Defense Medical Malpractice Lawyer Grasps at Straws

Four jurors who helped decide one of Tennessee’s largest medical malpractice lawsuits are claiming they felt coerced into finding the gastroenterologist at fault for Plaintiff’s injuries.

This sad case involved a relatively simple procedure – a colonoscopy and endoscopy – on a 33 year-old woman. A day later, complications from the procedures sent her into cardiac arrest leading to brain damage.

In April, a Hamilton County Circuit Court jury found the doctor 51% responsible for the plaintiff’s brain injuries. The jury awarded $6.12 million in damages.

Four of the jurors claim they felt pressure by the judge to find malpractice to spare the time and expense of a retrial. The jury instruction at issue:

“If a substantial majority of your number are in favor of finding a verdict, those of you who disagree should reconsider whether or not your doubt is a reasonable one, since it appears to make no effective impression upon the minds of the others.”

In my opinion, defendant’s malpractice lawyer is desperately trying to recover from a malpractice verdict in a case I’d bet dollar to donuts should have been settled. In Maryland, it is standard to give an Allen charge to a deadlocked jury:

The verdict must be the considered judgment of each of you. In order to reach a verdict, all of you must agree. Your verdict must be unanimous. You must consult with one another and deliberate with a view to reaching an agreement, if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. During deliberations, do not hesitate to reexamine your own views. You should change your opinion if convinced you are wrong, but do not surrender your honest belief as to the weight or effect of the evidence only because of the opinion of your fellow jurors or for the mere purpose of reaching a verdict.

The Allen charge comes from Allen v. United States, a U.S. Supreme Court case that is over 100 years old. So I suspect the verdict will hold up. Maryland judges give modified versions of the Allen charge all of the time. The exact language is not necessary.

What is compelling is that four jurors say they would have decided differently. Of course, this is after spending a lot of time in the conference room of defendant’s medical malpractice lawyer. Do you think there were some “ex parte” – for lack of a better phrase – comments to those jurors about the case? Are we surprised that jurors would have buyer’s remorse after a verdict like this? It is hard not to have a little cognitive dissonance after a tough case. So while these jurors flipping has some facial appeal of injustice, it really is not any indicia of whether there was a fair and impartial verdict.