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Hard Truths, Long Days and Bitter Aftertastes. My Jury Story.

by | Jun 16, 2023

A personal tale of a wrongful-death suit and how AI might have prevented it.

In terms of the complexity of human interactions, technology and operations, nothing matches a hospital. Every day, round-the-clock healthcare professionals make literal life-and-death decisions, sometimes with limited information, about people they don’t know. Surgery, even “minor” surgery can be a risky proposition. The surgeon, anesthesiologist, and surgical and recovery nurses must perform flawlessly for the patient to do well. And sometimes despite the best efforts of everyone, things still go wrong.

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I know these things not because I work in a hospital, but because I sat on a jury in a wrongful-death suit brought against a mid-sized hospital in Atlanta in the late 1980s. Obviously, time has worn away many of the details. What remains and what follows is a distillation of an experience that lingered with me for months (and decades) afterward.

As a relatively consistent voter, I’ve been called for jury duty a handful of times in a few different places. I’ve never been chosen for a criminal jury, rejected (“excused”) on differing occasions by both prosecuting and defense attorneys. After each not-so-subtle rebuke of my ability to render a fair, impartial decision, I reminded myself that neither side wants impartiality so much as someone likely sees things their way.

However, my first jury notice for a civil trial, perhaps because of the smaller prospect pools, proved a winner, so to speak. Whatever the jurisdiction or trial type, the jurist experience is a very strange mix of subservience and power. From the admonition to empty pockets of all metal at the detectors just beyond lobby entranceways, prospective jurors are instructed exactly what to do, where to sit and when to leave. There’s the trip to check in at registration, badge assignment and directions to a large waiting room, often the place one sits for most of the day. And there’s invariably some kind of welcoming video, usually featuring one of the judges, thanking the attendees and reminding all of the solemn duty that awaits those chosen. And then comes the waiting, lots of waiting. Today, ready WiFi makes time fairly fly. Back in the day, musty game boards and stacks of National Geographics had to suffice.

Interspersed with the waiting area abrupt roll call announcements for randomly selected groups to go to a particular courtroom for empaneling. Usually, the judge states the kind of case at hand, introduces the prosecution/plaintiff and defense, and how the “Voir Dire” (Latin: “to speak the truth”) process will go.

One at a time each side asks a few queries each prospect, sometime in the jury box, sometimes seated in the gallery. Opponents have limitless excuses for cause, but a set number of excuses without cause. Questions usually suss out any direct knowledge of the participants. Occupation is a big one, lawyers are automatically ejected. Depending upon the case, doctors, engineers and scientists could be excused for cause. Why counselors exercise their excuses for no reason like the more than a few directed at this blog’s author is beyond yours truly. On the other hand, to get out of jury duty, to my knowledge, requires some form of documentation.

Like many city government structures, the Fulton County Courthouse is a cavernous building with an imposing stone exterior and no public parking. After Monday morning check-in and badging at one of a long line of plexiglass bays, I proceeded to a cavernous (of course) waiting area to join the day’s assemblage of prospects. I believe we were shuffled to one of the courtrooms to watch the welcoming video and then back to the waiting room. After a few empaneling groups were called, I heard my name and joined the crew and then marched to the court that would become my sort-of office for the next week.

The courtroom sported the requisite large dimensions, wood paneling and ornately framed portraits (I assume) of judges who previously presided here. Amidst the impressive setting, perched behind the large, raised desk sat the rather unimpressive figure of the judge, a dour man with a soft voice who read all instructions directly from a script without looking up.

The attorneys, on the other hand, made quite the impression. The plaintiff’s attorney, representing the widow suing a hospital for malpractice, was a large, round man with a majestic crown of prematurely gray hair whose gestures were as pronounced as his red tie. The attorney defending the hospital was an old-line Atlanta attorney whose name was on the door sporting pinstripe suits and smooth-as-silk presentation.

Rising where we sat, each prospect was questioned and given immediate thumbs up or down from attorneys. Their questions revealed the barest case circumstances. The trial would involve a mid-sized hospital and the death of someone from complications resulting from some sort of surgical procedure. I was asked about my occupation (at the time, clothing store manager), whether I had ever been treated at the hospital in question and if I was familiar with the surgery (I wasn’t). Rather than the familiar “excused,” both sides said “accept.” I was motioned to join the other accepted jurors in the jury box, and handed a badge proclaiming “JUROR.” And boom, there I was.

When the box was full of the requisite twelve jurors, we were escorted to the jury room by the bailiff. As lacking as the judge was in personality, his bailiff compensated in excess. Smiling and cracking wise throughout, he gave us the lowdown on how our time would go. His unfortunate capper was the traditional jurist perk of a free lunch wasn’t happening; that was one of our judge’s “things.” He departed and I could take in our assemblage, a fairly wide societal cross-section. Those I recall were a well-seasoned male airline pilot, a couple of middle-aged businessmen, a female student in her early 20s, a construction worker likely in his early 30s, a suburban homemaker/grandmother who brought in wonderful baked snacks each morning, a retired gentleman and a somewhat cross and contrarian elderly woman whose favorite line turned out to be “I’ve thought of something ya’ll haven’t.”

AI in jury selection

AI power is making its way into jury selection. More and more law firms are turning to platforms that automate selection support. Matching publicly available information from social media and government records against known behavior patterns, these systems make instant determinations on the favorability of hundred, even thousands of prospective jurors, well beyond the time and resources of any firm.

Soon thereafter, we made the first of many treks down the hallway and back to the jury box. Mr. Personality whispered whatever he whispered to and then turned proceedings over to the defense lawyer. He would get the last chance to address us, so his opening statement was first. His two points I remember, his dismissive mention of the patient’s charting record, which had a specific name I don’t recall. With a delivery dripping with sarcasm, he said “You’re going to learn a lot about something called…” My other recollection is the one name I remember from everyone involved, the melodic name of the nurse whose actions would be the case’s focus, whom I’ll simply call Lilly.

The plaintiff’s attorney introduced us to the deceased patient, a gentleman in his 50’s, husband, father, grandfather, the whole bit. He suffered from diabetes that was slowly cutting off circulation to his legs. He required surgery to promote better blood flow and save him from double amputations or at least delay them. While essential surgery, the procedure wasn’t life-saving. The man was otherwise in generally good shape. He checked in, underwent surgery, stabilized in the recovery room and was moved to a regular floor upstairs, to the care of nurse Lilly. Her actions, or lack of action, would be the trial’s focus.

The following side rant harkens back to my previous mention of a jurist’s strange cocktail of total subservience followed by a chaser of complete power.

A word about the low-grade humiliation of being called to the jury box and then dismissed for any legal argument between the lawyers, which were many, and then recalled, sometimes in quick succession. As a Zoom court junkie, I know that almost all courts allow sidebar discussions conducted to the far side of the judge’s bench, or sometimes the parties go in the judge’s chamber. Anytime there was an issue our guy couldn’t immediately decide, he sent us packing back to the jury room. The plaintiff’s attorney repeatedly tried to introduce the man’s autopsy, which was always contested by the defense, which always prompted the judge to wave his hands instructing counsels to stop arguing and then he’d wave us to the jury quarters, a rectangular room with long tables and wooden chairs much like to room depicted in the movie “Twelve Angry Men.” And there we’d sit, usually in awkward silence, afraid to engage in conversation which could be interrupted any moment by the bailiff’s booming, if friendly, voice. On one occasion we were dismissed, recalled and dutifully filed into the jury box and dismissed again almost immediately. Though there were no chuckles, I felt sure everyone in the gallery felt the same amusement I surely would’ve felt viewing our plight as unintended performers.

Over the next week, we heard from physician experts on both sides, all weighing in on a series of entries in the patient’s medical record, mentioned alternately with derision and great fanfare by opposing attorneys. The line entries recorded the man’s blood pressure, respiration and other vitals, handwritten by Lilly, certainly without thinking that a bunch of strangers would be eyeballing them over a year later.

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We heard from a family member of a patient sharing the semi-private room, who testified to irregularities by another nurse. However, records contradicted her testimony, including the nurse’s race, and were roundly discounted.

Though he was not part of the suit, nor was he accused of wrongdoing, we heard from the man’s surgeon, who sported a turquoise bollo tie and extended silver sideburns. The defense attorney would read his barely legible notes, written shortly after learning of his patient’s death, to end his closing argument. He was clearly less than thrilled to be there. He remained calm for the first few questions of the plaintiff’s attorney’s cross-examination, till exploding in a fury, I don’t remember what triggered him. The attorney was taken aback, but forged right ahead, informing him he asks anything out of line, the hospital’s attorney can object.

We heard from the anesthesiologist who was a milder, less-confrontational sort. We also heard from the charge nurse who testified that Lilly asked her to check on the gentleman in question, found him crashing when she got to his room and called “code blue,” alerting emergency response.

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Finally, we heard from Lilly herself. She was a slender woman in her mid-30s’ who, unlike every other medical witness, came in uniform. Wearing a grey dress, white stockings and shoes and a nurse’s headdress of the time and her hair pulled back in a professional bun, her chosen attire I would imagine was a careful calculation by the lawyers. Under the direct question of the defense attorney, she shared her backstory of growing up in a working-class family and earning a two-year associate’s nursing degree. She retold the events of her shift with the gentleman, caring for him and his post-surgical pain. She confirmed her notations on those faithful lines with her initials at the end of each when shown the page in the patient’s thick, brown medical record. The lawyer queried her on the meaning of the top and bottom blood-pressure numbers. “Systolic and diastolic” she answered, explaining the measures of highest and lowest pressure states.

Then, more courtroom theater ensued when the defense attorney called for a tray containing a blood-pressure cuff and stethoscope and handed the tray to Lilly who took its contents. At the attorney’s direction, she stood from the witness stand and joined him in the court’s well. Assistants brought over a table. The attorney then asked Lilly to take his vitals. He proceeded to remove his suit jacket, roll up one of his white sleeves and lay on the table. While Lilly wasn’t the most eloquent speaker on the stand, she clearly knew how to take vital signs, confidently announcing his readings. To the attorney’s query regarding the acceptability of his blood pressure, she answered in a slightly disapproving manner, “It’s a little high,” to the chuckles of court assemblage.

Lilly returned to the stand. She stated that despite his pain and agitation, his vital signs did not warrant calling the emergency code. The defense yielded to the plaintiff’s attorney. He peppered Lilly with accusatory questions about her attentiveness and ultimate failure to recognize her patient was crashing. She held her composure fairly well, finally pleading to the attorney that he had no idea what it was like to care for someone who was “pain’n” as she put it. At the end of her testimony, the plaintiff once again attempted to introduce the man’s autopsy leading to our very familiar objection and dismissal routine.

We were sent home Thursday evening after being notified that closing arguments would commence in the morning. I spent that night writing down my thoughts (in a notebook I wish I could find) about the week’s testimony. I was torn. Clearly, Lilly administered care to the best of her ability. Hired, conflicting experts opined her performance was or wasn’t up to standard. At the same time, it gnawed at me to the point hammered by the plaintiff that this late-middle-aged grandfather walked into this hospital healthy and was rolled out dead.

Friday arrived and so did the advertised closing arguments. The gallery, sparsely populated throughout the week, was fully behind the plaintiff’s table, filled with family and supporters. Behind the defense table sat a couple of young associates of the firm. The plaintiff would get the first and final presentations with the defense sandwiched in between. As I recall, both sides reached an hour in total. The contents of both recitations are lost to me, beyond the plaintiff’s lawyer’s display of photos of the deceased man with his family. I’m sure he highlighted all the hospital’s, and Lilly’s, failures causing the man’s demise, leaving sufficient time for his final closing.

Again, I don’t recall most of the specifics of the polished defense attorney. He started with the broad statement that anyone has the right to sue anyone in the U.S., balancing with the follow-up that he fully agrees with that right. He proceeded with a confident summation basically stating that bad things happen in hospitals, even when everyone does their job. He demonstrated that this malpractice action was far from his first. He effectively deflated any “gotcha” zingers the plaintiffs may pull in their final statement which would go unrefuted. He lifted the thick, light-brown folder, stating it contained a lot of numbers, and any “smoking gun” the opposing attorney may point to, surely has a solid refutation that would’ve been presented were his zinger brought out during the trial.

He talked about nurse Lilly and how she was like most of the front-line nurses across the country, a hardworking professional and the challenge of tending to post-surgical patients. He averred that she did her job and that the man’s vitals’ progression was within the acceptable range. He went on to talk about the intuition of a dedicated nurse who still sensed that something wasn’t quite right and went to get her supervisor. His well-prepared closing built to an impassioned crescendo when he pulled out the surgeon’s handwritten note made the evening of his patient’s death. While his delivery and summation were on point, his time-management skills were not. The judge called time on him midsentence, leaving him no choice but to silently nod and return to his seat.

In his final time allotment, the plaintiff’s attorney talked about the legal standard of a civil trial, that unlike the familiar “beyond a reasonable doubt” in a criminal trial, their burden with the lower “preponderance of the evidence, as he described it, a scale perfectly weighted by equal sandpiles that needed only be tilted in their direction by a single grain of sand. He talked about the worth of his client’s deceased husband’s life, suggesting it’s mighty high. And sure enough, he said there was indeed a smoking gun, pointing accusatorily to some never-before-mentioned line indication. He did wrap up his closing in time.

Finally, the judge read us the relevant legal standard. Basically, our charge was to determine whether Lilly, and therefore her hospital employer, demonstrated a reasonable level of care. He finished with some housekeeping details and sent us to our familiar room to deliberate and decide. Now our long table was filled with all items entered into evidence – the family photos, various charts, and the faithful thick, brown chart binder with a stickie on the page in question. The bailiff showed us the jury forms the foreman would complete, one for finding with the plaintiff or defense and one for damages if we found the hospital liable. He told us our first job would be to elect a foreman, and gave us a jovial wave goodbye. And there we were, 12 minions who suddenly are cut loose to make the ultimate decisions regarding the week’s proceedings.

Playing my microscopic version of Kingmaker, I nominated the airline captain to be foreman, guessing correctly that he’d feel obligated to take on the job that no one else seemed enthused about taking. I further sowed my oats, speaking first, detailing my notes, and stating my conflicted feelings toward Lilly and the devastating outcome of non-lifesaving surgery. Satisfied I had sufficiently infected the room with similar conflictions through my captivating distillations, I ceded the floor, releasing a blast of cold water right in my face as that no one else shared any doubt that Lilly did her job, and the hospital wasn’t liable.

After that, I did my best to play devil’s advocate against the unified tide, mainly to try and stretch out deliberations to an acceptable length to at least suggest we engaged in some serious discussions. Getting absolutely no traction on any point, I threw up my hands, palms forward, and announced my submission to the wisdom of the group. I certainly wasn’t going to play holdout on my flag of indecision. We took a vote. Unanimous. And that was that, until…Miss Contrarian suddenly invoked her mantra “I’ve thought of something ya’ll haven’t.” I don’t know what it was; I didn’t then. I do remember having a nice side conversation with one of the businessmen while the rest sat and let the women talk herself out of steam. And then we vote unanimously, again. Our pilot filled out the first indicating our unanimous siding with the defense, leaving the damages form blank and went out to alert the bailiff. I doubt the whole process took an hour.

A few minutes thereafter, we marched back into the courtroom. Only we found the justice factory wasn’t stopping for us, as our jury box was now occupied by orange-suited men in cuffs waiting to be charged. Thus, we stood awkwardly on the opposite side as the judge reviewed our verdict forms, and handed them to his clerk who promptly read them into the record. The plaintiff’s attorney asked that we be polled individually. And of course, the first name the clerk called was our favorite contrarian, asking if this was her verdict, who of course took forever to reply something like “well of course.”

I know that typically judges thank their jurors for their time, inconvenience and civic duty. Our guy, admittedly likely distracted by the folks sitting to his other side, informed us that we were now discharged from our jury duty and sent us back one last time to fetch our stuff. The bailiff followed us there and announced that the attorneys may want to speak to us and it’s entirely up to us. As coats and bags were retrieved, I felt the need to somehow transition from this sustained, intense, out-of-the-box experience and suggest we all go for lunch, including the bailiff, who declined, as did one of the businessmen. But the rest agreed, including Ms. Congeniality.

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So out the door and down the restricted hallway we trod. One by one out of the entrance to the floor lobby we went, where we found the distressing image of the assembled family and friends of the deceased, now experiencing a second mourning. The stunned, tearful widow was standing in the arms of her tearful son. The defense attorney was evidently there as well. The retired gentleman reported agreeing to engage a bit with him. Myself, on the other hand, felt quite inspired to turn left and high-tail it to the elevators.

We assembled outside and sauntered to some nearby restaurant though my appetite was somewhat dampened. There, we of course were seated at a single long table. It struck me fairly quickly that attempting to have some sort of meaningful decompression among a group of people you’d never otherwise associate, amid the noise and bustle of a downtown business restaurant, was a fool’s errand. Though our noble pilot/foreman did pick up the entire tab. I took a bit of depression in a to-go bag, waved adios and that was that.

So, what does any of this have to do with AI you ask? Let’s go back to that hospital room where Lilly is tending to her post-surgical patient, focused on controlling his pain. But now instead of having to manually transcribe his vital signs, an AI platform is dynamically monitoring and comparing them through machine learning against world databases. Had the gentleman, husband, father, or grandfather patient benefited from range alerts informed by big, wide, continually updated data pools, would he have survived? Who knows? I do propose his chances may have been significantly higher.

Comprehensive AI power offers forward-looking healthcare organizations benefits for every area, from patient care to HR onboarding and training, research, accreditation support and much more. Learn about InRule healthcare solutions here

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