Monday, August 17, 2009

Is There a Doctor In The House?

An interesting case from Montana involved a medical malpractice action brought by a widow on behalf of her late husband's estate against a doctor and a clinic. The plaintiff's attorney delivered the closing argument as a first-person narrative that the lawyer described on appeal as "[c] though he was the decedent."

When he started to describe what it felt like being autopsied, "[t]his got to be more than some could bear." A juror thought she would pass out and was attended to by the defendant, plaintiff's co-counsel (who is also a physician) and three other jurors who also were nurses. Plaintiff then sought a mistrial, which was denied. An alternate juror was seated and a defense verdict was returned.

The Montana Supreme Court reversed. The jury here saw the defendant "reacting to a real-life situation and apparently successfully delivering life-saving care. The effect on the jury is immeasurable, whether or not the individual jurors admit it or even consciously know it." The court made it clear that "no fault is assigned to any of those who responded to the ill juror in the courtroom."

How many of us can say that we were able to get a new trial because our closing argument made a juror violently ill? (Mike Frisch)

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