The Missouri Supreme Court Tuesday upheld the lower’s court decision that a juror should not have been stricken in a medical malpractice suit.

The high court affirmed the judgment of Franklin County Circuit Court jury trial in front of Judge Gael D. Wood, which ruled in favor of Mercy Hospital East Communities.

According to court records, Marlin Thomas and Ma Sheryll Joy Thomas alleged that Mercy Hospital Washington and Mercy Hospital East Communities were negligent in connection with the cesarean-section delivery of their child, resulting in brain damage to the newborn. The case proceeded to trial on March 16, 2015, and the jury returned a verdict for Mercy March 26, 2015.

Following the decision of the circuit court, the plaintiffs claimed that the trial court abused its discretion by failing to strike for cause a prospective juror because she expressed a disqualifying bias in favor of defendants.

The Missouri Court of Appeals Eastern District reversed the circuit court decision in Sept. 2016 and remanded for a new trial, citing that the juror stated she would “start off slightly in favor” of Mercy because she has a sister who is a registered nurse at a different Mercy facility.

In a 6-0 decision by the high court, justices agreed that the prospective juror had no knowledge about the case or its material facts from which to form an opinion requiring her disqualification, and she later said she could follow the circuit court’s instructions.

Juror Statements

The Thomases’ attorney moved to strike the potential juror for cause, noting she said she would do her best but never said she could be fair and impartial, according to court records. The circuit court overruled the motion to strike, and the woman ultimately served on the jury. Following trial, the jury found in favor of Mercy, and the circuit court entered its judgment accordingly.

Court documents state the juror specifically stated she would not give defendants more credibility than plaintiffs. She also explained her slight bias arose not out of personal experience but rather on general opinions her sister expressed based on her experience as a nurse in the burn unit of a related, but different, Mercy hospital.

When asked, “Can you put that aside and assure the Court that you will do your level best currently to decide this case based on what you hear in this courtroom, not what your sister has told you, not anything about Mercy, just on the evidence from the box and the judge’s instructions?” the juror answered, “Yes. I’ve heard good and bad. I’ve heard both.”

The Thomases were represented during arguments by Bradley L. Bradshaw, an attorney in Springfield. Mercy was represented by Kenneth W. Bean of Sandberg Phoenix & von Gontard PC in St. Louis.

Circuit Court Trial

The attorneys for the defendant stated that a physician at Mercy was concerned about the lack of movement and ordered fetal monitoring and a biophysical profile. Ultimately, the decision was made to deliver the baby, a choice with which attorneys said the mother, Ma Sheryll Joy Thomas, agreed. Cervical ripening began with a plan put in place to induce birth using Pitocin, according to a 2015 report in the Missouri Lawyers Weekly.

However, the child began to show a deceleration of heart rate during the process.

The mother then agreed to a cesarean section.

The child displayed seizures after delivery and had clenching in the fist and jaw at birth. Mercy attorneys said that there was evidence of edema damage to brain tissue, according to Missouri Lawyers Weekly.

“The plaintiffs’ case was essentially that because of the lack of fetal movement and the abnormal test results that the physician should have recommended immediate cesarean delivery and that the attempt to induce labor followed by the deceleration was what caused the injury,” said Bobbie J. Moon of Sandberg Phoenix & von Gontard.

But Moon said the kind of damage indicated might take 24 hours to develop.

“Our position was that unfortunately whatever caused the baby to have absent movement and initiated this process had already injured the brain,” she said, “most likely an accident with the umbilical cord where it became significantly occluded for a period of time sufficient to cause brain injury but was relieved before it could cause a fetal demise.”

Moon said much of the testimony regarding proper standard of care centered on the literature which she said showed that an attempted vaginal delivery was appropriate if the patient wanted one.

“It was only in hindsight in my view that the plaintiffs’ experts were able to say, ‘Well, you should have done a C-section because you would have known that this baby would never tolerate labor and you couldn’t induce.’ ”