Equal Justice Under the Law
You will note in the photo that the insignia above the courthouse says “equal justice under the law.” The very foundation of the justice system (the courts) is that judges are to be fair and impartial. In a recently reported medical malpractice case, the judge wrote derogatory comments about the plaintiff (injured patient), which the plaintiff’s attorney saw while at the judge’s bench.
Here is the story in this case. A woman goes in for a laparoscopic assisted vaginal hysterectomy. One of the known risks and complications of the procedure is damage to the ureter, which is a tube that carries urine from the kidney to the bladder. The patient’s ureter was injured and it was not diagnosed at the time of the hysterectomy. The patient had to go in and get a nephrostomy tube and urine bag placed, which diverts urine from the kidney to the bag outside of the body. The procedure was reversed after three months and the patient’s ureter was repaired.
At trial, the patient testified in detail about what it was like living with the nephrostomy tube. Eventually, the doctor’s attorney objected and the attorneys had a conference at the judge’s bench. During this conference, the patient’s attorney saw that the judge wrote on a post-it “bag lady with (s—ts). Barfer too”. The patient’s attorney asked the judge to declare a mistrial and he refused the request. The patient lost the case and appealed the matter to the Second District Court of Appeal.
The appellate court said that the patient was entitled to a new trial because of the judge’s conduct.
The very foundation of our system of justice mandates that judges be completely neutral and impartial. Litigants have the right to have their cases heard in a “[calm] and dispassionate environment before an impartial judge and have their rights adjudicated in a fair and just manner.” It can hardly be said that the trial judge’s comments and note in this case reflected a “calm and dispassionate environment.” Quite the contrary, the comments reflected a bias or prejudice against M.B. thereby rendering the entirety of the proceedings fundamentally unfair.
In this case, it doesn’t appear that the judge’s comments were seen by the jury; however, a party to a lawsuit has an absolute right to a fair and impartial judge. If the judge had a bad attitude about the patient, it certainly could have negatively impacted any evidentiary rulings. We are all people and sometimes other people rub us the wrong way; this is what probably happened in this case. All in all, because of the judge’s written notes, the outward appearance is that the patient did not get a fair shake in trial. This case clearly shows all the dynamics that go on in trial. What are your thoughts?