It's no wonder that OB/GYNs are in short supply everywhere. I know that in SLC, 25 OB/GYNs quit last year because of the ridiculous insurance rates. To lose 25 specialists in a metropolitan area of less than 1 million people is huge. Something is going to have to change. Hopefully, tort reform will step in soon to limit damage awards for pain and suffering. I realize that such suffering can be severe, but jury awards have simply gotten out of hand. (I live in the Bronx, home of the famous "Bronx Jury" where awards are somewhere in the range of 40% higher than the national average. I'm sure the prevalent welfare mentality has something to do with it). People need to realize that bad things happen, and someone isn't always at fault. Accidents happen, mistakes happen. Medical malpractice laws only apply to really stupid mistakes, not innocent errors. There is a reason why doctors almost never lose, and it's NOT because they can afford better lawyers. It's often really hard not to feel sorry for the patients who are suffering (and there's nothing wrong with feeling that way), but as a juror, Kristin did the right thing. (Otherwise, what would be the point of having laws?)

Of all of the scapegoats people try to nail for the high cost of medical care, the one that usually gets overlooked, even though it is probably the single most expensive aspect of medicine, is the malpractice insurance. Without limits on jury awards for damages that have no specific monetary value, those costs will never come down. The idea of a patients' bill of "rights" will only compound this problem exponentially. Patients already have all the rights they need. What these proposed laws will give them is an incentive not to be insured and an expectation of a handout from the government. Write your Congressional Representatives and Senators today!

Sorry if that sounds like I was on a soap box. As a medical student who is also a lawyer, I kind of have a personal interest in this matter, and I hope to someday be actively involved in legislative reform of the health care industry.
Jury AwardsKristin
Sep 30, 2002 5:37 AM
I don't know what's typical, but in this case, the plaintiff was asking for $3.5 Million. Now, she was on a respirator for 6 months, and had 2 years of rehab. But the only permenant damage done was a lung capacity of 85%. So she won't be able to run the Chicago marathon or do the Handcock tower climb next year; but really her life-style after recovery wasn't drastically altered. I had a BIG problem with them asking for that much. I don't believe in getting rich because someone made a mistake, and the only time I would ever agree to that much money is if the doctor was grossly neglegent and needed to be taught a VERY BIG lesson. My personal opinion, if you need 3.5 million to console you, then you haven't gained anything positive from your experience.

If my jury had deliberated on an amount, it would have gotten quite messy. Out of all 12, I was the ONLY one not willing to agree to the full amount. It amazed me that eleven random individuals from Chicago ALL were more than happy with this settlement amount.
Jury Awards -- Juries vs. LawyersDougSloan
Sep 30, 2002 1:44 PM
I think you saw first hand that lawyers aren't to blame for excessive jury verdicts -- juries are (almost in your case). Even though I'm primarily a defense lawyer, it tweaks me a little to hear people rant about how lawyers are responsible for all these out of control runaway jury verdicts. Huh? Juries award the money, not lawyers. Further, for every lawyer who is asking for a large amount, there is another lawyer arguing for zero or a small verdict. Juries have almost their sole discretion to decide what to award, particularly for personal injuries.

Doug
But isn't it the plaintiff and the plaintiffs lawyer...Kristin
Sep 30, 2002 3:54 PM
...who establish the amount to sue for in the first place? I mean, why are they asking for 3.5 million? There is definately a problem with the American mentality--since it was so simple to pull together 11 people who would sign over the money without much thought. But the plaintiff's lawyer did have something to do with it too.

I think part of the mentality that lends people to signing over so much cash is that they believe they are taking it from insurance companies. And we all hate the insurance industry--including me. I worked for CIGNA...lousy cheapskates. But people need to think through the long term consequences. The insurance companies aren't going to just absorb the loss. It hits our wallets in the end.
Whatever happened to a jury of our peers?Matno
Sep 30, 2002 8:27 PM
I feel pretty strongly about the corrupted system of jury selection that has developed in our country. I'd be willing to bet that no jury is ever truly a random collection of "normal" citizens. They are handpicked by the lawyers, whom I dare say are not impartial! (As you well know). I really think that the whole system is an unnecessary burden that is wasting lots of taxpayers dollars and people's time. Here in NYC, they will frequently (and maybe always) summon 200+ people for jury duty just to pick 12 jurors. That, in my opinion, is absolutely ridiculous. As an example, of just how bad it is, a friend recently went to a jury selection where the first question posed to the entire group was "Is anyone here a member of the NRA?" Everyone who raised their hands was dismissed. (Which probably eliminated most of the intelligent candidates on the assumption that they could not be impartial about the law). Since when does having an opinion make you ineligible to apply the law to a specific situation?! I was under the impression that truly educated people have an opinion about most things, because they are educated.

When I clerked with a State Court judge in Utah, I can honestly say that the people who actually got chosen for jury duty were the grungiest bunch of "citizens" I ever saw, and were completely nonrepresentative of the general public in the area. People with any intelligence usually only made the jury if one side or the other ran out of exemptions. (Each jury usually had one or two people who didn't "fit in" but that's a pretty small percentage). I guess when they say criminals have a right to a trial by a jury of their peers, they really mean people just like the defendants, not the general public!
Doesn't make any sense.Kristin
Oct 1, 2002 8:27 AM
Lawyers get a chance to question a jury so that they can dismiss jurors who are partial on particular matters that could hinder that juror from making an impartial decision in the case. The fact that the lawyers on both sides of the argument must agree on a particular juror balances the equation.

How would it benefit a lawyer to select a jury of uneducated people? I can not imagine many cases. And I can only imagine a lawyer would desire a jury of non-thinkers if his case were exteremely weak. But then, the opposing lawyer would want the jury to be full of strong-minded, critical thinkers, right? So still you'd end up with a mixed pot anyway.

I believe that jury selection works well, and that works the way it was designed to work. It creates the checks and balances that keep things fair. My jury wasn't full of dumb lugs. We contained:

A Sr. Manager for a mid-sized corporation (foreman)
Litigation Lawyer
Producer (commercial advertisement)
Graphic Artist
Network Administrator
Accountant
Ex-Honduran Gorilla Fighter, now a grandmother in Chicago (very interesting lady)

I can't remember anyone elses careers, but we ran the gamut and were as different as night is day. That's what made it work. How did you determine that the jurors you encountered were vastly uneducated or unintelligent?
jury de-selectionDougSloan
Oct 1, 2002 8:52 AM
I don't know where this idea of "jury of our peers" came to be. See: http://www.crfc.org/americanjury/jury_peers.html

Juries are not picked. All we can do is eliminate potential jurors who may be biased or incompetent.

The way is usually works is that a panel of potential jurors is questioned by the lawyers and/or the judge. First, those who are clearly biased or who might have familiarity with the dispute or parties, as well as those having undue hardship serving, are eliminated. Then, each side can request that certain jurors be dismissed for cause, usually bias, and the lawyers may dispute this. The judge must then rule. Then, after all that is done, each side gets so many "peremptory challenges", or chances to strike those for any reason whatsover, but supposedly not due solely to race, sex, etc.

You usually start with a numbered panel, and work down the list from number one. After eliminating people, the first 12 (or whatever number needed) are the jurors in the case.

Some jurisdictions automatically exclude certain people from jury service, foreign nationals, under age, incompetent, and sometimes even doctors and lawyers. Others can request exemption even prior to appearance, based upon undue hardship, etc. For the most part, though, eventually nearly everyone will be called.

While it appears that the jury pools are overloaded with uneducated, unemployed, or stupid people, keep in mind that society may not have quite the make-up that you might think. What you see may acutally be a close approximation of a random sampling of society, in fact, it might even be skewed more toward the educated end of the spectrum if selections are made from voter registration lists.

Plaintiffs' lawyers, those usually coming to court asking for something, don't necessarily want "stupid" people on the jury, but they may well want easily influenced people, or those who wouldn't mind getting a dig in on the "big guy," like union members, unemployed, etc. Typically, highly educated people, especially the engineer types, require a lot of proof to believe something -- not good for plaintiffs.

We try in the selection process to get inside people's heads and figure out how they are likely to decide the case. That's the ultimate goal. Of course, since it's an adversarial process, each side wants the best chances of winning, and therefore the jurors most likely to be favorable to their position.

Regardless of what you do, there will be some jurors on the panel who are clearly pre-disposed against your client. If so, you either forget them, if the jurisdiction only required a 9 out of 12 member majority to prevail, or really focus on them, thinking that if you can carry them, you win for sure. You try to get people to talk about themselves and their views, hopefully enough to disclose what you want to know, but not so much that a potentially good juror for you gets eliminated by the other side or for cause. It's not at all easy, and sometimes we'll hire psychologists to assist with juror profiling and selection. Sounds goofy, but it's well within the rules.

Doug
Don't get me wrong.Matno
Oct 1, 2002 9:01 AM
I'm not saying that ALL jurors are stupid (you obviously are not). I'm just saying that barring massive, irreconcilable prejudice, juries should just take whomever they get. It is practically criminal for the gov't to disrupt the lives of 20 times as many people as they actually need, just to hand pick "impartial" jurors. (You even said that you "stated [your] feelings that most doctors are crooks.") Basically, the defense lawyers in criminal cases and the Plaintiffs' lawyers in civil actions (particularly here in the Bronx), want to choose a jury of people who will sympathize with their client. In the case of tort awards, that usually means the kind of people who think that someone else is always responsible for their misfortunes. These are the same people who buy lottery tickets with a sincere belief that they will win someday. (I would wager that the vast majority of such tickets are purchased by the people who can least afford them. No wonder lotteries are often referred to as "taxation of the poor"). This attitude is, to a great degree, the product of our current welfare system, which teaches people that they CAN get something for nothing (at least they think it doesn't cost them anything). Maybe my tirade shouldn't be against jury selection, but against the welfare system...

As for the checks and balances, I agree that the system should work, in theory, but in fact, both sides often are looking for a group of jurors who can be swayed one way or the other. (If, in every case there were one party who was completely right and one that was completely wrong, we probably wouldn't need juries very much).

Referring to my experience, Utah is a very unique place, particularly outside of Salt Lake City. Where I worked in the court, in a community of over 200,000, the population consists of about 95% Mormons, most of whom are clean cut and fairly distinct from the remainder of the population I'm not sure why, but since I lived in an almost completely non-Mormon neighborhood, I certainly noticed the difference. For some reason, I think a lot of the people there went out of their way to be different. For example, my next door neighbor (a really nice guy, BTW) was in the local press for quite a while because he ran a strip club, which was eventually shut down. At any rate, just as one example of jury misrepresentation, Mormons don't smoke (there are exceptions, but they are rare). Basically that means that in the community where the court was, 95% of jurors should have been non-smokers. On the contrary, during recesses of the court, approximately 70% of the jurors would smoke! To not include members of the predominant local religion is a huge misrepresentation of the population at large, IMHO. On the other hand, it was a fairly accurate representation of the type of people who hang out in biker bars. (This is just one aspect, obviously, but the economic status of the jurors was also lower than the population at large, and there were other obvious differences as well).

Phew! Did I go off on tangents there?!

Oh, and I think most places are cracking down on exemptions from jury duty. It's even going so far as to not allow student exemptions in some places (which, IMO, is very unfair to the students since it's more than just a loss of wages. But that's another rant). Also, I think you will find that your jury was VERY unique in that it contained a lawyer! In the past, that never happened. I'm sure it is still a rare occurrence. Anyone else ever seen that?
Detailed info about permeating ulcers and holes in stomachsKristin
Sep 26, 2002 6:39 AM
First, its common before a major surgery for a person to be tested for ulcers. This woman was, because her surgery was potentially going to involve a histerectomy. She was ulcer free before the surgery. They do this test, BTW, because the stress of surgery and the fact that the stomach is empty for so long, can cause an existing ulcer to permeate. Her ulcer HAD to have begun after the testing.

Secondly, septic shock was not caused by a hole in the stomach. That wouldn't cause septic shock. The shock was induced by 5 liters of stomach acid that were loose in her abdomin and snacking on her liver, kidneys, lungs and other delicacies.

Third, all of the "expert" testimony cancelled itself out. One gastro doc explains that a small hole poked in the stomach will heal itself. Another argues that it will grow and leak. One pathologist claims that her hole was created from the inside out. Another claims it looks like it was created from the outside in. And without any real medical knowledge, you really don't know who to believe. The whole time I wanted to run to a library and start looking stuff up for myself; but juries aren't allowed to do that.

There may have been one or two who weren't convinced either way, but were leaning towards the doctor being at fault. Six of us wanted to sign over a cool million and be done with it. This including our foreman, who was the last to change his vote. (Great guy by the way, we selected him immediatly and unanymously.) But a group of us (who still thought the doctor had done the damage) were unanimously stuck on point B. The plaintiff had not established that the doctor took unecessary risks, or shortcuts, ect... Myself and another jurist (a litigation lawyer herself) were the primary champions of this conflict. We were honestly stuck on this point and are both compelling speakers. The fact that she is a lawyer I'm sure had influence--plus the fact that we were sitting next to each other. Just how things work out I guess. I believe we all wanted to give her money. We all felt bad for what she went through.

In the long run, I wish that they had sued the hospital. I could have found against the hospital. Easily. The daughters testimony about her mothers pain (more than was normal--but the family didn't know that at the time) was compelling, and the nurses were understaffed. I believed that there were warning signs of a serious problem that were overlooked. It turns out that the lawyer dropped the hospital from the suit just months before. Ugh. I think Doug is right, the lawyer failed. But how can you know if you get a good lawyer or not?
StandardsTurtleherder
Sep 26, 2002 10:59 AM
I always find the point of view of the jury members after the trial to be fascinating. Things that you as the lawyer thought were completely covered somehow get lost. It sounds like a res ipsa loquitur question. That is, the action speaks for itself (i.e. that the instrumentality causing the injury was in the exclusive control of the defendant and that the accident was one that ordinaily does not happen in the absence of negligence.) I am wondering why the plaintiff's attorney or expert did not stress that normally a proper procedure does not involve poking holes in stray organs. Did the issue just not get raised in that way? Maybe the attorney thought that it was a given. But if you and the jury did not hear evidence to support the basis of their claim than you have to rule against them.