Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Nassau County, N.Y., District Judge William J. O’Brien last week heard a medical malpractice case from a decidedly different point of view — as a juror. He was one of six selected to hear the matter of Jacoby v. Doe, No. 16082-2003, which pitted an elderly Franklin Square woman against the hospital that her attorney said failed to aggressively treat her after she suffered a stroke. The 12-day trial ended Friday with a defense verdict. “The biggest surprise,” O’Brien said, “is that they selected me.” He recalled one potential panelist groaning, “Boy, if he can’t get out of jury duty, none of us can!” Conventional wisdom, the judge said, holds that attorneys and other professionals are feared by most trial lawyers because of their potential to take over a case once the jury begins deliberations. In this instance, however, neither side’s lawyer, nor the judge hearing the case, said they saw such a risk. Supreme Court Justice Edward M. McCarty III, who heard the case, said he foresaw no adverse consequences and knew that O’Brien, whom he knows personally, would follow the jury instructions. To be sure, one of those instructions was that no one juror’s professional expertise can trump the judge’s marching orders. The jury responded, said O’Brien, because nobody on the panel deferred to him. “They had a definite idea about what the right verdict was,” he said. CASE BACKGROUND As the case unspooled, the judge said, the jurors learned that the plaintiff, Toby Jacoby, had suffered a stroke at home on a Sunday morning. Her husband, who had left the house between 8:30 a.m. and 9 a.m., was the last to see her before the onset of symptoms. Jacoby’s condition was discovered by a friend who realized that the plaintiff had suddenly become incoherent during a phone call. She was rushed to nearby Franklin General Hospital where a CT-scan of her brain was ordered just after 11:00. By the time doctors learned whether Jacoby’s stroke was caused by a ruptured blood vessel or a blood clot that might be receptive to an anti-clotting drug, the three-hour window for safely administering the drug had closed. She is now confined to a wheel chair. Jacoby’s husband sued, alleging that the hospital and its doctors departed from accepted good medical practice by failing to timely discern what type of stroke she had suffered and whether the anti-clotting drug was needed. At issue was at what time Jacoby first developed symptoms. Her husband had told doctors at the hospital that when he had seen her last, around 9 a.m., she was asymptomatic, according to their records. In court, however, he contradicted that statement, saying he could have last seen her as late as 9:15. In the end, O’Brien said, the jurors decided that even if the hospital did delay in taking the CT-scan, the window for administering the anti-clotting agent still would have closed before they knew if the drug was called for. Jacoby’s lawyer, Victoria Weinman, an associate in the law offices of Harry Katz in Fresh Meadows, said she had no compunction with putting O’Brien on her jury. Her thinking, she said, was “maybe he’s a little more savvy to defense tricks” than the average juror. “That maybe he’d see through the baloney.” For defense attorney Anthony Sola, a partner in Manhattan’s Martin Clearwater & Bell, the thought process was different. “From my standpoint as a defense lawyer on a medical malpractice case,” he said, “I want jurors who are intelligent and analytical.” Seeing no bias in the judge’s past experience with doctors and hospitals, Sola said, he called O’Brien, “an ideal juror.” The judge said he resisted the urge to listen to the case as though he were a judge. “It was easier to be a juror,” he said. “You don’t have to focus on the evidentiary issues.” Still, O’Brien said that he paid enough attention to say that he could not remember a moment where he was second-guessing Justice McCarty or thinking “I would have ruled differently.” Sitting in the jury box, he said, gave him a new appreciation for what jurors experience in his court. As a result, he said, he will now endeavor to do a better job explaining to them that even while they are sitting idle, discussions are being had and trial issues are being resolved.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.