Morris By and Through Morris v. Thomson

• Decision Date: 15 May 1997
• Docket Number: No. 22202,22202
• Citation: 130 Idaho 138,937 P.2d 1212
• Parties: Jessie Anna MORRIS, a Minor By and Through Jackie MORRIS, her Mother and Natural Guardian, Plaintiff-Appellant, v. James THOMSON, M.D., individually, Defendant-Respondent. Boise, December 1996 Term
• Court: Idaho Supreme Court

Page 1212

937 P.2d 1212

130 Idaho 138

Jessie Anna MORRIS, a Minor By and Through Jackie MORRIS, her Mother and Natural Guardian, Plaintiff-Appellant, v. James THOMSON, M.D., individually, Defendant-Respondent.

No. 22202.

Supreme Court of Idaho,

Boise, December 1996 Term.

May 15, 1997.

Wilson & McColl, Boise, for plaintiff-appellant. Debrha J. Carnahan argued.

Quane, Smith, Howard and Hull, Boise, for defendant-respondent. Jeremiah A. Quane, argued.

TROUT, Chief Justice.

This is an appeal from a jury verdict and judgment for defendant Dr. James Thomson in a medical malpractice suit.

I. BACKGROUND

On July 4, 1988, Jessie Morris (Jessie) was born to Jackie Morris (Morris) at Walter Knox Memorial Hospital in Emmett, Idaho. Dr. James Thomson, a family practitioner in Emmett and Morris' treating physician during her pregnancy, delivered Jessie, who experienced birth asphyxia (oxygen deprivation immediately before or after birth). As a result, she suffers from severe mental retardation, cerebral palsy, vision impairment, microcephaly (small head), and paralysis.

II. PROCEDURAL HISTORY

On May 11, 1990, Jackie Morris, on behalf of her daughter, filed a medical malpractice suit against Dr. Thomson and Walter Knox Memorial Hospital. Morris and the hospital reached a settlement prior to trial. At trial, Morris alleged that Thomson did not meet the required standard of care by improperly using a fetal heart monitor, improperly interpreting the fetal heart monitor data, failing

to use a fetal scalp monitor, and failing to recognize signs of distress after birth and to begin immediate resuscitation efforts. The jury returned a verdict for Dr. Thomson on April 24, 1995. On May 24, 1995, Morris filed motions for a new trial and to alter or amend the judgment. On August 31, 1995, the district court denied these motions. Morris subsequently appealed to this Court several of the court's rulings made prior to and during the trial.

III. DISCUSSION

A. The district court's refusal to automatically dismiss for cause all potential jurors having a doctor-patient relationship with defendant Dr. Thomson.

At the beginning of jury selection, Morris sought to automatically excuse for cause all potential jurors who were patients of Dr. Thomson on the ground that a business relationship existed between them and the defendant. See I.R.C.P. 47(h)(3). The court denied this request, ruling that plaintiff would have to question each individual juror on this issue. Morris appeals this ruling.

Plaintiff urges this Court to adopt a per se rule in medical malpractice actions automatically disqualifying all prospective jurors with current doctor-patient relationships with the defendant. We decline to do so. The court in Poynter ex rel. Poynter v. Ratcliff, 874 F.2d 219 (4th Cir.1989), addressed the issue of whether to adopt such a rule. The court refused to do so on the ground that per se rules should be created only in exceptional situations where "circumstances, such as a [a juror's] financial interest in the trial's outcome, show a clear likelihood of prejudice." Id. at 222. The doctor-patient relationship, however, does not create a clear risk of prejudice. Id. Although the bond between a doctor and a particular patient may pose such a risk, the determination of whether the doctor-patient relationship affects a juror's impartiality should be made on an individual basis:

Although a particular patient or malpractice defendant might warrant, or require, excuse for cause in a given case, we do not think that either circumstance necessarily impairs a juror's partiality or prevents him from rendering a decision based solely on the evidence and the law. The decision whether to exclude [current patients] should be made in each instance on the particular facts involved and under the established principles governing excuse for cause.

Id. (footnote omitted).

This reasoning is persuasive, and we likewise refuse to create a per se rule automatically disqualifying such jurors. By requiring counsel to question individually each prospective juror regarding his or her relationship with defendant, counsel will be able to uncover any bias and to challenge such a juror for cause. As the case at bar demonstrates, the court will likely dismiss these jurors on the ground that they are biased. A per se rule would thus provide no protection for plaintiffs in medical malpractice cases that they do not already enjoy. In medical malpractice actions, then, the parties may challenge for cause current and/or former patients of the defendant doctor or remove them through use of peremptory challenges.

Plaintiff also argues that these jurors should have been excused pursuant to I.R.C.P. 47(h)(3) as being "united in business" with defendant. I.R.C.P. 47(h)(3) provides that one basis for a challenge for cause is "being ... united in business with either party." A doctor-patient relationship, however, does not fall within this provision. This Court has examined the phrase "united in business" found in an earlier (but identical) version of this rule. See Hall v. Chattin, 17 Idaho 664, 106 P. 1132 (1910). "Business" for purposes of that section constituted "commercial, industrial and professional enterprises and engagements into which men jointly enter." Id. at 668, 106 P. at 1133. We noted that the purpose behind this provision was to exclude from juries those individuals whose business or financial interests could be affected by the outcome of the litigation: "It was evidently not thought wise or in the interests of justice to have a man's business associate act as a juror in a case where his business Plaintiff also objected specifically to certain jurors included in the panel on the basis that they, or their family members, are or were patients of Dr. Thomson. The record indicates, however, that Morris failed to challenge for cause the majority of these jurors, and the court excused all of the jurors plaintiff challenged for cause on the basis of their relationship with defendant, with the exception of Juror Hill (which will be discussed below). These excused jurors, of course, present no issue on which Morris can appeal. With regard to the other jurors plaintiff failed to challenge, plaintiff waived all objections to them by passing them for cause. State v. Mitchell, 104 Idaho 493, 501, 660 P.2d 1336, 1344, cert. denied, 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308 (1983); State v. Bitz, 93 Idaho 239, 243, 460 P.2d 374, 378 (1969); State v. Yon, 115 Idaho 907, 909, 771 P.2d 925, 927 (Ct.App.1989). Plaintiff has thus failed to preserve this issue for appeal.

                moneyed, or other interests are at stake."  Id., 106 P. at 1133.   Clearly, a doctor-patient relationship does not implicate a juror's financial interests.  By participating in a verdict against his or her doctor in a medical malpractice action, a juror does not affect his or her financial or business interests.  The doctor-patient relationship thus does not create the sort of bias that the rule seeks to prevent, and the "united in business" provision does not apply.  The court thus correctly refused to automatically dismiss the jurors on this ground
                

B. The district court's refusal to dismiss for cause Mrs. Hill, a potential juror with a doctor-patient relationship with defendant Dr. Thomson.

The second prospective juror questioned, Mrs. Hill, was a former (and possibly current) patient of Dr. Thomson. ¹ Morris challenged Hill for cause. After further questioning by both the defense and the court, the court satisfied itself that Hill could remain impartial and denied plaintiff's motion to excuse her for cause. Morris subsequently passed Hill for cause but used a peremptory challenge to remove her. Morris appeals the trial court's denial of this challenge.

It is in the trial court's discretion to determine whether a juror can render a fair and impartial verdict. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989); Quincy v. Joint Sch. Dist. No. 41, Benewah County, 102 Idaho 764, 768, 640 P.2d 304, 308 (1981). On appeal, we review the trial court's selection of jurors for an abuse of discretion. Hedger, 115 Idaho at 600, 768 P.2d at 1333; Quincy, 102 Idaho at 768, 640 P.2d at 308. In ruling on a challenge for cause, the trial court must consider the facts and decide if the juror should be excused pursuant to I.R.C.P. 47(h), which sets forth the grounds for challenges for cause. Quincy, 102 Idaho at 768, 640 P.2d at 308.

The trial court in this case did not abuse its discretion in refusing to dismiss Hill for cause. In the two Idaho cases addressing this issue, the Court has ruled that a trial court does not abuse its discretion by refusing to excuse for cause jurors whose answers during voir dire initially give rise to challenges for cause but who later assure the court that they will be able to remain fair and impartial:

Although the voir dire of Mr. Pugh [the prospective juror] by plaintiff's counsel initially gave reason to challenge for cause, subsequent questioning by the court clarified the responses of Mr. Pugh so as to give the court ample basis for concluding that Mr. Pugh would serve as a fair and impartial juror. In view of these answers given by Mr. Pugh to the court's questions, it was clearly within the court's discretion to deny plaintiff's challenges for cause.

Quincy, 102 Idaho at 768, 640 P.2d at 308. See also Hedger, 115 Idaho at 600, 768 P.2d at 1333 (upholding trial court's decision, in trial of defendant on criminal charges including rape, refusing to excuse for cause prospective juror whose first husband had been convicted of rape, whose current husband had pled guilty to sexual abuse three years Such a situation exists in this case. Hill initially stated during voir dire that she believed that her relationship with Dr. Thomson could affect her ability to render a verdict fair to plaintiff. Such bias is a ground for a challenge for cause. See I.R.C.P. 47(h)(7). Further...