Ours was a medical malpractice case. A surgeon mistakenly cut a nerve which was in an unexpected place (no it wasn’t the plaintiff argued). He attempted a repair (no he shouldn’t have the plaintiff argued), but the outcome was poor to moderate and the patient ended up with impaired speech and swallowing, devastating to a woman in show business and with an active social life (not so bad the defendant argued).
We listened to surgeons describe their experience and education. and they described procedures and anatomy and something called the “standard of care.” As many as five percent of patients experience some nerve damage and this patient, an operating room nurse, was aware of the risks. But the procedure promised to prevent a stroke and to save her life.
On top of all the medical evidence we had to sit through a parade of friends and colleagues testifying how the injury ruined her life and her career. An expert projected her medical costs. An economics professor project her past and future lost income. She testified and we heard her slurred speech. The surgeon testified and we heard his sincere regret. The lawyers introduced hundreds of pages of her tax records to show how much money she made and could have made. Her monthly planner showed how her life has not slowed down since the injury. Veins are blue and nerves are white. Not always. Back and forth the assertions and arguments flew.
Every day, I caught a bus at 8 a.m. to get to the courthouse by 9:00. I filled two steno pads of notes. Other jurors took even more notes.
The lawyers were all very good and it was clear they had invested a great deal of time and money in their cases. The computerized audio-video system allowed them to quickly punch up power point slides, pages from text books, photographs, documents, and video clips. It worked efficiently indicating extensive rehearsal. It’s show business after all. We heard from twenty-nine witnesses. The documentary exhibits filled three large loose-leaf binders.
We got the case on day nine and I volunteered to be the “principal juror.” I’m a recovering bureaucrat and can keep meetings on track pretty well. On the jury form we had to determine if 1) the standard of care was violated, 2) the violation was the proximate cause of the injury, and 3) any damages. If we answered no to the first question, the case was over. If we answered no to the second question, the case was over. If we answered yes to 1) and 2) we calculated damages.
It was a good, balanced group. Ten men and two women, a couple of retirees, several corporate employees whose companies allowed them time off for jury duty, and some civil servants. One man was a veteran of World War II. Another showed elaborate body art reflective of Generation Y. Two jurors were foreign-born.
We voted on the original injury and came down seven to five that the standard was NOT violated. I was one of the seven. We needed ten for a verdict. After discussion it was obvious that no one was willing to budge on that. So I moved the topic to the repair of the injury. This was seven to five that the standard WAS violated. I was one of the seven.
We hashed it around and slowly it came down to ten to two against the defendant because the surgeon had the opportunity to get expert help in repair of the nerve. We felt he should have asked for help and an expert was right next door. We never resolved the issue of the cutting of the nerve. Then we had to determine proximate cause and we quickly found that the cause was there. On to question 3).
This tied up the rest of the day and brought us back in the morning. We took the economist’s word that she lost money. We took the expert’s word about future medical expenses. We argued a lot about how much future income was at stake and even reduced the economist’s projections. It was still a lot of money and left her more than comfortable for the rest of her life.
Non-economic damages. Pain and suffering. Loss of enjoyment. Difficulty swallowing. Loss of a career she loved. All of us were totally offended by the requested amount, but there was little hard evidence to guide us. Here we had to project ourselves into her situation and here we disagreed the most. I came down at the low end of the range.
As the principal juror I had to make sure people spoke one at a time, to draw out jurors who tended to remain silent, and not dominate the deliberations myself. One end of the table tended to be more vocal. “I want to hear from this end of the table,” I said several times. Once or twice people became testy, but I kept things civil. I used to attend meetings where people carried guns (which I taught them to use).
We finally came up with a number. I won’t disclose it because then the number becomes the story and that’s not my point here. It was way below what the plaintiff asked and, I learned later, way below what the plaintiff asked for in settlement negotiations.
The plaintiff did not attend the verdict, but the surgeon did. I didn’t even wait to see the reactions of the players. As soon as we delivered the verdict and were discharged, I took off because one of my CASA cases had started the morning before and I needed to be there. But the experience stayed with me. It was a sad story all around. The surgeon was experienced, talented, and dedicated. He apologized for the mistake. It was just one of those things. The patient had a compelling life story. She was attractive, popular, and very good at what she did. She made a good living until things went bad.
Did I do the best job I could have? Should I have insisted we resolve the issue of the cutting of the nerve? Should we have spent more time on proximate cause? Did I compromise too much on my opinions in the damages? A surgeon’s distinguished career has been tarnished, but the plaintiff’s life was transformed by his decision. Would another surgeon have done any better? The experts disagreed, but we had to make a decision.
Things are always better in the morning and this is no exception. I suppose that there was nothing else I could do for any of the parties and the result was probably the same if they had just settled. The other trial quickly took my attention as I worked to find permanent and safe homes for three young children. Them I could help. As I write this, that case has stretched over two weeks and goes into next week.
For the CASA case I don’t even get the ten bucks a day.