Nurse Juror in Malpractice Case Is Accused of Misconduct

By | 2022-05-01T20:21:33-04:00 April 27th, 2022|0 Comments

Many of my blogs have focused on nursing documentation and nurse expert testimony when malpractice is alleged against a nurse defendant. In the following malpractice case, an RN juror’s conduct during jury deliberations became the focus of an appellate court determination for a new trial.

Details Leading up to Malpractice Case

A physician removed a fatty tumor from the upper right arm of a male plaintiff by making an incision in the rear of the patient’s upper arm. The lipoma was removed, the incision was sutured, and the arm was bandaged.

The patient was told to return to the doctor’s office in 17 days. The patient kept the incision covered with the original bandage because, as he stated during the trial, he received no verbal or written wound care instructions.

Nine days after the surgery, the patient was taken to a medical center’s emergency department by ambulance. The ED physician initially diagnosed the patient as suffering from:

  •  Sepsis
  • Pneumonia
  • An acute kidney issue or damage to his heart

The patient was admitted to the ICU for treatment for pneumonia, and several hours later, a surgical consult occurred to evaluate the lesion on his right arm. The surgeon found a necrotizing soft tissue infection in the patient’s right arm. The patient was taken to surgery to remove the dead tissue.

The surgeons first treated a “ruptured bullae” on the bicep before discovering that the tissue deep in the arm under the bicep had been demolished by the infection. They then removed the sutures from the original incision. The “wound fell open” and pus oozed out from the wound. The patient’s condition continued to deteriorate, and the surgeons were forced to amputate the patient’s arms and legs to halt the spread of the infection.

The patient and his wife filed a lawsuit against the surgeon who initially treated him, alleging that he was negligent for not providing him with proper wound care instructions. This failure was a “substantial factor” in causing the infection that resulted in the loss of his arms and legs.

What Happened at the Trial Level?

The patient’s expert in the malpractice case testified that had the patient been given proper instructions and followed them, no infection would have occurred. The surgeon’s position was that the patient was provided with such instructions and that the infection was the result of the growth of bacteria in his respiratory system and not the wound, and that bacteria spread through the bloodstream.

A key issue at trial related to the wound care instructions was whether the patient was wearing a bandage when taken to the ED. Both sides relied on the ED’s and the ICU’s nursing documentation to support their respective positions as to liability.

The ED nurse’s documentation described the condition of the wound and noted that there was no dressing. The ICU nurse’s documentation noted that the dressing that was applied at home was removed. Neither of these two nurses were called to testify by the parties at trial.

During jury deliberations, a juror, who was an RN, stated her opinions during the process. As an example, she told the other jurors that, based on her experience as an ED nurse, if the plaintiff were brought to the ED with a bandage, then “[the presence of a bandage] would have been documented at the time of his admission to the Emergency Department.”

Based on the expression of her own opinions, the RN was excused from jury duty, an alternate was seated, and the jury was told to disregard their earlier deliberations and begin anew. After about three hours of deliberations, the jury returned a verdict in favor of the surgeon.

The plaintiffs filed a request for a new trial based on juror misconduct. They asserted the RN’s comments were not acceptable comments based on her own background and experience but were comments introducing new evidence.

The trial court agreed that the RN’s statements constituted jury misconduct and that they were prejudicial.

Her comments also denied the plaintiffs due process of law because they were communicated outside [of] the court. There was no opportunity to test the statements, such as introducing evidence governing policies and procedures to be followed when a patient is admitted to an ED.

The court ordered a new trial, and the surgeon appealed that order.

Appellate Court Decision

The court upheld the trial court’s granting of a new trial for the malpractice case.

The court based its decision on the fact that the surgeon did not show that the trial court erred in finding the RN juror committed misconduct. Also, the surgeon did not show that the court’s order in granting a new trial was an abuse of its discretion.

What This Case Elucidates for You

The role of a juror is a very important one in the U.S. judicial system. Because the jury is the trier of fact, each member must carefully consider only the evidence it is presented with during a trial.

Any juror remarks made during deliberations that come from one’s background in analyzing evidence is certainly allowed. However, interjecting an opinion or asserting statements that are inconsistent with “properly admitted evidence and testimony” is not acceptable.

The court acknowledged that there exists a fine line between using one’s background to analyze evidence and interjecting an opinion based on outside sources, but in this malpractice case, the court did not err in its decision to grant a new trial.

If you served on a jury and were required to analyze medical evidence, did you find this “fine line” difficult to adhere to? How did you manage that difficulty?

Take these courses to learn more:

Protect Yourself: Know Your Nurse Practice Act
(1 contact hr)
Nurses have an obligation to keep abreast of current issues related to the regulation of the practice of nursing not only in their respective states but also across the nation. Nurses have a duty to patients to practice in a safe, competent, and responsible manner. This requires nurse licensees to practice in conformity with their state statutes and regulations. This course outlines information about nurse practice acts and how they affect nursing practice.

Everyday Ethics for Nurses
(7.3 contact hrs)
This course provides an overview of bioethics as it applies to healthcare and nursing in the U.S. The course explains the elements of ethical decision-making as they apply both to the care of patients and to ethics committees. The course concludes with a look at the ethical challenges involved in physician-assisted suicide, organ transplantation, and genetic testing.


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About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

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