Supreme Court of Georgia Orders New Trial in Medical Malpractice Case


Few cases ever advance far enough to be presented to a jury for consideration. However, when there is a trial, the propriety of interactions between the court, the parties, and the jury are of prime importance. Indeed, the integrity of the judicial process depends on both the court and the parties not unduly influencing the jury’s determination, and even the appearance of a misdeed can lead to a new trial. In a recent decision, Phillips v. Harmon, the Supreme Court of Georgia dealt with such a case of possible misconduct and ordered that there be a new trial held.

The facts underlying this case are incredibly unfortunate. The suit was brought by an infant, by and through his mother, and by the mother herself in an individual capacity. The plaintiffs alleged that as a result of the negligence of the defendants the infant suffered severe oxygen deprivation shortly before his birth. Consequently, the child suffers from  permanent neurological problems, which include spastic quadriplegia, blindness, and an inability to speak. The case eventually progressed to a trial before a jury that returned a verdict for the defendants after a day and a half of deliberations. Following the jury’s verdict, the plaintiffs moved for a new trial, asserting that the trial court erred in both communicating with the jury in the absence of the parties and their attorneys and for not including a spoliation instruction in the jury instructions. Specifically, the trial court had responded to a note from the jury that was sent during deliberations without telling the parties or counsel that there had been a communication. The case was reassigned to a different judge, who denied the motion, and the plaintiff thereafter appealed to the Georgia Court of Appeals. The Court of Appeals determined that there needed to be a new trial and vacated the jury verdict. The defendants then appealed to the Supreme Court of Georgia.

In a unanimous decision, the Supreme Court of Georgia concurred with the Court of Appeals and ordered a new trial to be held. The court’s decision recounts the communication between the jury and the trial court in great detail. To summarize, the jury sent the judge several notes during deliberations. Among these notes was one indicating that the jury was unable to come to a unanimous verdict and asking what would happen if they were unable to reach a unanimous verdict. The jury had only been deliberating for a short time, so the judge wrote back “please continue deliberating.” However, the note was destroyed and never made part of the record.

In holding that a new trial needed to be conducted, the Supreme Court of Georgia determined that the plaintiff’s “right to be present” had been violated. A party in a case, whether criminal or civil, has a right to be present when his or her case is being adjudicated. Kesterson v. Jarrett, 291 Ga. 380 (2012). The right to be present encompasses “[a] trial court’s communication with a jury on substantive matters,” and it is beyond cavil that a jury’s communication concerning the inability to reach a verdict is substantive in nature. Lowery v. State, 282 Ga. 68, 73 (4) (b) (2007). Although many cases dealing with these issues are raised in the criminal context, the Supreme Court found that it is no less an issue in the civil cases. Since the parties were without representation or input during these substantive communications, the Supreme Court of Georgia concluded that their right to be present was violated.

The Supreme Court of Georgia next needed to determine whether any harm arose from this violation. In criminal cases, there is a presumption of prejudice arising from a violation of the right to be present, but the Supreme Court of Georgia has not yet determined whether such a presumption applies in civil cases. The Supreme Court deferred this question because it determined that harm could be shown using the standard for demonstrating harm that is more commonly used in civil cases. See O.C.G.A. § 9-11-61 (obliging trial court to ignore defects in trial court proceedings unless the defects affect the substantial rights of the parties). In this case, the Supreme Court found that the violation here had not been and could not have been cured. Indeed, since the communication was destroyed prior to disclosure to the parties, the parties were foreclosed from demonstrating that the communication was prejudicial or otherwise harmful. Since the parties were prevented from demonstrating harm, it followed that the substantial rights of the parties were affected. Therefore, the plaintiff was entitled to a new trial.

Although we can’t be certain that the judge’s seemingly banal communication to the jury indeed had a prejudicial effect, the plaintiff in this action and her injured child will, fortunately, get another opportunity to present their case to a jury of peers. As this case aptly demonstrates, trial is rife with opportunities for potential misconduct, and litigants are often well served having counsel experienced with the process and capable of handling issues when they do arise. The Atlanta personal injury and wrongful death attorneys at Christopher Simon Attorney at Law have represented injured Georgians at all stages of the litigation process, including trial, and they are prepared to provide you with assistance if you have a possible claim. Feel free to contact us to arrange a free case consultation if you’ve recently been injured and are curious about the legal options you have.

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