Med Mal News

On appeal, King & Spalding partner Chilton Varner, arguing for the hospital, said that the issue of the juror touching was an important one of first impression, and that the verdict should be overturned because that touching amounted to permitting laypersons to diagnose a medical condition. In addition, since not all the jurors chose to feel Barbour's hands, those jurors who did touch him became witnesses in the jury room whose opinions might be given more weight than the opinions of the non-touchers, the hospital argued. One of the plaintiff's appeals attorneys, Atlanta lawyer Darren Summerville, countered that Georgia case law indicates that jurors may use their five senses to decide issues in a case. He added that the touching merely permitted them to gather evidence to resolve a credibility issue: The defense expert said both hands were the same temperature, while the plaintiff's expert said they were quite different. Thus, according to Summerville, one of the experts was either “lying or egregiously wrong.”

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Feel for Yourself: Juror Touching Challenged on Appeal

A Georgia hospital is appealing a lost medical malpractice case by arguing that the jurors should not have been permitted to feel the plaintiff's hands to see if one of them was cold ' an indication that he was suffering from the pain syndrome he complained of.

The plaintiff, Michael Barbour, went to Piedmont Newman Hospital in June 2011 complaining of chest pains. To aid in diagnosis, medical personnel there inserted a catheter into a vein in Barbour's arm and injected it with material that could be seen with a medical imaging device. During the procedure the plaintiff's arm swelled, indicating that the fluid had not stayed in the vein but had entered the soft tissue. He sued for medical malpractice, asserting that the faulty procedure left him suffering from complex regional pain syndrome. During trial, a defense expert felt Barbour's hands and testified that they were roughly the same temperature. Next, a plaintiff expert felt his hands and declared that their difference in temperature was “pretty easy to detect.” Over defense objection, the jurors were then permitted to feel the plaintiff's hands for themselves. Some of them did so, but others chose not to. The jury returned a verdict of $4.4 million for the plaintiff.

On appeal, King & Spalding partner Chilton Varner, arguing for the hospital, said that the issue of the juror touching was an important one of first impression, and that the verdict should be overturned because that touching amounted to permitting laypersons to diagnose a medical condition. In addition, since not all the jurors chose to feel Barbour's hands, those jurors who did touch him became witnesses in the jury room whose opinions might be given more weight than the opinions of the non-touchers, the hospital argued. One of the plaintiff's appeals attorneys, Atlanta lawyer Darren Summerville, countered that Georgia case law indicates that jurors may use their five senses to decide issues in a case. He added that the touching merely permitted them to gather evidence to resolve a credibility issue: The defense expert said both hands were the same temperature, while the plaintiff's expert said they were quite different. Thus, according to Summerville, one of the experts was either “lying or egregiously wrong.”

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