The Court of Appeal of the State of California First Appellate District Division Three (“California Appellate Court”) stated in its unpublished opinion filed on August 12, 2021, “In evaluating whether the nurse juror’s statement constituted misconduct, the trial court appropriately considered the juror’s specific statement itself and disregarded any assertion as to the juror’s intent in making the statement that was inadmissible. (Evid. Code, §1150.4) Despite Kamath’s arguments to the contrary, the nurse juror’s statement regarding the documentation of patient information in the emergency room record does not indicate that it was her attempt “to make sense of the discrepant records during deliberations.” Rather, the record demonstrates the nurse juror’s statement actually filled an evidentiary gap as neither party produced as trial witnesses the nurses who had recorded the comments in the emergency room medical record. ”
The Underlying Facts
In January 2016, Nandan V. Kamath, M.D. (“Kamath”) removed a lipoma (fatty tumor) from the upper right arm of the plaintiff. Kamath made an incision in the posterior (rear) of the plaintiff’s upper arm, removed the lipoma, sutured the incision, and bandaged the arm. The plaintiff was told to return in 17 days for his first post-surgery appointment. The plaintiff testified that, since he did not receive either verbal or written wound care instructions after the procedure, he kept the incision covered with the post-incision bandage.
Nine days later, the plaintiff was taken to a medical center by ambulance, where he was diagnosed with a necrotizing soft tissue infection in his right arm and taken to surgery to remove the dead tissue. Ultimately, his legs and arms had to be amputated to treat the overwhelming infection.
The plaintiff alleged that Kamath was negligent for failing to provide him with proper wound care instructions, as a result he had not removed the post-incision bandage from his arm, causing bacterial growth in the wound, which was a substantial factor in causing the infection that resulted in the loss of his limbs. The plaintiff’s expert opined that he would not have gotten an infection had he been given proper wound care instructions and followed those instructions. Kamath contended that the plaintiff received both written and verbal wound care instructions, but that wound care was irrelevant as the growth of bacteria originated in the respiratory system (not the wound) and spread throughout the body through the bloodstream.
A key evidentiary issue during the trial related to whether wound care instructions had been given to the plaintiff and whether the plaintiff was wearing a bandage over his sutured incision when he was taken to the medical center by ambulance. Each side relied, in pertinent part, on medical center records to support their position.
After the California medical malpractice jurty returned its defense verdict, the plaintiff filed his motion for new trial supported by the affidavit of a juror that stated that starting early in the jury’s deliberations and continuing throughout the process, another juror, who was a nurse, “brought in her own personal experience as an RN and . . . expressed her nursing opinions to the other jurors on various issues.” As an example, the nurse juror “talked about her experience as a nurse when a patient is brought into the emergency room by ambulance and how it is a chaotic situation with a lot of eyes on the patient. In this regard she . . . stated that had a bandage been on [the plaintiff’s] arm at the time he was brought into the ER then that (the presence of a bandage) would have been documented at the time of his admission to the Emergency Department.”
The California Appellate Court stated that in evaluating whether the nurse juror’s statement constituted misconduct, the trial court appropriately considered the juror’s specific statement itself and disregarded any assertion as to the juror’s intent in making the statement that was inadmissible.
The California Appellate Court explained that it is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial. Jurors’ views of the evidence, moreover, are necessarily informed by their life experiences, including their education and professional work. A juror, however, should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a juror’s own claim to expertise or specialized knowledge of a matter at issue is misconduct. Jurors may not discuss new facts that offer other jurors any basis for deciding the case other than the evidence and testimony presented at trial.
The California Appellate Court stated that there was no evidence concerning the protocol for documenting patient information in the emergency room record. Thus, the nurse juror’s statement “crossed the line into misconduct” by filling an evidentiary gap and offering the jurors a basis for deciding the case on additional information she had learned while working as a registered nurse in an emergency room setting – that the emergency room record would have documented the presence of a bandage on the plaintiff’s arm if a bandage had been present on his arm when he was admitted in the emergency room.
“[W]e conclude under any standard of review that the trial court did not err in finding that the nurse juror’s statement regarding the documentation of patient information in the emergency room record constituted misconduct. Because there is substantial evidence supporting the court’s misconduct finding, we see no reason to disturb the new trial order on that basis.”
Source Wibbeler v. Kamath, A159347.
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