Last week we served on a jury in a medical malpractice verdict. To put it mildly, we were surprised that we made it through the peremptory gauntlet. The verdict? It was an enlightening and edifying experience.
The fifth time was the charm. On four prior occasions, we had marched to the county courthouse. On four prior occasions, we were thanked and excused. That is hardly a surprise. As a former prosecutor and current defender of Fortune 100 companies, we offer lots of litigants a lot to dislike. But this time was different.
Chester County, Pennsylvania is almost a hundred years older than the country. It has a historic courthouse. That courthouse is splendid. It is also cramped. The jury assembly room was formerly located in its basement. It was not an entirely wonderful place to await one’s service. But the county put up a gigantic Justice Center ten years ago. It is a gorgeous facility. The hallways are wide and well lit. The restrooms are large and clean. The courtrooms are big, modern, and majestic without being intimidating. Even better are the people who run things in the courthouse. Right from the start, as you pass through the metal detector and get wanded by Sheriff’s Deputies, everyone is polite and professional. A fellow juror commented at the end of the case how all of the courthouse workers were quick to smile. In particular, the folks who run the jury assembly room were relentlessly pleasant. Jury service can seem like a bother, but it wasn’t such a big bother in beautiful, wise, fair-minded Chester County.
Approximately a hundred of us gathered in the assembly room. By 9 am we were told that only one panel was required that day. Fifty-six of us, including your correspondent, were chosen randomly, handed numbered 10×14 cards, and herded upstairs to a courtroom. We weren’t worried. It would be interesting to see more of the process before we were inevitably shown the exit. We were juror #14. That meant that we were seated in the jury box, which had comfy chairs. Jurors 15-56 squeezed themselves into pews. Voir dire began.
We had completed a simple, one page questionnaire. We disclosed our residence, marital status, and employment. That was pretty much it. We saw none of the attitudinal questions that litter the long-form questionnaires typical in mass tort cases. The Judge – a calm, dignified man who commanded respect and affection from us throughout the case – briefly described the nature of the case. A widow was bringing a wrongful death action because her husband died shortly after a medical operation at Paoli Hospital. She alleged that the doctor might have performed the surgery well enough, but he did not pay attention to signs of an internal hemorrhage, thus permitting her husband to bleed to death two days after the surgery. The parties and lawyers were introduced. Then the plaintiff lawyer asked a series of general questions about experience with medical and legal issues. Jurors raised their numbered cards to answer in the affirmative, their numbers were noted, and then there were individual follow-ups at sidebar.
The sidebars took a while. Apparently, a big percentage of people in Chester County have had run-ins with the medical profession. We were one of only two lawyers in the group. The other did insurance and malpractice law, so she was a sure goner. We thought we were, too. When we were called up to sidebar, we initiated the conversation with a jaunty “Good morning your Honor, and good morning counsel.” It just came out naturally. The defense lawyer said, “Oh that’s right, you’re a lawyer.” When we described where we worked, the Judge smirked that he had never heard of our ‘little firm.’ The plaintiff lawyer asked if we mostly worked on MDLs. Why, yes, that’s exactly right. The Judge asked if we could be fair. Yes, of course. And then we were sent back to seat #14.
The sidebar sessions were halted after juror #30. The court had apparently calculated that it had enough jurors, taking into account whatever challenges for cause had been sustained and the number of peremptory challenges each side had. Net of those, there would be 14 jurors (12 + 2 alternates). Goodbye jurors 31-56. Then the lawyers passed a piece of paper back and forth, each exchange interrupted by much pondering and furrowed brows. As far as we could tell, there were no jury consultants involved. These lawyers were relying on experience and instinct in choosing which jurors to bounce. Not for a moment did we think the plaintiff would allow us to remain on the jury. Eventually, the piece of paper was handed to the court clerk. He and the Judge scrutinized it and made some notations. They were figuring out who was on the jury. Then the clerk called out numbers, instructing those jurors to gather their effects and go home. “Juror number 2, you may go.” “Juror number 4, you may go.” Etc. “Juror, number 11 you may go.” That made sense – Juror 11 was the other lawyer. Then we heard it. “Juror number 14 -“ we bent down to collect our brief-bag. “-please move to seat 2.” Wait. What?
Stunned, we plopped down in our new seat. Soon, others filled the empty seats in the box. A member of the Court’s tip staff (that is what court bailiffs are called in Pennsylvania – the plural is “tip-staves”) administered the oath to us. Then we went to the jury room and awkwardly introduced ourselves to each other. The jury was split evenly between men and women. Two of the women were nurses, and one was studying to prepare medical transcriptions. The jurors seemed smart, nice, and conscientious. We got along. We took turns bringing pastries in each morning.
Did we mention that Chester County has a reputation as a horrible place for plaintiffs in civil lawsuits?
Each side presented an opening statement. Each lasted 20-25 minutes. Each employed zero graphics (we do not know whether that was by choice or by order of the Court). Despite the lack of graphics (or maybe because of it?) the opening statements were crystal clear and easy to follow. The decedent’s hemoglobin level was 14.5 before the operation, which is about average. The surgery was uneventful. There were no complications. Only about 75 cc of blood were lost, making this a relatively ‘dry’ operation. There was no issue about whether the surgery was performed negligently. Instead, the malpractice issue pertained to the post-op standard of care.
The decedent’s hemoglobin fell to 11.6 after the surgery, which is not unexpected. Then it fell to 10 the next day, and 8.8 the morning of post-op day 2. The decedent vomited a couple of times and fainted once, but his vital signs seemed stable. There were some blips on the cardio strip, though nothing terribly alarming. A significant point of contention was whether observations of increasing abdominal firmness should have prompted investigation for internal bleeding. The defendant doctor interpreted the distended abdomen, along with the absence of a bowel movement, to manifest an ileus – a problem with the bowels, but not anything to do with a possible bleed. The defendant doctor visited the decedent mid-day of post-op day 2, recommended ambulation, and headed back to his office. About a half an hour after that, the plaintiff took a walk up and down the hallway, per instructions. He returned to his room, collapsed, coded and died.
The plaintiff called the defendant doctor as the first witness. It was an interesting beginning to the case. In a way, it is like our mass tort cases where the plaintiff lawyer begins by torturing a company witness with reptile questions and insinuations of document spoliation. In this case, the doctor held his own well, emphasizing the stable vital signs and the unforeseeability of the sudden collapse. He mostly agreed with the plaintiff lawyer’s questions. There was no unseemly fencing. But there was an interesting admission: the doctor testified that during his last visit to the decedent, he at least considered the possibility of bleeding. But the doctor said he didn’t observe any reason to follow up on that thought. Perhaps later in the day, depending on what he learned, he might enter orders to address that possibility.
The next witness was the county pathologist. She performed the autopsy. Her testimony came in via video. She was credible and wasn’t being paid by anyone. She found approximately 900cc of blood near the surgery site. She also found that several of the decedent’s arteries were moderately blocked and that the left side of his heart was mildly enlarged, probably from years of hypertension. Her conclusion was that the blood loss, in conjunction with pre-existing heart disease, had caused the sudden death.
The plaintiff presented two more video depositions. One was of a causation witness, who agreed that blood loss contributed to the death, and the other was a standard-of-care witness, who opined that as soon as the hemoglobin continued to fall the day after the surgery there should have been intervention, such as a CT scan or transfusion. The standard of care witness hit the required points, but he displayed some shortcomings. He came from clear across the country and possessed no experience with the type of robotic surgery at issue in the trial. Moreover, his initial report attributed the death to a heart attack. One problem with that – there was no heart attack. Also, this expert suggested that the decedent’s vomit should have been tested for blood because it was brown. Two problems with that – the pathologist found no sign of blood loss in the upper GI system, and the plaintiff expert weirdly denied that vomit often is brown. The defense lawyer enjoyed that last answer. He paused and turned to look at the jurors, holding the moment nicely.
We were also treated to testimony from an expert economist, who laid out uncontroversial earnings and valuation numbers. One set of numbers assumed retirement at 62 (the decedent was 60 years old when he died), and the other assumed retirement at 66. The bottom-line difference between the two assumptions was over a million dollars. There was some dispute as to which scenario applied, because the decedent’s brother reported a conversation in which the decedent mentioned the possibility of retiring early, but the decedent’s widow (who was also executrix of the state) was adamant that she and the decedent had planned for only her to retire early, with the decedent working at least to age 66.
The widow was the last plaintiff witness, and she presented very well. She maintained complete dignity through her grief, and painted a picture of her late husband as an impressive, intelligent, fundamentally good man. He had spent decades in the military, and then carved out a strong career as a Human Resources executive in corporate America. The jury liked the plaintiff. We felt terrible about what had happened to her and her husband.
The defense case was short and to the point. A local critical care expert testified via video that an already diseased heart, not the bleeding, caused the death. The plaintiff’s cross-examination scored some points. We learned that this expert had done a fair amount of testifying for the defense lawyer. It also became clear that this expert was not much of an expert in the relevant fields. So much for that.
But then another local expert doctor came into the courtroom with formidable credentials. He testified forcefully that there was no reason to intervene until the hemoglobin level dropped below certain levels, 8.0 for someone with heart disease, and 7.0 otherwise. Dropping hemoglobin levels could be consistent with hemodilution from administration of IV’s. The absence of disruptions in vital signs was significant. The various accounts of the decedent’s abdomen and its softness, tenderness, or firmness were not so significant. Further, transfusions carry their own risks. That is why doctors must follow well-established standards before intervening. On cross-examination, we learned that this expert’s price tag was also impressive. He earned $6000 from reviewing records and another $5000 for the in-court testimony. More than once in the case, the plaintiff lawyer referred to the $11,000 man. Sure. Sometimes you get what you pay for.
The defense case concluded with a pair of fact witnesses. An attending nurse seemed a bit nervous and genuinely shaken up by the sudden death. She also seemed surprised by it. Aside from the patient’s vomiting, the vital signs were not troubling. Finally, the defendant doctor retook the stand. First logically, and then passionately, he laid out his thinking as to why his patient did not appear to any reasonable eyes to be in danger. He elaborated on the hemodilution theory. He then held up well under a spirited cross-examination.
The lawyers conducting the direct and cross examinations mostly sat as they did so. Very few graphics were employed. It was all low-key. We could not resist in our own mind the temptation to grade the performances of the lawyers. We thought they were quite good. They all seemed competent and relaxed. They probably found themselves in court far more often than big-shot, national mass tort lawyers do. There were no histrionics. Everybody seemed to get along. If we had any critique, it was that the editing of the video depositions was a bit clumsy. Such videos are hard enough to endure, but when we had to sit through useless introductions by the videographer, you could hear the restless seat-shifting in the jury box. But that’s a minor quibble. Both cases came in smoothly.
The closing arguments by the lawyers were as short as the opening statements, and mostly made points that were by now well inscribed in the juror’s heads. The lawyers agreed that the three questions the jury had to answer were: 1. Did the doctor fall below the standard of care? That is, was he negligent? If we answered that question No, we were done. 2. Was the negligence the cause of death? 3. What were the appropriate damages?
The plaintiff lawyer addressed all three questions. The doctor had a duty to take care of his patient and prevent harm. The declining hemoglobin levels and firm abdomen should have prompted some form of intervention. The independent county coroner had determined that the bleeding contributed to the death, and that simply made sense. Finally, the plaintiff’s expert accountant was essentially unchallenged. That testimony established the economic damages. Pain and suffering was up to us.
The defense lawyer did not address damages at all. Rather, he devoted the bulk of his argument to showing how attentive the doctor was, how stable the patient’s vital signs were, how hemodilution could well account for the hemoglobin declines, and how the defense expert on standard of care had articulated the relevant standards that precluded any premature intervention. On causation, the defense lawyer argued that the county coroner did not have access to all the relevant information, and that the defense causation expert offered a more complete picture that supported potential alternate causation.
After standard jury instructions (that even this lawyer has to admit were less than pellucid on wrongful death vs. survival actions), the case was given to us. The tip-staff personnel escorted us down the hall.
The Judge ordered that juror #1 would be the foreperson. Lucky choice. Our foreperson was a quiet, calm fellow with no obvious agenda. He suggested that we take an initial vote. 6-6 on question 1 – negligence. Gasps around the room. One or two jurors muttered that there was no way they could be stuck in the courthouse all week. It was around 11:30 am, so we ordered our first free lunch during our jury service and started sharing our perspectives. It was immediately clear that the two nurses and the medical transcription student were locked into pro-defense positions. They led the charge for their side and banged home that the vital signs were stable and the hemoglobin levels never descended below the magical number, whether that was 8.0 or 7.0. The plaintiffy-leaners wished that the doctor had done something more to look into possible bleeding. Everyone seemed to agree with the independent pathologist that bleeding played a causal role. The difference was the extent to which this hindsight colored the assessment of standard of care.
We argued the salient points in a civil fashion for a couple of hours. There weren’t many detours. Several jurors commented that there was no evidence that the doctor intentionally did a poor job. He certainly did not mean to visit any harm on his patient. All well and good, but that plainly was not the issue. The nurses were particularly active in the deliberations. After we asked for certain medical records to be sent to us (interestingly, the Court refused to send us any testimony we requested), the nurses took the lead in translating them and telling us how they fit into the patient’s care. As you might guess, the nurses were especially attentive to the nurse’s testimony. The defense lawyer had done something clever at the end of his direct examination of the nurse. He asked her what her opinion was regarding standard of care. The plaintiff lawyer properly objected. The nurse, after all, was not being tendered as an expert. The Judge sustained the objection. But the nurses on the jury construed all this to mean that the nurse thought the defendant doctor had not botched anything. Other jurors pointed out that this was improper speculation, and the point never arose again. But there it was.
At 3:30 pm we re-voted. Still 6-6. We went around the table and concluded we were deadlocked. We sent a note to the Judge. While waiting for a response, more than one juror wished aloud that the parties would settle. It was a hard case and we hated the possibility of getting things wrong. Then we were sent to the courtroom. The Judge smiled at us, told us to get a good night’s sleep, change our clothes, and come back the next morning. In truth, this was what we expected. In a sense, we were merely making a record, so that if we reported a deadlock the next day, it would be more likely we would be dismissed. Yes, sometimes jurors think strategically about these things.
When we arrived the next morning, we learned that one person had changed his vote from plaintiff to defense. It was now 7-5. Then the debate continued. We asked for more medical records, which we got. We asked for more testimony, which we did not get. We were told that it was “unavailable.” Huh? Whatever. We asked for an easel, which the tip-staff brought us with a rueful grin. One of the nurses had nice, legible handwriting, so she became the easel artist. We created a chronology that was better and more useful than anything we saw in the case. It clarified our thinking. But it did not change any minds. At this point, one of the defense jurors suggested that we go around the table and have each juror try to state the strongest positions favoring the other side. What a good idea! But one of the nurses and the medical transcription student said that they could not engage in that exercise, as they saw no sense in the plaintiff position. Ouch. Still ,we never became Twelve Angry Men (and Women).
Several times the medical transcription student bemoaned the impossibility of our task. How could we all, as non-doctors, evaluate the standard of care of a doctor? Some of us grew frustrated with this dithering. Applying her reasoning, maybe there shouldn’t be med-mal cases at all. It seemed a useless, maybe even nihilistic, point. And yet, it led to the breakthrough in deliberations. We realized that our discussions on standard of care had involved grabbing hold of various bits of evidence and then asking how they fed into the analysis. That is, our analysis. But, in truth, the way for non-expert, non-doctor jurors to answer the standard of care question was to look to the expert testimony on that specific point. There were two expert witnesses, one from each side, who had directly addressed standard of care. We then made a chart comparing those two experts. The plaintiff expert said that as soon as the hemoglobin dropped to 10, the treating doctor needed to act. The defense expert said that as long as the vital signs were stable and the hemoglobin stayed above 8.0 (relying upon a JAMA article), watchful waiting was all that was necessary. We agreed that the plaintiff expert had some credibility problems, in terms of creds, experience, demeanor, and answering some questions in a way that made little sense, whereas the defense expert was consistently impressive, consistently forthright, and consistently, well, consistent. A couple of the defense jurors looked at each other and grumbled that sometimes one has to render a decision one might not like. Three flipped. Now it was 10-2 for the defense. We had a verdict. The foreperson knocked on the door for the tip-staff. A few minutes later, we walked back into the jury box. Our faces were blank. The foreperson read the verdict. There was no visible reaction from the parties. There was no request to poll the jury. The Judge thanked us for our service. He said that someday we might wonder whether we had done the right thing, but we should be assured that we had done the right thing, because we had gone about the process the right way.
And that was it. The entire case began with jury selection on a Thursday and ended with a verdict just after lunch the following Wednesday. Some jurors exclaimed at how long the whole thing took. Hmmm. They should try being a juror on one of our MDL trials.
Let’s be honest: as a litigator, we had always thought it would be useful to serve on a jury. It would be a window into a process that had always seemed like a scary black box. But we never thought we had a chance. We continue to be amazed that a plaintiff lawyer would fail to exercise a peremptory challenge against us. But here’s the thing: that plaintiff lawyer was not wrong. Without getting into the specifics, let’s just say that this particular defense-hack-turned juror gave the plaintiff side a very fair hearing. The jurors who really clobbered the plaintiff’s case were the three who had medical experience. So let that be the first lesson. Medical knowledge on the jury, whether real or pretended, can exercise an extraordinary influence.
Other lessons might not exactly arrive as newsflashes for most of our readers:
- The quality of experts can be outcome-determinative. The moneys paid had no impact on us, but the credentials, consistency, confidence, and reliance on authority all did. It also helped for the expert to be local.
- Sympathy played no role. Maybe we were a hardhearted bunch, but our genuine respect for the plaintiff and her decedent played no role in rendering a verdict. We all expressed sorrow afterwards, but that was it.
- Use graphics judiciously. Clear examinations and clear explanations can go a long way. Two or three good graphics on important issues (especially timelines) can register more impact than 30 numbing PowerPoint slides.
- There was very little snarkiness or overreaching in the case, which is all to the good, because the jury did not like even a hint of either.
- The most important lesson is that jurors really try to do the right thing. Permit us a moment of civic boosterism. We already were coming around to the notion that Chester County, with its covered bridges, sad Wyeth landscapes, trout-filled streams, glorious Revolutionary War history, proximity to Philly, preeminent public schools, and low crime, was just about the perfect place to live. It also might be the perfect place to try a case.