Methods to preserve rights when things go wrong at trial
A mistrial in medical malpractice litigation can be declared in various situations. A mistrial of course is different than a new trial but the two often go hand in hand. Since this article is not meant to be a legal review suffice it to say that a mistrial is declared at the discretion of the trial court where something prejudicial is done before the jury by one side or even both sides. This can be a violation of an Order in Limine (a pre-trial order prohibitng certain comments before the jury) or it can be as a result of such plain error/conduct by an attorney or litigant that there results an effect on the jury likely to sway its opinion not on the merits but on prejudice or passion.
A motion for a mistrial must usually be made by one party prior to the rendering of a verdict if that is possible. The idea here is to not allow a party to see if he can win the verdict and then ask for another shot if he doesn't. Sometimes however a mistrial may be declared on a motion brought post verdict. It is also proper for the Court on its own motion to move for and order a mistrial. In the vast majority of cases the party asking for a mistrial will also ask for a new trial. It is important to remember that the two are different motions and different remedies. It is not unusual for the party who caused the fatal error to be ordered to pay for the new trial in all respects. One should therefore be very careful in his conduct or tactics in court because in a medical malpractice matter the expert fees and other costs for the aggrieved party can easily be in the scale of $100,000.00.
Today, I discuss a less common issue at trial which can result in a mistrial. There have been a number of cases across the Country where it is not uncommon that a lawyer trying a medical malpractice case is also trained in or even licensed in some medical field. It is also not uncommon that the litigant defendant in a medical malpractice trial is a doctor who is obviously sitting at the defense table with counsel. What happens if and when a juror suffers a sudden medical condition right as the trial is proceeding? Of course the proper thing to do is to stop the trial and call 911. But what happens, and is it proper, if the attorney-medical practitioner and/or the defendant doctor rush to the aid of the juror? What happens if this even happens in the jury room ex-parte?
Courts in other States from Illinois and Federal Courts have dealt with this issue and the unanimous opinion of every court has been that a lawyer shouldn't be disciplined for misconduct if the lawyer renders first aid in recognition of the lawyer's duty under the laws of the medical profession as well as under Human priciples of common sense. But at the same time it would also not be fair to the opossing side to have them possibly suffer a loss at trial because of this. In other words, the courts held when something so sudden, drastic and unusual occurs right before the jury which involves the medical skills of the very doctor being accused of medical malpractice that it is too much of a stretch to try and conclude through any form of legal sophistry that the jury can't somehow be effected by the show. These principles are laid out in an Illinois Supreme Court case, Campbell vs. Fox, 113 Ill.2d 354, 498 N.E.2d 1145 (1986). The Illinois Supreme Court held in line with the other jurisdictions that the effect of any of the foregoing on the jury is so prejudicial that prejudice is presumed and need not be proven in support of a timely motion for mistrial and new trial.
The Supreme Court reasoned that it is understandable why a person would help even where the legal rules of conduct forbid it. But it is one thing to understand and not punish the lawyer or client but it is quite another to hold that the other party, who looks bad for having followed the rules of court and not running into the jury room ex-parte or making contact with a juror, where the jury doesn't even know about those rules, should have to pay the price for those actions. The only method to fairly resolve the dilemma is to say that a litigant or his attorney can render first aid in violation of legal rules of court but that the party following the rules shouldn't be penalized for looking bad while the rule breaking party looks like a hero.
An aggrieved party knows to immediately object to the assistance and file a motion for a mistrial and new trial before a verdict is rendered. The noble party who assisted the juror should pay for the new trial because after all is said and done that is the party who made the conscious decision to do what it did. It may sound cruel but no one yet has found a more logical resolution to the dilemma. This result is not unlike any other situation in law where the law under certain circumstances will allow a person to break the rules under the doctrine of necessity. Such a doctrine would apply if a bystander, for example, was shot at and broke through a door window to hide inside a building. The person will be spared prosecution for tresspass and criminal damage to property under the doctrine but will still be responsible for pating for a new window. In court, the noble party gets to offer first aid but that party pays for the damages he causes by his acts. It certainly would not be fair to charge the party who did nothing and who followed the rules of court to have to once again pay for another trial. Rather the acting party gets a free pass on breaking the law but is on the hook civillay for all of the costs and fees occasioned by his conduct and that includes given the law abiding party another chance at a fair trial. I short, the aggrieved party is entitled to his day in court but a show like this isn't one of them.