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Appeals Court Says It’s OK for Jurors to Physically Examine Malpractice Plaintiff

How far may a court go in allowing jurors to personally examine evidence? The Georgia Court of Appeals recently addressed this question in the context of a medical malpractice case. Specifically, the court reviewed a trial judge’s decision to allow jurors to physically touch a plaintiff’s hands.

Piedmont Newnan Hospital, Inc. v. RA-085 Barbour

The plaintiff in this case went to a hospital in Newnan, Georgia, complaining of chest pains. Hospital personnel conducted a series of diagnostic procedures, including a “nuclear stress test.” This test requires the use of IV catheters to inject small amounts of nuclear material into a patient’s arm. This material helps trace the flow of blood into the patient’s heart at different intervals.

In this instance, the plaintiff received the IV injections in his left arm. During the test he complained of sharp pain in the arm, which led a nurse to conclude the nuclear material had leaked from the vein into the soft tissue of the arm itself. The arm later swelled and became discolored.

Unfortunately, the plaintiff’s pain continued even after his discharge from the hospital. After several more visits to his primary care physician and the emergency room, a neurologist diagnosed the plaintiff with “complex regional pain syndrome” (CRPS), effectively permanent nerve damage which causes chronic pain. A CRPS specialist confirmed the plaintiff’s diagnosis and said the botched nuclear stress test was to blame. The specialist would go on to perform two surgeries to address the nerve damage.

The plaintiff subsequently sued the hospital for malpractice. The hospital denied any responsibility, indeed arguing the plaintiff did not suffer from CRPS, or if he did, it was the result of his subsequent treatment by other physicians.

At trial, both sides presented expert witnesses who clashed on the key issue of whether the plaintiff had CRPS. During cross-examination, the defense’s expert conceded he could not confirm or deny the plaintiff’s diagnosis without personally examining his hands. The plaintiff’s attorney then invited the expert to do just that in front of the jury. The plaintiff’s expert later conducted a similar examination.

The experts were looking for any difference in temperature between the plaintiff’s left and right hands. The plaintiff’s expert said the the left arm was “very cool compared to the right arm,” an indication of CRPS. The defense expert, in contrast, said the left arm was a “little cooler” but still “roughly the same” as the right arm.

To help clarify the matter for the jury, the plaintiff’s attorney asked the judge to allow jurors, at their discretion, to feel the plaintiff’s hands for themselves. The defense objected. The judge overruled the objection, and several jurors went on to touch the plaintiff’s hands. The jury ultimately returned a verdict for the plaintiff.

On appeal, the hospital argued the trial judge was wrong to permit jurors to physically touch the plaintiff’s hands. The Court of Appeals disagreed. Judge William M. Ray, writing for the Court of Appeals, said given the facts of this case, there was nothing wrong with allowing jurors to use their sense of touch in order to help weigh the credibility of the dueling expert witnesses. “There is no argument that the jurors should not have been permitted to use their sense of sight to look for nervousness, fidgeting, sweating, or other nonverbal indications that a witness might be lying,” Judge Ray said, adding, “Why, then, cannot the sense of touch be utilized by the jury in appropriate circumstances, limited by the exercise of the sound discretion of the trial court, just like the senses of sight, hearing, and even taste have been so allowed?” (The mention of “taste” refers to a Prohibition-era case Judge Ray cited where a judge permitted jurors to sample from a jug allegedly containing illegal whiskey.)