New trial ordered in $1.9 million city malpractice case

The Baltimore Sun

Maryland's Court of Special Appeals ordered a new trial yesterday in the case of a woman who won a multimillion-dollar malpractice judgment against a doctor who she said misdiagnosed her terminal cancer.

The three-judge appellate panel found that a Baltimore Circuit Court judge had improperly replaced two members of the six-person jury with alternate jurors in the midst of the jury's deliberations.

"We understand the trial court's interest in averting a mistrial due to a hung jury after a long and complex trial," wrote Court of Special Appeals Judge Deborah S. Eyler. "Any remedy to the problem, however, must comport with the Maryland Rules. ... Unless or until the Rules are changed by amendment of the legislature, ... alternate jurors may not participate in jury deliberations in any capacity, including by substitution."

After an eight-day trial in November 2005, a city jury awarded $4.4 million to Joyce Grimstead, 50, of Gwynn Oak, after finding that Dr. McNeal Brockington had misdiagnosed her with irritable bowel syndrome. Another doctor subsequently linked the back pain she had for three years to what became a large cancerous tumor, according to the lawsuit.

The $4.4 million judgment was subsequently cut by more than half by a Baltimore judge, to $1.9 million, after the applications of the state's malpractice caps.

But the doctor's lawyer, Ronald U. Shaw, appealed the verdict, arguing that Circuit Judge Thomas E. Noel had erred in his handling of the jury during its deliberations.

The judge had permitted two alternate jurors to sit on a side sofa in the jury room during deliberations -- instructing them not to interact with the regular jurors, according to the Court of Special Appeals opinion. The jury initially reported being deadlocked.

Later during the deliberations, two of the jurors brought medical notes seeking to be dismissed, and they were replaced by the judge with the two alternate jurors who had been sitting in the room.

"For more than 10 hours over the course of two days (with a three-day holiday weekend in the middle), the jury deliberated without reaching a verdict. Twice during that period the foreperson informed the judge that the jurors were deadlocked three to three," Eyler wrote. "Three hours and 37 minutes after the substitution of the two alternates, the jury reached a verdict.

"The inference is strong, from the timing of events, that the changes in the composition of the jury mid-deliberations caused a change in the outcome of the case, to Brockington's prejudice," Eyler concluded.

The appeal was similar to one by Baltimore barber Dontee Stokes in 2004 over his conviction for a handgun charge in the 2002 shooting of a priest. In that case, the judge had allowed four alternate jurors to deliberate with the rest of the 12-member panel. Stokes subsequently pleaded guilty to handgun violations and was sentenced to time served.

Maryland's Court of Appeals, the state's highest court, has previously considered and rejected a rule change permitting the substitution of an alternate juror in the midst of deliberations, according to yesterday's opinion.

Shaw said he expects to retry the case. The attorney for Grimstead, Gary A. Wais, did not respond to a phone message yesterday.

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