An experienced lawyer’s view from the jury box in a medical malpractice case

Mary came to work for me soon after I became a Magistrate Judge in 1987. An undergraduate degree from New York in German, a Master’s degree from Notre Dame in linguistics, and a career running Creighton University’s “English as a Second Language” program for medical students and others, set her far apart from the other applicants. The fact that she was also a senior editor of the Creighton Law Review was important too.

I hired Mary, and, of course, after several years the Chief Judge came calling. Mary “went up stairs” for several years as a career clerk to the Chief. Then, stretching herself, she became a line federal public defender and appellate specialist.  After that, back to yet another Chief Judge as a career law clerk. She is semi-retired now.

Anyway, Mary recently sat as a juror in a med/mal case. I asked her to write about her experience.  She graciously agreed, and what follows is her fascinating account:

Our jury panel proceeded for voir dire to Nebraska State District Court Judge Russell Bowie’s courtroom. This was delightful as I was acquainted with Judge Bowie from his lawyering days. I was questioned thoroughly. As a lawyer I probably made the cut because since 1994 little of my work had involved civil law.

The jury included many women and few minorities. My favorite juror friend for the week had a distinctive white stripe in her dark hair. When not in court we were either in the jury room or allowed to roam. I was struck by the frugality of the jury facilities compared to the plush surroundings in federal court. Our sole amenity was a water cooler.

The case was sad. Plaintiffs, husband and wife, sued their Ob/Gyn physician claiming that he did not advise them of potential complications with the woman’s pregnancy due to her septate uterus or of surgical procedures to correct the problem prior to pregnancy. The child born to them was then about ten years old, in a wheelchair, and suffering from physical and mental abnormalities. He was in court briefly. Clearly, in this case there would not be any “winners.”

It was fascinating to watch the attorneys as a juror. I found the plaintiffs’ attorney to be a nice guy but stiff, nervous, and bland. The defense attorney is a lawyer by day and actor by night. His delivery was mesmerizing.

Only one witness still stands out in my mind—the plaintiffs’ so-called expert witness, an Ob/Gyn physician from Glenwood, Iowa, 25 miles from Omaha. The man was creepy. He testified that he had lost privileges at the Glenwood, Iowa hospital for some unstated reason, and if a Glenwood patient had to deliver a baby he would meet them at the Creighton University hospital, the only hospital where he enjoyed privileges.

On Thursday afternoon the parties rested and closing arguments were held. We began deliberating. We voted for a jury foreperson, and two others were enthusiastic about assuming the role. I was not, as I wanted to blend in with the group.

We began by taking a vote. We were 50/50 when it was time to go for the evening. On Friday morning one juror said he had been physically ill the night before thinking about the responsibility we held. We discussed the sadness of the case and the doctor’s reputation being at stake. Our early Friday vote showed no change. So we talked about the evidence and the witnesses. We discussed the creepy doctor. At one point some jurors wanted to tell the Judge we were deadlocked, but we decided that in doing so we would not be doing our job. Periodically we took votes, and gradually the scale began to tip in the doctor’s favor.

A turning point came when we saw in a medical record that the wife had previously been pregnant. This was significant because we thought that indicated that her septate uterus and its complications were no surprise. This earlier pregnancy was never referred to in court. We wondered why and felt that this important matter had been deliberately hidden from us. Did the husband not know of the prior pregnancy? Was there a protective order that prohibited it from being raised? At any rate, once we found this one tidbit buried in a stack of medical records the vote soon became unanimous in favor of the doctor.

So often a verdict seems to come at the end of the day, end of the week, or right before lunch. In our case the Judge’s bailiff had stuck her head in late on Friday morning and asked if we anticipated reaching a verdict before or after lunch, because if we knew it would be after the noon hour we would be provided a pizza lunch. We weren’t sure at that point when we would be done, so in came the pizza. They must have experience with this as a method to encourage consensus, as over our pizza we made our final decision—unanimous in favor of the doctor.

We jurors talked about how surprisingly exhausting it was to do our job. It was hard to sit all day, all week, and go home tired just from paying attention and endless sitting. Many used the lunch hour to walk or go to lunch. I walked a block to my office and worked. I felt like every other part of my life had to be on hold.

After the trial I received phone calls from both lawyers asking about their performance. I gushed to the defense attorney about his stellar performance, skillful questioning, and other attributes. He very sincerely thanked me on behalf of his client. I saw him about a year later, and he did the same when I told him I had been on that jury.

My conversation with the plaintiffs’ attorney was difficult though pleasant. He started by telling me to be completely honest. So I was. I told him his expert was creepy and inexperienced in septate uteruses, and that one should not put on a creepy Ob/Gyn in front of a largely female jury. When I was done he asked me, “So, was there anything about my performance that you liked?” I came up with something. He then confessed that he had never had a medical malpractice case and that he was a bankruptcy lawyer who had taken the case as a favor to a friend who was related to the plaintiffs.

I never saw my fellow jurors again, and I would not recognize any of them on the street except for the woman with the white stripe in her hair only if she still has the stripe. Our lives were intertwined for one intense week, we did our job, and then life outside the jury room went on separately for all of us. We all took it seriously, and there were no whiners or complainers. We were all undoubtedly richer for the experience that we all appreciated.

Thank you, Mary, for your insights. I miss you!

RGK

A long time ago I had the privilege of presiding over the naturalization ceremony where Mary's little boy in red suspenders, a bow tie and waving an American flag became a citizen. He is all grown up now. The river of life  . . .

A long time ago I had the privilege of presiding over the naturalization ceremony where Mary’s little boy in red suspenders, a bow tie and waving an American flag became a citizen. He is all grown up now. The river of life . . .

 

12 responses

  1. Mary,

    I am curious how you felt about receiving phone calls from the attorneys after the trial. Do you think that it could, especially for jurors less comfortable with law than yourself, be unsettling? I suppose there’s nothing illegal about it (assuming they got your number from somewhere public like the phone book). But it still seems like it could create an awkward situation.

  2. Peter,

    In my court, I allow lawyers to contact jurors after the case is over. Since the lawyers have the jury data sheets, it is not hard to find a phone number. However, I tell jurors that they don’t have to speak to the lawyers, that they lawyers really want a critique of their work and the jurors could do the lawyers a favor by providing a critique and, finally, I stress that the jurors should not talk about what other jurors said during deliberations because I think those discussions are private.

    All the best.

    RGK

  3. Mary’s experience ties in well with my blurry memories of being on a couple Indiana circuit juries many years ago. Probably in the 70s although I wouldn’t even swear to that. Our cases were criminal felonies, although barely rising to the level, theft in one case and some form of assault in the other.

    I found the same sense of people thrown together for a few day and doing there absolute best to do a good job. I remember thinking that the jury system worked quite well, and that was my main takeaway.

    I seem to remember that after the case, the judge and both attorneys joined us in the jury room and answered questions and just generally talked to us, both about how we decided, and how their ‘performances’ affected our decisions. As I recall, it was quite interesting, at least for me, a non-lawyer.

  4. Peter H,

    I don’t recall whether the judge in this case gave instructions regarding contact with jurors, so I don’t remember whether the contact would have been expected by a non-attorney juror in this case. In any event, I was not surprised by the calls and I enjoyed speaking with both lawyers. It is hard for me to objectively guess how a non-attorney juror would feel, so I regret that I am unable to answer your question. Thank you for your insights.

  5. Thanks for replying. I don’t do trial work, so I suppose it’s something that’s more common than I’d thought. I imagine something like the advance warning Judge Kopf provides helps a lot to put people at ease, but of course not every judge will do that every time.

  6. Thanks for replying. As I said below, this seems more common than I’d thought, and giving jurors a heads up about it, and that they’re free to decline, seems like good practice.

  7. This summary absolutely terrifies me. For two-and-a-half decades or so, I have handled medical negligence cases, first for the defense, now for plaintiffs. Few things are worse than jurors finding a reference in the records that, in truth, means nothing, but seems to them to solve the mystery. The cure for that–explain everything, no matter how irrelevant–lengthens the trial and risks losing the jury in minutiae, a cure that can be as bad as the disease.

    Obviously neither you, nor Mary, have an obligation to continue writing about this case, but curiosity is killing me. Did Mary ask either lawyer about the prior pregnancy? Was it something that was the subject of a motion in limine, but got to the jury through poorly redacted records? Or was it a typo in the record, an early first trimester miscarriage that occurred before the uterine anomaly was discovered and explained to them, or some other innocent explanation that neither side tried to hide, but neither tried to explain because all of the experts agreed it didn’t matter? And given the importance the jurors placed on this bit of evidence, why did they hold it against the plaintiffs (presumably lay people without medical expertise) rather than the medical professional who was paid to advise them?

    I love the 7th amendment, and our state’s constitutional requirement that the right to trial by jury remain inviolate, so the limits that have been placed on jury trials by our legislature and our courts sadden me. But despite the fact that I believe that trial by jury beats the alternative, hearing a juror describe how the process actually worked usually depresses me.

  8. Roger,

    I know nothing of the case, but Mary can respond to your comment if she would like.

    As an aside, I have a good friend who is a big, big, big lawyer in New York. Cravath, then a partner at a shop you would easily recognize for doing top flight trial work.

    She once told me that jury trials are unconstitutional. Wryly, she observed that no rational person would pick 12 people off the streets at random to decide an important matter in another person’s life–hence the denial of due process. She was kidding, but . . . .

    All the best.

    RGK

  9. Roger,

    Unfortunately my memory is failing me with respect to some details. When writing my piece the other day I wondered whether anyone would ask the question you posed. I can only tell you now that it came down to a credibility issue and/or was otherwise important to us in light of the testimony. It was not merely that the woman had been pregnant before and we held that against the plaintiffs. I believe I did ask the defense attorney why that was not raised, and assuming that I did ask I can’t remember the answer to save my life. I never thought I would be telling this story over four years later. I don’t know if this helps rest your mind at all, but the difference between the parties’ experts was overwhelming and the doctor was a very convincing witness. Overall my feeling, shared by some if not all of the other jurors by the end of the deliberations, was that the defense had a much stronger case.

    It might seem odd that as a lawyer I don’t remember such details. But in remembering the experience, I have mostly thought about the way the case was presented by both parties, the importance of the strength of expert witnesses, whether it was a good case to even try (were plaintiffs unable to find an experienced lawyer in med mal who would take the case?), and of course the whole jury experience.

    I might not have satisfied your curiosity, but I did want to answer you to the best of my ability. Thank you for your interest and thoughts.

  10. Thanks for the response. The question wasn’t intended to criticize you or your fellow jurors’ service–I’m just interested in how jurors reach their decisions, especially when they decide a case on an issue that none of the lawyers thought was important enough to address.

    I’m also interested in the effect the smoothness of presentation has on jurors. I have no doubt that the defense expert, the defendant, and the defense lawyer all were more polished than the plaintiffs in your case. Now that I do plaintiff’s work, I rarely have an opponent with a weak lawyer–health systems and insurers don’t keep those folks around. Back in my defense days, however, it was often the case (all false modesty aside) that I was a better lawyer than the plaintiff’s lawyer, and sometimes I was a much better lawyer. Although we had (have) outstanding plaintiff’s lawyers in my jurisdiction, we also had a number of lawyers who dabbled in malpractice, so the quality of plaintiff’s counsel varied wildly from case to case.

    Some of the wins I was most proud of in my defense days embarrass me now, because I know that we were wrong on the medicine but the case got tried to a defense verdict because the plaintiffs were represented by the equivalent of the bankruptcy lawyer you had in your case. It’s tough for anyone to get good experts to testify against a doctor, but for people who don’t regularly practice in the field it’s almost impossible to get an expert who will match up with the defense experts. I thought at the time that the fact that I was winning cases I should lose meant I was a great trial lawyer. I’ve since learned that it only meant that I was representing doctors. An interesting study in the Michigan Law Review found that physicians win nearly all of the cases that independent expert reviewers concluded they should win, but also win roughly half of the cases the reviewers believed they should lose. Philip G. Peters Jr., Doctors & Juries, 105 Mich. L. Rev. 1453 (2007). My anecdotal experience is pretty similar.

    My apologies to you and the judge for this much-too-long response. All I started out to say was thanks for trying to answer my questions.

  11. Roger,

    Thank you for your latest comment. No worries – I understand your earlier comments and take no offense. I can understand the difficulty in finding a good expert to testify against a doctor, especially for a person not skilled in that area of the law. The conclusion of the Michigan Law Review Study is quite interesting. I appreciate that you now do plaintiffs’ work. You are most welcome, and I just wish I remembered more of the details.

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