Last week, a panel of the Court of Appeals of Georgia was asked by the losing medical malpractice defendant to overturn a medical malpractice jury’s verdict in favor of the plaintiff in the amount of $4.4 million that was handed down in May 2014.
One of the issues raised by the defendant hospital on appeal was whether it was error for the trial judge to permit the jurors to touch the plaintiff’s hands to determine for themselves if there was a difference in temperature between his hands (a defense medical expert had held the plaintiff’s hands during his testimony in front of the jury and then testified that the temperature of his hands was “roughly the same,” after which a medical expert on behalf of the plaintiff held the plaintiff’s hands in front of the jury and testified that the difference in temperature between the plaintiff’s hands was “pretty easy to detect” – at the plaintiff’s lawyer’s request and over the objection of the defense, the trial judge subsequently allowed the jury to make up its own mind on the issue of whether there was a temperature difference, by allowing each juror to touch the plaintiff’s hands (less than one-half of the jurors elected to do so)).
Why Was the Plaintiff’s Hand Temperature Important?
The plaintiff had alleged that as a result of medical negligence during a cardiac catheterization procedure at the defendant hospital, a small amount of radioactive tracer solution leaked into his arm due to IV infiltration, causing him to suffer complex regional pain syndrome that led to his need to have a stimulator implanted in his spine to help control his pain. One symptom of complex regional pain syndrome is a temperature differential between the effected and non-effected parts of the body.
The defense denied that there was medical negligence and further denied that the plaintiff had complex regional pain syndrome.
At the conclusion of the Georgia medical malpractice trial, the jury returned its verdict in favor of the plaintiff against the defendant hospital (the jury found in favor of a defendant nurse) in the amount of $4,470,903 ($183,244 for past medical expenses, $790,000 for future medical expenses, $51,702 for past lost wages, $1,195,957 for future lost wages, $1 million for past pain and suffering, $500,000 for future pain and suffering, and $750,000 for the plaintiff’s wife’s loss of consortium claim).
The defendant hospital argues in its appeal that because some, but not all, jurors touched the plaintiff’s hands, those who did may have a disproportionate influence over the other jurors during jury deliberations, effectively making those jurors who touched the plaintiff’s hands witnesses in the case, and that the jurors’ sense of temperature differential was subjective. The defense also argues in its appeal that the plaintiff’s attorney attempted to create an improper intimacy between the plaintiff and the jurors by allowing the jurors to touch the plaintiff’s hands.
The plaintiff’s lawyer countered that Georgia’s case law permits jurors to use their five senses, providing the example of jurors using their sense of sight to observe the plaintiff’s skin tones (a change in skin tone is one of the symptoms of chronic regional pain syndrome), and that the jurors had the right to determine the credibility of the parties’ experts’ contradictory testimony with regard to whether there was a temperature differential between the plaintiff’s hands. The plaintiff responded to the defense argument that not all jurors touched the plaintiff’s hands by noting that jurors often approach their jury responsibilities differently – for example, some jurors take exhaustive written notes during trial while others do not take any notes.
We will have to wait for the Court of Appeals of Georgia’s decision in this case to see if the jury’s verdict is upheld, or overturned and the case returned to the trial court for re-trial.
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