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Emergency spurs Weis case mistrial

2 sued doctors aid stricken juror

Charlie Weis passed Dr. Charles Ferguson, one of the doctors he sued, while leaving after a mistrial was declared yesterday. (WHDH-TV/ASSOCIATED PRESS/POOL)

The Charlie Weis medical malpractice trial came to an abrupt end in Suffolk Superior Court yesterday when the doctors accused of mishandling Weis's care rushed to the aid of a juror who collapsed in the jury box and the judge declared a mistrial.

As a surgeon from Brigham and Women's Hospital was testifying for the defense, discussing the effects of a blood thinner that the former Patriots coach was prescribed after his surgery, a man in the second row of jurors started gasping, raised his hand to get the attention of the bailiff, then slumped in his seat.

Panicked jurors asked him if he was all right.

He looked "pale and was just staring blankly," said Leigh Garino, a 24-year-old juror who was sitting in front of the ailing man and heard his labored breathing.

Four doctors, including the two whom Weis has accused of botching his gastric bypass surgery, ran to the man, laid him gently across two chairs, and lightly dabbed his face with water as courtroom spectators shouted for an ambulance and a lawyer frantically dialed 911.

The stricken juror, Anthony R. Perry, a 64-year-old retired MBTA conductor from Jamaica Plain, was sent to Massachusetts General Hospital, where his son, Tony Perry Jr. of Hyde Park, said he was in stable condition. It is unclear what happened to him in the courtroom, his son said.

"I think he's OK," he said late yesterday afternoon. "He sounds good over the phone, like the energy is there."

Weis's lawyer, Michael E. Mone, immediately filed a motion for a mistrial, saying that the jury's impartiality had been compromised after witnessing the doctors' actions. The judge agreed and granted the request.

"What's at stake here is the integrity of the process," Judge Charles Spurlock said.

"I talked to my client and told him he basically had no choice," Mone said outside the courtroom.

It was a surprising and dramatic end to a trial that has drawn national attention and high-profile witnesses, including Patriots quarterback Tom Brady, who testified last Friday about the wrenching effects of the bypass on his longtime mentor.

Weis, who is now head football coach at the University of Notre Dame, has charged that his doctors, Charles M. Ferguson and Richard Hodin, let him bleed internally for 30 hours after his June 2002 surgery at Mass. General.

The outcome, his suit alleged, was permanent nerve damage that has ended his ability to go for walks with his wife, stopped him from playing with his children, and kept him from running with his team at the start of each game.

Despite the dramatic outcome yesterday morning, it is not uncommon for doctors in medical malpractice trials to aid sick jurors, according to law specialists.

"Very few of them get the kind of coverage and exposure that this one did," said Andrew C. Meyer, whose firm, Lubin and Meyer, specializes in medical malpractice. Meyer said he had represented clients in two similar cases.

But if a jury observes treatment being provided to someone by the doctor on trial for malpractice, the plaintiff has to call for a mistrial and the judge has no choice but to grant it, Meyer said.

"It does create a prejudice," Meyer said. "You want a disimpassioned jury that doesn't judge anything outside of the evidence. Certainly, that kind of event is outside of the evidence."

Two other doctors, the surgeon on the stand and another physician who was scheduled to testify yesterday, also helped Perry.

"I saw them get up to help him and thought, 'That's the way to do it,' " said juror Burnham Bowden Jr., who was sitting next to Perry. Then the bailiffs quickly ushered Bowden and his fellow jurors out of the courtroom, along with spectators. Weis remained seated throughout the ordeal, staring at the jury box.

After a half-hour break, Spurlock called each of the jurors into the courtroom one by one and, as lawyers for both sides stood by, asked each if they could continue to serve impartially on this trial.

Mone said it quickly became clear that they could not.

"One juror said he couldn't be 100 percent sure if it would affect him, and another juror said it might affect him," he said. "How could they put out of their mind what happened in this courtroom? I can't put it out of my mind."

But Garino said she believes she could have remained objective.

"I thought I would still be able to deliver an impartial verdict," Garino said. "If anything, I would have been biased had they not helped."

The doctors' lawyer, William Dailey, opposed the motion for a mistrial , arguing that the doctors had responded as they should have.

"We thought the case was going very well for the doctors," he said. "We were confident. We thought the jury was listening intently. We were very optimistic that there was going to be a good result, and no negligence found."

Mone said he plans to seek another trial.

"Mr. Weis is committed for this case to be tried to a conclusion, as I'm sure are the doctors," he said.

Perry, described by fellow jurors as polite and quiet, was expected to remain overnight at Mass. General, where doctors planned to run more tests, his son said.

A father of three who retired about two months ago from the Massachusetts Bay Transportation Authority, Perry took his duties as a juror so seriously that he told no one about the case, not even his wife, said his son. "He just said, 'I can't talk about it,' " he said.

Garino said she was disappointed that she would be unable to help render a verdict.

"It is upsetting that we couldn't do our duty to help solve this case, but it's in someone else's hands now," she said. "I hope they are as serious about it as we were trying to be for the sake of the doctors and Mr. Weis."

Cramer can be reached at mcramer@globe.com; Reiss at mreiss@globe.com.

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