Butler v. HCA Health Svcs. of Kansas, Inc.

• Decision Date: 06 August 1999
• Docket Number: No. 77,600[1].,77,600[1].
• Citation: 27 Kan. App.2d 403,6 P.3d 871
• Parties: AMANDA BUTLER, a minor, by and through COMMERCE BANK, N.A., her Conservator, Appellant, v. HCA HEALTH SERVICES OF KANSAS, INC., a Kansas Corporation, d/b/a WESLEY MEDICAL CENTER; SCOTT D. DESJARLAIS, M.D.; and DAVID D. DUKE, M.D., Appellees.
• Court: Kansas Court of Appeals

27 Kan. App.2d 403

6 P.3d 871

AMANDA BUTLER, a minor, by and through COMMERCE BANK, N.A., her Conservator, Appellant, v. HCA HEALTH SERVICES OF KANSAS, INC., a Kansas Corporation, d/b/a WESLEY MEDICAL CENTER; SCOTT D. DESJARLAIS, M.D.; and DAVID D. DUKE, M.D., Appellees.

No. 77,600¹.

Court of Appeals of Kansas.

Opinion filed August 6, 1999.

Randall E. Fisher, of Law Offices of Randall E. Fisher, of Wichita, and Gerald Michaud, of Derby, for appellant.

Eldon L. Boisseau, Anne M. Hull, and Wm. Paul Bouda, of Turner & Boisseau, Chartered, of Wichita, for appellee Scott D. Desjarlais, M.D.

Christopher A. McElgunn and Gary M. Austerman, of Klenda, Mitchell, Austerman & Zuercher, of Wichita, for appellee David D. Duke, M.D.

Michael L. North, John H. Gibson, and Judd A. Liebau, of Boyer, Donaldson & Stewart, of Wichita, for appellee HCA Health Services of Kansas, Inc., a Kansas corporation, d/b/a Wesley Medical Center.

Before GERNON, P.J., PADDOCK, S.J., and DONALD R. NOLAND, District Judge, assigned.

GERNON, J.:

Amanda Butler, a minor, by and through her conservator, Commerce Bank, N.A., appeals from a jury verdict and various pretrial and post-trial rulings in favor of the defendants, HCA Health Services of Kansas, Inc., d/b/a Wesley Medical Center (Wesley); Scott D. Desjarlais, M.D.; and David D. Duke, M.D., in a medical malpractice case.

Amanda Butler (Butler) was born to Alesia and Michael Butler at Wesley in August 1991. During Alesia's labor and delivery, she was monitored primarily by Dr. Desjarlais, a first-year resident, and Dr. Duke, a third-year resident. These physicians contracted with the Wichita Center for Graduate Medical Education (WCGME), which administered the residency program. WCGME, which was organized by Wesley, other medical organizations, and the University of Kansas School of Medicine in Wichita, operates the obstetrics/gynecology residency program at Wesley. WCGME is not a party to this case.

Alesia Butler arrived at Wesley on the day of Butler's delivery at 12:25 a.m. Approximately 12 hours later, at 12:20 p.m., she was fully dilated and 100% effaced. At this point, she had reached the second stage of labor and was taken to the delivery room. At 2:30 p.m., Pitocin, a drug which stimulates or augments contractions, was administered on Dr. Duke's orders and continued until 3:50 p.m. At that time, Dr. Duke determined that a caesarean section was necessary to deliver Butler. At the time the c-section was performed, Butler's head was tightly engaged in her mother's pelvis, and the delivery team had difficulty removing her. Upon Dr. Duke's instructions, a nurse inserted her hand in Alesia's vagina to push the baby's head up out of the pelvis. After an additional incision, Butler was finally removed through her mother's abdomen. The process took about 2 to 3 minutes.

It was immediately apparent that Butler was having problems. She was blue in color and seemed to have a decreased movement in her left arm. She had an initial Apgar score of two, the next lowest score for a live birth. She also had bruising around her head.

Shortly after birth, Butler was transferred to the newborn intensive care nursery. She was having trouble breathing and had poor muscle tone. Since her birth, Butler has been diagnosed as having a severe form of cerebral palsy and is moderately retarded. She has little or no functional ambulation due to the fact that at least three of her limbs are impaired. She has also exhibited behavioral problems. Experts testified that Butler would never be capable of living independently.

Butler and her parents filed suit against Wesley, Dr. Desjarlais, and Dr. Duke in September 1993. The petition asserted claims on behalf of Butler and her parents for negligence, negligent supervision of the resident physicians, and violation of the Emergency Medical Treatment and Active Labor Act of 1986.

A pretrial conference was held in November 1994, and a pretrial order was entered thereafter. Subsequently, Commerce Bank, N.A., was appointed as conservator of Butler's estate and was substituted as the representative of Butler. Butler's parents also asked that their individual claims be dismissed. The motion to substitute and to dismiss the parents' claims was granted the day before the trial.

Also on the day before trial, motions in limine and other pretrial motions were heard. The trial consumed a total of 25 court days. After approximately 15 hours of jury deliberation, the jury returned the verdict form, stating that 10 jurors had agreed that no one was at fault in connection with Butler's condition.

A journal entry was filed reciting the jury's verdict, and Butler filed a motion to recall the jurors and a motion for new trial or for judgment n.o.v., raising a number of claims, including claims now asserted on appeal.

Hearings on the post-trial motions were held, and the district court struck an affidavit from Butler's attorney, Gerald Michaud, and denied Butler's motion alleging juror misconduct. All other issues contained in the post-trial motions were denied.

Butler filed a notice of appeal. Dr. Desjarlais also filed a notice of cross-appeal, challenging the trial court's denial of his motion for summary judgment. Dr. Desjarlais has failed to brief any issues on his cross-appeal and, therefore, the cross-appeal will be considered to have been abandoned. See Crawford v. Board of Johnson County Comm'rs, 13 Kan. App.2d 592, 594, 776 P.2d 832 (1989).

New Trial/Recall of Jurors

Butler's primary issue on appeal is whether the trial court erred in denying her motion for new trial and/or her motion to recall the jury based upon allegations of jury misconduct. The jury misconduct alleged by Butler included: (1) A juror brought a news story summarizing a medical journal article on fetal heart monitors to the jury room one day during the trial; (2) during deliberations, the jury discussed a settlement offer allegedly rejected by Butler; (3) some jurors expressed concerns or disagreements about the court's instructions; (4) during deliberations, the jury discussed government benefits available to Butler; (5) during deliberations, the jury discussed the possible effect of the verdict on the defendant physicians; (6) the jurors learned that one of the defendants' expert witnesses delivered the baby of a juror's wife during the trial; and (7) several jurors told Butler's counsel that the instructions were not adequate and the verdict was improper.

Whether to grant a new trial is a matter left to discretion of the trial court and will not be disturbed on appeal absent a showing of abuse of that discretion. Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 458, 856 P.2d 906 (1993). Abuse of discretion exists when the court's actions are arbitrary, fanciful, or unreasonable, or such that no reasonable person would take the view adopted by the district court. Farm Credit Bank of Wichita v. Zerr, 22 Kan. App. 2d 247, 255, 915 P.2d 137 (1996). Juror misconduct in civil and criminal cases is not grounds for reversal, new trial, or mistrial, unless it is shown to have substantially prejudiced a party's rights. The party claiming prejudice has the burden of proof. State v. Griffin, 262 Kan. 698, 704, 941 P.2d 941 (1997).

Butler contends that the court was required to find that the juror misconduct was harmless beyond a reasonable doubt. She relies on Saucedo v. Winger, 252 Kan. 718, 732, 850 P.2d 908 (1993). However, the Saucedo case involved juror misconduct of the most egregious sort. In that case, a juror relayed information from a family member who knew one of the witnesses, indicating that the witness lied; another juror suggested that the plaintiffs husband's uncle was a cocaine dealer and that the plaintiffs husband may have died of a cocaine overdose. The Kansas Supreme Court has not used the reasonable doubt standard in any case before or since Saucedo.

Here, Butler presented the affidavits of three jurors and of her attorney, Michaud. The trial court refused to consider the affidavit of Michaud. Absent extraordinary circumstances, affidavits of attorneys are not considered in determining whether juror misconduct has occurred. Counsel's affidavits usually contain mere hearsay, while the courts in these situations prefer affidavits from persons with personal knowledge of the facts. In addition, "[v]erbal comments to counsel by jurors following a trial are often made under some stress, may be easily misunderstood or subject to more than one interpretation." Walters v. Hitchcock, 237 Kan. 31, 36, 697 P.2d 847 (1985). The trial court's refusal to accept Michaud's affidavit is especially warranted in that his affidavit contains some allegations not confirmed in the jurors' affidavits.

The defendants contend that all or part of the jurors' various affidavits are inadmissible. K.S.A. 60-441 precludes consideration of evidence which shows "the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined." (Emphasis added.) K.S.A. 60-444(a) allows, however, evidence as to "conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict or the indictment, except as expressly limited by K.S.A. 60-441." (Emphasis added.) The line of demarcation between when such evidence is proper under K.S.A. 60-444(a) and inadmissible under K.S.A. 60-441, however, is not a bright line. Verren v. City of Pittsburg, 227 Kan. 259, 260-61, 607 P.2d 36 (1980).

In this case, the trial court had the benefit of affidavits from 7 of the 12 jurors. These affidavits were drafted by the attorneys involved in this case. As recently noted by the Supreme Court, juror affidavits filed in connection with motions for new trial "are seldom in the unprompted wording of the parties, but rather the products of...