This month we look at a highly unusual case, but one which has occurred in the past and probably will in the future. What happens if a juror becomes ill and the defendant doctor (and in this case the defense attorney who was also a nurse) provides aid? Does this require a mistrial?

The physician, Dr S, was a surgeon who had been sued by the guardians of his patient, Ms G. The plaintiffs had filed a medical malpractice action against the doctor, alleging that he had negligently performed Ms G’s spinal surgery and had been negligent in follow up care, resulting in Ms G’s partial paralysis in all 4 limbs, incontinence, inability to sit, and impaired cognitive abilities, among other injuries.

The case went to trial. At trial there was conflicting testimony about what advice Dr S had given when the patient’s guardian called and said Ms G was experiencing headaches and increased redness and swelling at the surgical site, but no fever. The doctor and his nurse both testified that they advised that the patient be taken to the emergency department at that time. Ms G’s guardian denied being told this. The guardian called again 3 days later to ask for stronger medication for Ms G’s headaches. The doctor did not prescribe anything and advised the guardian to bring Ms G in to the clinic. At trial, the guardian testified that she had not been told that, but rather had been told to double up on the current pain medication, a claim which Dr S roundly denied.

At the end of the trial, the witnesses had all been presented and the jury was seated to begin hearing the closing arguments when a juror became ill and asked for a break. The judge announced that they would take a break and instructed the ill juror to go to the jury room. The ill juror was escorted by 2 other jurors, one of whom was a registered nurse. The other jurors remained seated in the jury box.


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At some point someone called from the jury room that the ill juror was not breathing. Upon hearing this, Dr S’s defense counsel, who was also a nurse, jumped up and immediately ran to the jury room to provide emergency assistance. Dr S ran in behind her.

The juror was lying on the floor, seemingly unresponsive and pale in color. As the defense attorney knelt and felt for a pulse, the juror awoke and began speaking, and appeared to be stable. At that point the paramedics arrived and Dr S (who had not done anything in the jury room) and his defense attorney returned to their table.

After being examined by the paramedics, the juror declined further treatment but asked to be excused from the jury. The judge replaced the juror with an alternate juror. Neither attorney protested. The trial resumed and both sides did their closing arguments. After the closing, the judge asked the attorneys whether they wanted the jurors to begin deliberation immediately or to wait until the next morning. The plaintiff’s attorney requested that they wait to start deliberating until the following day.