Medical Malpractice

Editor:
Stephen H. Ringkamp

Medical malpractice/wrongful death action against physicians related to treatment of mother for deep vein thrombosis in left leg. Physicians treated with anticoagulants which caused a cerebral bleed, leading to the death of mother. Jury verdict for defendants. Plaintiffs’ appeal was based on:  (a) Batson challenge, (b) juror non-disclosure, and (c) posts on Facebook by foreperson. J.T. and A.T., et al. v. Anbari,  et al., No. 32562 (Mo. App. S.D., January 23, 2014), Sheffield, J.

Two minor plaintiffs brought this medical malpractice/wrongful death case for the death of their mother. Mother had been treated for deep vein thrombosis (blood clots) in her left leg. During a second hospitalization, the Defendants treated mother with anticoagulants which caused a cerebral bleed and death. Jury verdict was rendered in favor of Defendants. On appeal, Plaintiffs raised three jury issues which were rejected. Jury verdict affirmed.

(a) Plaintiffs initially raised a Batson challenge to the peremptory strike by the defense of the only venire person who was African-American. That potential juror was a single mother who was a paralegal with prior blood clots treated at one of the local hospitals. Following the peremptory challenge, Plaintiff raised the Batson issue. Defense counsel provided a “race-neutral explanation” that the juror’s legal education, similar, prior blood clots, and single mother status (similar to the deceased), as the reasons for the peremptory strike. Defense counsel also pointed out that no minorities were involved as parties or witnesses in the case. The trial court and the court of appeals accepted this race-neutral explanation and held that the Plaintiff failed to show that the explanation was pretextual.

(b) Plaintiff also claimed that one of the jurors, during jury selection, intentionally failed to disclose that she and her deceased husband had been treated with heart stents nearly 20 years before trial. Neither the juror nor her husband had any problems with blood clots. The stents were placed to avoid heart attack. The juror explained that she thought the focus of juror questioning was on blood clots in the legs. Under the circumstances, both the trial court and the appellate court held that the disclosure was not intentional. No prejudice shown. Although Plaintiff’s counsel briefly referenced stents during the jury selection process, earlier explanation seemed to indicate to the jurors that the focus of the questions was on blood clots in the legs. Because of the remoteness of the juror’s treatment with stents, and her understanding of the questions, there was no intentional non-disclosure.

(c) Finally, the foreperson of the jury made several posts on Facebook during and after the trial. Those posts merely related to the fact of jury duty, lunch locations, that the jury was not sequestered, and that the case was over with the juror’s duty fulfilled. None of the Facebook posts disclosed any thoughts or impressions about the case, and no responses provided information to the juror regarding the case.

Held:
Affirmed.The posts were similar to advising an employer of the fact and duration of jury duty. If such information had been conveyed in person to a friend or colleague, there would have been no misconduct. Since the Facebook posts were not “about” the case, there was no violation of the court’s instructions. See MAI 2.00(A) and (B).