HOUSTON – A man suing a medical group and one of its physicians for allegedly causing injuries to his rectum during a colonoscopy was denied his attempt at a new trial in the Fourteenth Court of Appeals on July 30.
“Concluding that the trial court did not err by denying the motion for new trial, we affirm,” wrote Chief Justice Kem Frost. Justices Ken Wise and Meagan Hassan concurred.
Thomas A. Wichman sued Kelsey-Seybold Medical Group, PLLC (d/b/a Kelsey Seybold Clinic) and Ned Snyder, III, M.D. Wichman alleged that Dr. Snyder and Kelsey-Seybold punctured his rectum, leading to serious injuries during a colonoscopy.
Texas Fourteenth Court of Appeals Chief Justice Kem Thompson Frost
| txcourts.gov
The defendants argued that Wichman’s injuries were actually because of his pre-existing condition, diverticulosis. A juror whose father had the same condition told the other jurors during deliberation that Wichman’s experience was “going to happen no matter what,” according to the opinion.
Wichman asked for a new trial suggesting that the juror’s statements influenced the verdict against him. The trial court determined it did not when it denied his motion for a new trial, and the appeals court affirmed.
“Under binding precedent from both the Supreme Court of Texas and this court, the jurors’ discussion of improper matters during deliberations does not constitute the bringing to bear of an outside influence on a juror; thus, Rule 327(b) and Rule 606(b) prohibit a trial court from considering a juror’s testimony as to such discussions,” wrote Judge Frost.
Wichman’s argument that his due-process and equal-protection rights were infringed upon also fell short. The judges ruled that he forfeited these rights when he did not mention any complaint in the lower court.
During the voir dire of the jury trial, one of the jurors expressed that her father had a similar condition. During jury deliberations, a different juror told the bailiff that another member of the jury did not follow the instructions from the trial court and told the jury that her father had diverticulitis. The previous instructions asked if there was any other evidence to consider before deliberations.
Still, the lower court decided not to dismiss the juror in question. The jury later found, in a 10-2 verdict, that there was not enough evidence to prove Snyder was negligent. Wichman asked for a new trial, calling out the juror that shared her father’s medical history during deliberations.
The defendants opposed the motion and the lower court ultimately denied the new trial. The appeals court now affirms that motion.