In a case decided by the Court of Special Appeals of Maryland (“Appellate Court”) on February 4, 2016 in an unreported opinion, the Maryland medical malpractice plaintiff’s appeal was unsuccessful because under Maryland law, it was incumbent upon the plaintiff to bring to the trial court’s attention the alleged discharge of a regular juror and her replacement by an alternate, as soon as practicable, and his failure to do so waived the issue on appeal.
The plaintiff alleged in his Maryland medical malpractice complaint that the defendants’ negligent failure to timely diagnose and then properly treat an infection to his right foot had led to a below-the-knee amputation of his right leg. At the beginning of the Maryland medical malpractice jury trial, the trial court announced that it would seat nine jurors—six regular jurors and three alternates. The trial court judge did not inform the selected jurors which of them were regular jurors and which of them were alternates, as requested by the parties’ attorneys.
At the conclusion of the trial, the trial judge excused the alternate jurors, which included Juror 119. Juror 119 was one of the first six jurors to be called and seated in the jury box. The plaintiff’s attorneys spoke with Juror 119 upon her leaving the courthouse after being released by the court. Despite their belief that Juror 119 was an actual juror who had been mistakenly released by the court and who did not participate in jury deliberations that resulted in a defense verdict, the plaintiff’s attorneys never advised the trial judge of their belief, despite four opportunities to do so before the jury returned its verdict.
Six days after the defense verdict, the plaintiff filed a motion for a new trial in which he asserted that Juror 119 was erroneously discharged as an alternate juror and in her place an alternate juror was improperly permitted to deliberate with the other five members of the jury. The trial judge denied the plaintiff’s motion for a new trial, after which the plaintiff filed an appeal.
The Appellate Court stated that in Maryland, even where an error may, in fact, be incurable, a timely objection is required to secure appellate review of that error, and the Appellate Court generally will not decide an issue that was not raised in or decided by the trial court. Rule 8-131(a). The reason for the rule requiring an objection to even an incurable error is so the sin may be avoided of a party sitting back and waiting to see what the verdict is going to be before deciding whether to play its trump card in an attempt to get two bites out of the apple (the plaintiff’s lawyers admitted to the Appellate Court that the plaintiff did not bring this matter to the trial court’s attention because he was waiting to see if the jury would render a verdict within a range that both parties could live with).
The Appellate Court also rejected the plaintiff’s argument that he preserved his claim of error by filing a timely motion for a new trial under Rule 2-533(a). The Appellate Court held that a timely motion for a new trial would not suffice to preserve an issue for appellate review when there was no objection at the time an objection should have been made.
Source John v. St. Joseph Medical Center, Inc., et al., No. 2071.
If you or a family member were harmed by medical negligence committed in Baltimore, in Maryland, or in another U.S. state, you should promptly find a Baltimore medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.
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