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Medical malpractice verdict reversed due to juror misconduct

Medical malpractice verdict reversed due to juror misconduct
Axelrod & Associates, P.A.

In Ethier v. Fairfield Memorial Hospital, decided May 27, 2020, the SC Supreme Court reversed a medical malpractice verdict based on juror misconduct.

The jury had awarded a total of $2,000,000 to the plaintiff and his wife for damages that included a painful surgery and ongoing disability after an ER doctor misdiagnosed an aneurysm as a spider bite, but then the court entered a verdict for the defense after the jury found the plaintiff was more than 50% liable…

The SC Supreme Court ordered a new trial based on evidence that one juror knew the doctor and nurses who were responsible for the misdiagnosis, lied to the court about whether she knew them, and personally vouched for the doctor and nurses to her fellow jurors.


The plaintiff went to the ER after experiencing severe pain in his leg. The ER doctor, Bibeau, concluded that the plaintiff had suffered a spider bite, despite there being no evidence of a spider having bitten him – if the doctor or nurses had simply taken his pulse in his foot, they would have known that he was suffering from an aneurysm and not a spider bite:

In April 2011, Philip Ethier went to the emergency room at Fairfield Memorial Hospital after he felt a sudden, excruciating pain jolt up his leg as he walked to a shed in his backyard…

Thereafter, Bibeau examined Ethier, diagnosing him with a probable spider bite-a “ridiculous” diagnosis according to the plaintiff’s expert at trial, especially since neither Ethier nor the nurse assistant mentioned that as a possible scenario and no one ever identified a bite mark.

When the plaintiff’s pain continued, he went to a different hospital where they immediately diagnosed the aneurysm and found multiple blood clots that had developed since the initial misdiagnosis.

The plaintiff was then transferred to another hospital where surgeons ultimately had to perform surgery that involved cutting him from his hips to his ankle to remove the blood clots:

Shortly thereafter, Ethier was transported by ambulance to a hospital in Charlotte, where vascular surgeons first attempted noninvasive measures to alleviate the blood clots caused by the vascular injury. After these measures failed, surgeons elected to perform invasive surgery, requiring them to cut an incision from his hip to above his ankle.

Damages and Comparative Negligence

The jury awarded a total of $2,000,000 in damages to the plaintiff and his wife for the pain that he suffered as a result of the surgery, his loss of employment caused by disability, and loss of consortium suffered by his wife:

Due to the severity of the surgery, Ethier suffered intense pain, and trial testimony indicated he is no longer as active as before. Further, while Ethier attempted to return to work as a nurse, the pain eventually prevented him from doing so. Additionally, his wife testified that his disability strained the close companionship they previously enjoyed in their marriage.

Although the jurors found that the defendants were responsible for $2,000,000 in damages, the plaintiff received nothing because the jurors also found that the plaintiff was more than 50% responsible for his injuries…

The jury found Bibeau negligent and awarded $1,250,000 in economic damages and $500,000 in non-economic damages to Philip Ethier. Additionally, the jury awarded $250,000 in damages to Jeanne Ethier for loss of consortium. However, because the jury apportioned only 30% of the fault to Bibeau and the remaining 70% to Philip Ethier, the trial court entered a defense verdict on both claims.

How could the plaintiff have been responsible for the misdiagnosis? And why did the jurors find that the plaintiff was responsible and not the doctor?


Ordinarily, that would be the end of the case. The plaintiff is liable for his own injuries, and therefore receives nothing.

Except, the jurors found comparative negligence based on the “testimony” of one of their fellow jurors who repeatedly vouched for the doctor and nurses before the jurors were permitted to deliberate and despite having told the court she did not know the doctor or nurses.

When Does Juror Misconduct Result in Reversal?

It is uncommon for the appellate courts to reverse a verdict based on juror misconduct – courts do not like to question jurors’ deliberations, and what happens in the jury room is semi-sacred with few exceptions.

In most cases, courts will not even permit post-trial testimony by jurors unless there is evidence of an outside influence on the jury deliberations:

Ordinarily, juror testimony concerning juror misconduct is not admissible unless the allegations of misconduct pertain to external influences.

Examples of an outside influence include someone attempting to bribe a juror or when a juror does their own, independent research outside of the courtroom and shares the information with the other jurors.

Another exception to the sanctity of deliberations, however, is when the juror misconduct “affects the fundamental fairness of the trial.” Premature deliberations, which are a direct violation of the court’s instructions to the jurors, can fall into this category:

However, a well-recognized exception exists where the misconduct affects the fundamental fairness of the trial. State v. Hunter, 320 S.C. 85, 88, 463 S.E.2d 314, 316 (1995) (“Normally, juror testimony involving internal misconduct is competent only when necessary to ensure due process, i.e. fundamental fairness.”). Premature deliberations fall within this exception. State v. Aldret, 333 S.C. 307, 312, 509 S.E.2d 811, 813 (1999) (“[W]e hold premature jury deliberations may affect ‘fundamental fairness’ of a trial such that the trial court may inquire into such allegations and may consider affidavits in support of such allegations.”).

In this case, the juror in question not only vouched for the doctor and nurses to her fellow jurors and lied to the court about whether she knew the doctor and nurses, but she repeatedly advocated for the doctor and nurses to her fellow jurors during the trialbefore deliberations began.

When a Juror Becomes a Witness for the Doctor

A “mole” on the jury is every attorney’s worst fear at trial, and this case is the perfect example of how a “mole” on a jury can profoundly affect a plaintiff’s (or defendant’s) life.

The juror knew the doctor and nurses and had worked with them in the past. She lied to the court and the attorneys about whether she knew them (if she had disclosed the truth, she probably would not have been selected as a juror). She then proceeded to advocate for the defendants, telling fellow jurors that:

  • She had worked with the doctor and nurses in the past;
  • That they “were very careful and thorough, and if they said they did something, they did it;” and
  • The doctor and nurses were skilled, proficient, and truthful.

This information was critical because the failure to take a pulse in the plaintiff’s foot, something any doctor should have known to do, was the cause of the misdiagnosis. Because there was no evidence that they took the pulse other than their own testimony, the trial turned on whether the jurors believed the doctor and nurses were credible and competent…

At least one of the jurors was clear that the mole’s influence affected her vote and helped to persuade the jurors to find comparative negligence – resulting in no recovery for the plaintiff:

…nine testified they specifically recalled Killian informing them she had worked with Bibeau and the nurses. Four jurors said Killian vouched for the skill, proficiency, and truthfulness of all three during jury breaks. Carmichael testified that Killian’s statements affected her vote, as she initially believed Bibeau was more negligent.

Four jurors testified Killian vouched for the skill of all three by stating they were “good, careful, or thorough,” and if Bibeau did not take foot pulses, then “the nurse” did. Further, four jurors noted Killian vouched for the truthfulness and credibility of all three, asserting Killian informed the jury during breaks that if they “said they did something, they did it.”

Medical malpractice attorneys are already fighting an uphill battle, with medical providers, courts, and the legislature doing everything they can to prevent patients from recovering full and fair compensation – or anything at all, in many cases – for damage caused by careless doctors.

Thankfully, in this case, the mole’s fellow jurors came forward and acknowledged what happened, which will give the plaintiff another opportunity to prove his case to a – hopefully – fair and unbiased jury.


If you’ve been injured by a doctor or hospital’s negligence, we are prepared to fight this uphill battle for you. Your Myrtle Beach personal injury lawyer will gather the evidence and help you to retain the right experts to establish liability and damages in your lawsuit.

Schedule a free consultation with an experienced Myrtle Beach Medical Malpractice Lawyer on the Axelrod team. Call us at 843-916-9300 or fill out our contact form today.

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