October 10, 2013

162017_132140396847214_292624_nOn October 3, 2013, a Culpeper, Virginia medical malpractice jury advised the presiding judge that it was unable to agree on a verdict despite 11 hours of jury deliberations over two days. The jury of three men and three women handed the judge a note that stated, “We are all in agreement that we are at a standstill. We feel that we are still far apart.”

The Virginia medical malpractice jury was charged with deciding the malpractice claim filed against Culpeper orthopedic surgeon Robert Rutkowski, M.D. The plaintiff alleged that Dr. Rutkowski negligently performed clavicle surgery on her on October 26, 2011 that resulted in her suffering a disfigured left shoulder, pain in her left clavicle, and a permanent and severe left shoulder injury.

The jury was advised that Dr. Rutkowski had performed both a carpal tunnel release and a repair of the plaintiff’s left clavicle, which had been severed in three places during the 1990s. Dr. Rutkowski attempted to attach a six-inch metal plate to the woman’s clavicle during the surgery but claims that he was unable to screw the plate in place due to the poor condition of the woman’s bone. Therefore, Dr. Rutkowski testified that he used surgical sutures instead of screws to hold the plate in place. The hardware was removed by another orthopedic surgeon in December 2011.

The Defendant’s expert testified during trial that Dr. Rutkowski’s fixation technique was appropriate. The plaintiff’s expert testified that the surgery performed by Dr. Rutkowski had a “100% chance of failure” and that “[t]he sutures acted like a cheese cutter and cut through her soft bones. They created multiple fractures in her bones.”

During its deliberations, the jury posed the following five questions to the trial judge:

1. Why did Dr. Rutkowski not note in the operative report that he attempted to place screws in the distal portion of the clavicle without success?

2. What does Dr. Rutkowski define as uneventful as stated in the operative report?

3. Why didn’t Dr. Rutkowski notify Mr. or Mrs. Nettles during or after the surgery that all the screws could not be placed and sutures were used?

4. Why didn’t Dr. Rutkowski discuss putting sutures in after the surgery as an accepted technique and would be used if needed?

5. Did Dr. Rutkowski provide the risks of using sutures and were they noted on the consent form that was signed by Mrs. Nettles, if not, why?

The trial judge responded by instructing the jury, “The court can’t answer these questions because the evidence is in.” The jury advised the judge that it was deadlocked in its deliberations shortly thereafter.


Two major shortcomings in the jury trial procedures in many U.S. states are: (1) rules that preclude members of the jury from asking questions during the trial and (2) jurors are typically instructed that they must rely on the testimony and the evidence introduced by the parties during the trial despite questions that may arise during jury deliberations.

Some people would argue that it would promote justice and would result in a greater ability to determine the truth as to the parties’ allegations if jurors were allowed to ask questions during trial while others would argue that allowing jurors to ask questions during trial would disrupt the flow and orderly presentation of the evidence during the trial.

In any event, it appears that the Culpeper, Virginia medical malpractice jury’s five questions were relevant, important, and deserved to be answered (ideally, the parties would have presented those answers during the trial).

If you or a family member may have suffered injuries or other harms as a result of Virginia medical malpractice or medical malpractice in another U.S. state, you should promptly seek the advice of a Virginia malpractice attorney or a malpractice attorney in your state who may investigate your malpractice claim for you and represent you in a malpractice lawsuit, if appropriate.

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