Georgia Court of Appeals Determines Whether Jurors May Use the Sense of Touch in Assessing Evidence


In a recent medical malpractice decision, the Georgia Court of Appeals addressed an intriguing issue concerning whether jurors may use the sense of touch in weighing evidence.  The decision, Piedmont Newnan Hospital, Inc. v. RA-085 Barbour, arose from an alleged act of medical negligence that occurred during the course of medical testing at a Georgia hospital.  During the trial, counsel for the plaintiff requested that the jury be allowed to touch the plaintiff’s hands in order to determine whether there was a perceptible difference in temperature, a fact important for assessing the testimony provided by the parties’ competing expert witnesses.  The trial court granted the plaintiff’s request, permitting jurors who wished to touch the plaintiff’s hands to do so. Following the trial, which led to a favorable judgment for the plaintiff, the defendant appealed several issues, including the trial court’s ruling to let the jury utilize their sense of touch.

This events leading to this suit started on June 1, 2011, when the plaintiff visited the defendant hospital, complaining of chest pain and labored breathing. The plaintiff underwent a battery of diagnostic tests, in particular a nuclear stress test, which compares blood flow to the heart at periods of rest and stress. The test requires a small amount of nuclear material to be injected into the patient’s bloodstream, so that it may serve as a tracer and aid in taking images of the heart. In this case, the tracer was administered using an IV catheter, which was originally placed in the patient’s left arm. During the stress portion of the test, and shortly after a second dose was administered, the plaintiff began to experience pain. A nurse terminated the test, believing that the nuclear material may have infiltrated the plaintiff’s arm. The plaintiff was discharged with instructions for dealing with his arm.

The pain in the arm, however, did not subside, and the plaintiff called a nursing hotline four days afterward to complain of worsening symptoms. Shortly thereafter, the plaintiff visited a primary care physician and then made two emergency visits, including one at the defendant hospital. Eventually. the plaintiff was evaluated by a neurologist, who diagnosed the plaintiff with Complex Regional Pain Syndrome (“CRPS”).  The diagnosis was confirmed later by a orthopedic surgeon who is an expert in the condition. The orthopedic surgeon’s opinion was that the condition was caused by infiltration during the nuclear stress test.  The plaintiff underwent several procedures to treat the condition, and the hospital contends that these procedures were the actual source of the plaintiff’s CRPS, if in fact the plaintiff suffers from CRPS, a fact the hospital did not concede. The plaintiff ultimately brought suit against the hospital and one of the nurses who cared for him during the stress test procedure. The case led to a nine-day trial, at which the defendant hospital denied that the plaintiff suffered from CRPS, and it claimed that if he did it was not a result of their negligence but instead caused by the procedures he later underwent to deal with his arm pain.

As is often the case in medical negligence actions, it became a battle of competing experts. The plaintiff’s expert testified that part of his diagnosis of the plaintiff’s condition related to the noticeable difference in temperature between the plaintiff’s injured and uninjured arms. The expert further noted that this difference was generally perceptible by touch alone. At this point, the plaintiff’s counsel requested that jurors be allowed to touch the plaintiff’s hands to detect the difference, which as noted before, the court allowed. On appeal, the hospital argued that the trial court abused its discretion, since it called for the jurors to make a medical diagnosis, and given that the jurors cannot do so, the prejudicial effect outweighed any probative value.

This case presented an issue of first impression to the Georgia Court of Appeals. Indeed, there was no case squarely dealing with whether a juror may employ the sense of touch to confirm an aspect of a medical expert’s diagnosis. However, Georgia law does permit jurors to employ more than sight and hearing in assessing evidence, as demonstrated by cases from the prohibition era. See, e.g., Union v. State, 7 Ga. App. 27, 27 (1909) (finding no error based on jurors being permitted to taste liquid that was allegedly illegal whiskey); Morse v. State, 10 Ga. App. 61, 63 (1911) (holding that jurors may make recourse to all of their senses, including taste and smell, in order determine whether offending liquid was liquor”).  Accordingly, the Court of Appeals found that it was not per se an abuse of discretion for the juror to employ the sense of touch. Nevertheless, the question was narrowed to whether the jurors were being asked to perform a medical diagnosis when they touched the plaintiff’s hands. The court found this argument to also be unavailing, for the jurors were only asked to sense whether there was a difference in temperature, an issue of fact that a layperson can determine, not to engage in the ultimate diagnosis of the plaintiff’s condition.

Finding that the evidence had probative value, the Court of Appeals next determined whether the possible prejudice outweighed the probative value of having the jurors determine whether there was a perceptible difference in temperature. The defendants argued that possible prejudice existed here because they argued not only that the plaintiff did not suffer from CRPS but also that if he did suffer from the condition, it was caused by his subsequent treatment. However, the Court of Appeals determined that even if the defendant’s theory could create a risk of prejudice, this risk did not outweigh the jury’s ability to confirm that part of the diagnosis was inappropriate.

Finally, the Court of Appeals summarily rejected the hospital’s contention that by touching the hand, the juror were converted into witnesses, which could not be cross-examined. The Court of Appeals noted that simply being asked to consider evidence using a sense besides sight or sound doesn’t convert a juror into a witness, for jurors are indeed tasked with the responsibility for using their senses to evaluate the evidence. Accordingly, the Court of Appeals affirmed the trial court’s ruling.

Given the lack of precedent on the issue, the plaintiff’s counsel took a risk making this request. However, trials often call for creativity in the absence of clear guidance, and anyone considering taking legal action to redress an injury should consider finding counsel capable of making informed, calculated decisions in order to best present the case. The Atlanta wrongful death attorneys at Christopher Simon Attorney at Law have represented Georgians in varying contexts and are experienced in making these sorts of informed decisions. Indeed, if you’ve recently been harmed in a possible case of negligence and are curious about the viability of your possible claims and strategies for obtaining recovery, feel free to contact us for a free consultation.

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