Georgia Supreme Court Discusses Ex Parte Communication With The Jury And Spoliation In Medical Malpractice Cases

162017_132140396847214_292624_nIn its June 29, 2015 decision, the Supreme Court of Georgia discussed the effect of a judge’s communication with a medical malpractice jury without the parties or their attorneys being present, and whether a spoliation instruction was appropriate where the defendant hospital had destroyed potentially relevant evidence as part of its routine document retention policy.

The Georgia medical malpractice plaintiffs had brought a medical malpractice case against the defendants, alleging that the defendants’ negligence caused their baby to suffer oxygen deprivation shortly before birth, resulting in severe, permanent neurological injuries, including spastic quadriplegia, blindness, and an inability to speak. After a lengthy trial, the medical malpractice jury returned its verdict in favor of the defendants.

The plaintiffs filed a motion for a new trial, alleging that the trial court erred by engaging in a communication with the jury when neither the parties nor their attorneys were present and by refusing to give their requested jury instruction on the spoliation of evidence. The plaintiffs’ motion for new trial was denied. The plaintiffs thereafter appealed to the intermediate appellate court, which concluded that the trial court did not abuse its discretion in refusing to give plaintiffs’ requested instruction on spoliation of evidence but reversed the trial court’s denial of the plaintiffs’ motion for new trial after determining that plaintiffs were entitled to a new trial because the trial court responded to a note from the jury during the course of their deliberations without ever advising the parties or their attorneys that the communication had taken place.

The Trial Judge’s Communication With The Jury

Several weeks after the jury returned its verdict in favor of the defendants, two jurors contacted the plaintiffs’ attorney regarding possible juror misconduct. During that conversation, the plaintiffs’ attorney learned for the first time that the trial judge had responded to a note from the jury without disclosing to the parties or their counsel the contents of the note or his response. The plaintiffs’ attorney obtained affidavits from the two jurors, which averred that on the second day of deliberations, the jury sent a note to the trial judge indicating that they were not able to reach a unanimous verdict, and that the judge sent back a note instructing the jury to “continue deliberating.”

Subsequently, the plaintiffs’ attorney asked the trial judge to take measures to see that both the jury note and the judge’s responsive note were filed with the clerk of court. After realizing that the court reporter did not have a copy of the jury’s note, the trial judge, without holding a hearing or seeking any input from the parties’ attorneys, entered an order supplementing the record pursuant to OCGA § 5-6-41 (d). The order stated that four notes were delivered to the court during deliberations and that three of them were preserved and made part of the record, but that the note regarding the jury’s inability to reach a unanimous verdict was not one of them. The order stated that the missing note read, “What happens if we can’t reach a unanimous verdict,” and was delivered to the court immediately after lunch recess on the first day of jury deliberations. Due to the fact that the note did not actually indicate that the jury was “hung,” and in view of the short amount of time that the jury had been deliberating after the lengthy trial, the trial judge did not believe it was necessary to consult with counsel about his response; therefore, the trial judge wrote on the same piece of paper, “please continue deliberating,” and had the bailiff return the note to the jury. The trial judge also stated that the note had remained with the jury, and presumably was destroyed along with the jurors’ personal notes, as instructed by the bailiff after return of the verdict.

The Supreme Court of Georgia stated that a trial court’s communication with a jury on substantive matters is a part of the proceedings to which the defendant and counsel are entitled to be present in a criminal trial, and a jury communication regarding its inability to reach a verdict has been deemed a substantive matter for the purpose of a defendant’s right to be present during a criminal trial. The Supreme Court of Georgia concluded that it cannot sanction communications of a substantive nature between a trial judge and a jury outside the presence of the defendant and counsel in a criminal trial, and it should not do so in a civil trial as such actions are no less a violation of a party’s right to be present during trial.

The Supreme Court of Georgia held that the unique circumstances of this case, which include the untimely and serendipitous disclosure of the communication to plaintiffs or their counsel; the plaintiffs’ inability to make the actual note or response a part of the record; the differing recollections about the nature and timing of the communication; the failure to resolve the perceived conflicts; and, the inability to make a determination that a verdict for defendants was demanded, regardless of any effect of the communication on the jury, support the plaintiffs’ entitlement to a new trial.

Spoliation Of Evidence

Spoliation is used to refer to the destruction or failure to preserve evidence that is relevant to contemplated or pending litigation, which conduct may give rise to the rebuttable presumption that the evidence would have been harmful to the spoliator. However, in order for the injured party to pursue a remedy for spoliation, the spoliating party must have been under a duty to preserve the evidence at issue.

The destroyed evidence at issue in this case was printed paper strips of the electronic monitoring of the baby’s fetal heart rate. The plaintiffs alleged that the defendants acted negligently in monitoring and responding to the baby’s heart decelerations and periods of bradycardia, which are signs of fetal distress. Acute, sustained bradycardia can cause brain damage as a result of oxygen deprivation, and generally the longer it lasts, the greater the potential brain damage.

At the time of the baby’s birth, the medical records at the defendant hospital were maintained electronically. Nevertheless, the nurses often took notes on paper fetal monitor strips during labor and delivery. Though these strips were not considered a part of the official record, the nurses would refer back to their notes to complete the official record. The defendant hospital maintained the strips for 30 days post-delivery, and then would routinely destroy them. The strips at issue were destroyed pursuant to this procedure. There was some evidence in this case that there were nursing notations on the printed strips, not part of the electronic record, which were relevant to the timeliness of medical response to the baby’s signs of fetal distress, and thus, relevant and arguably critical to the plaintiffs’ claim of the defendant hospital’s failure to adhere to the appropriate standard of care.

The Supreme Court of Georgia stated that the duty to preserve relevant evidence must be viewed from the perspective of the party with control of the evidence and is triggered not only when litigation is pending but when it is reasonably foreseeable to that party. For the plaintiff, the duty arises when that party contemplates litigation, inasmuch as litigation is obviously forseeable to the plaintiff at that point. As to the opposing party, usually the defendant, the duty arises when it knows or reasonably should know that the injured party, the plaintiff, is in fact contemplating litigation, which the cases often refer to in terms of “notice” to the defendant.

Litigation may be reasonably foreseeable to the defendant based on other circumstances, such as the type and extent of the injury; the extent to which fault for the injury is clear; the potential financial exposure if faced with a finding of liability; the relationship and course of conduct between the parties, including past litigation or threatened litigation; and, the frequency with which litigation occurs in similar circumstances.

The Supreme Court of Georgia held that the trial court’s exercise of discretion in ruling that the defendants had no duty to preserve the paper fetal monitor strips, and the lower appellate court’s upholding of that ruling, appear to rest on the legally incorrect premise that a defendant’s duty to preserve evidence required notice of a claim or litigation from the plaintiff, i.e., actual notice, without regard to other circumstances, such as the type and extent of the injuries (severe injuries to a newborn child after an unexpectedly difficult delivery), the high damages that can flow from such injuries, the frequency of litigation in these circumstances, and the defendant’s internal investigation and notification to its counsel and insurer.

Therefore, the Supreme Court of Georgia held that it could not uphold the lower courts’ rulings with regard to the spoliation issue. However, the Supereme Court of Georgia stated that a rebuttable presumption or adverse inference jury instruction such as the one requested in this case is to be given as a remedy for spoliation of evidence only in exceptional cases, that the greatest caution must be exercised in its application, and that each case must stand upon its own particular facts.


If you or a loved one suffered a birth injury in Georgia or in another U.S. state, you should promptly find a Georgia medical malpractice lawyer, or a local medical malpractice lawyer in your state, who may investigate your birth injury claim for you and represent you in a birth injury case, if appropriate.

Visit our website to submit a short, secure form, or call us toll-free in the United States at 800-295-3959, to find birth injury lawyers in Georgia or birth injury lawyers in your state who may assist you.

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This entry was posted on Saturday, July 11th, 2015 at 5:14 am. Both comments and pings are currently closed.


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