By Pat Murphy
The Daily Record Newswire
BOSTON — A medical-malpractice plaintiff will get a new trial because a nurse who served as jury foreperson broke her pledge not to bring her professional experience to bear in deliberations.
“Counsel were entitled to rely on the foreperson’s guaranty to the trial court that she would not allow her professional expertise to override the testimony presented,” wrote Oklahoma Supreme Court Justice Joseph N. Watt in Ledbetter v. Howard.
The plaintiff in the case, Guy Ledbetter, is an Oklahoma City-area resident who has a long history of diabetes.
He suffers from peripheral neuropathy of the legs and feet, a serious diabetic complication affecting the nerves of those appendages.
On May 31, 2005, Ledbetter went to his primary care physician complaining of swelling, redness, and discomfort in his left foot and leg. His doctor initially diagnosed Ledbetter with cellulitus, an infection of the soft tissues, and began treating him with oral antibiotics.
Ledbetter’s condition hadn’t improved by June 7th, so Ledbetter’s doctor had him hospitalized for intravenous antibiotics. While hospitalized, Ledbetter had x-rays taken of his left foot on June 9th to determine if he suffered from a bone infection.
These first x-rays were read by Dr. Derek Howard of Radiology Services of Ardmore.
Dr. Howard allegedly reported no dislocations or fractures and that Ledbetter’s foot was radiographically normal. Ledbetter was subsequently released from the hospital when his condition seemed to improve.
However, Ledbetter continued to experience swelling in his left foot and his family doctor ordered a second set of x-rays three weeks later. X-rays taken on July 5th showed a dramatic deterioration of the bones in Ledbetter’s left foot.
Ledbetter’s doctor sent him to a foot specialist to be treated for Charcot Foot, a disease of the nerves which causes deterioration of the bone structure of the foot. To treat the Charcot Foot, Ledbetter needed reconstructive surgery and extensive rehabilitation.
Ledbetter sued Howard and Radiology Services for negligence, alleging that the doctor misread the June 9th x-ray, causing delayed treatment of his rapidly deteriorating left foot.
During voir dire, the woman who would eventually become jury foreperson testified that she was a licensed practical nurse who provided home-health care.
The foreperson explained that, although she dealt with diabetics on a daily basis, she had never attended a patient with Charcot foot.
Naturally, the trial court was concerned the foreperson would introduce her professional experience into jury deliberations.
But the foreperson was seated after she assured the court that she could be unbiased and that she would not substitute her experience as a nurse for the evidence introduced at trial.
When the jury returned a defense verdict, Ledbetter’s lawyers smelled a rat.
After doing some digging, they came up with evidence that the foreperson had broken her pledge to the court that she would not infect jury deliberations with her professional experience.
One of the foreperson’s fellow jurors signed a sworn affidavit recounting that the nurse had taken charge of deliberations “eagerly sharing her experiences and knowledge of the proper care and treatment of diabetic patients.”
According to the juror, the foreperson had hypothesized that Ledbetter’s history of foot problems was probably due to his failure to take his insulin as instructed.
Moreover, the foreperson allegedly opined that, because Ledbetter had Charcot foot, he would “likely have had the same problems and result” regardless of any delay in treatment caused by Howard’s misreading of the original x-ray.
The juror’s affidavit was sufficient to convince the trial court to grant Ledbetter a new trial on the ground of juror misconduct, but a state appeals court ordered that the defense verdict in favor of Howard and Radiology Services be reinstated.
Last month, the Oklahoma Supreme Court rode to Ledbetter’s rescue, concluding that a new trial was in order.
Justice Watt in his majority opinion first addressed Howard’s threshold argument that, under state law, the juror affidavit was inadmissible to impeach the jury’s verdict.
Watt concluded that the affidavit was admissible under the “extraneous prejudicial information” exception to Oklahoma law generally protecting the integrity of jury verdicts.
The justice explained that the foreperson’s statements as reported in the affidavit were “clearly improper” under the statutory exception because they were “statements of fact by the foreperson; involved purportedly extraneous information arising solely from the foreperson’s professional experience; and were intended to sway the jury toward a defendant’s verdict.”
Watt emphasized that the court’s decision in Ledbetter was not a broad pronouncement on when or how a professional may utilize individual training or expertise in the deliberative process.
Nor did the case stand for the proposition that a prospective juror’s single false answer during voir dire justifies a new trial, the judge said.
Instead, Watt said that a new trial was in order in Ledbetter’s case because counsel were entitled to rely on the foreperson’s guarantee that she would not allow her professional expertise to override the evidence presented at trial.
“Here, the simple fact is that during voir dire, the foreperson clearly stated that she would not substitute her experiences as a nurse to diabetic patients to over-ride witness testimony,” Watt wrote.
“The affidavit indicates she did exactly what she promised not to do once deliberations began and went even further by attempting to influence her fellow jurors based on her professional knowledge and experiences, all while acting in the leadership position of foreperson on the jury.”
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