Davis v. Wang, 19040

Decision Date04 December 1990
Docket NumberNo. 19040,19040
CourtWest Virginia Supreme Court
PartiesPatricia DAVIS, Administratrix of the Estate of Bryan M. Davis v. Dr. Hsinn-Hong WANG, Dr. William Neal, Dr. Brian Arthurs, West Virginia University Hospitals, Inc., and West Virginia Board of Regents.

Syllabus by the Court

1. "When individual voir dire reveals that a prospective juror feels prejudice against the defendant which the juror admits would make it difficult for him to be fair, and when the juror also expresses reluctance to serve on the jury, the defendant's motion to strike the juror from the panel for cause should ordinarily be granted." Syllabus point 1, State v. Bennett, 181 W.Va. 269, 382 S.E.2d 322 (1989).

2. A prospective juror who admits a prejudice to an issue central to the outcome of the case cannot negate the prejudice merely by stating they would follow the law as instructed by the court. A jury comprised of members who do not believe in a certain type of damages, yet reluctantly agree that they will follow law to the contrary, does not constitute an impartial jury as envisioned by this Court in State v. Matney, 176 W.Va. 667, 346 S.E.2d 818, 822 (1986).

Linda M. Bordas, David A. Jividen, James G. Bordas, Jr., Bordas & Bordas, Wheeling, for Patricia Davis.

Herbert G. Underwood, Steptoe & Johnson, Clarksburg, for Dr. William Neal, Dr. Brian Arthurs, and WV Bd. of Regents.

Don R. Sensabaugh, Jean Buckley, Kay, Casto & Chaney, Charleston, for WV University Hospitals, Inc.

BROTHERTON, Justice:

This case involves an appeal by Patricia Davis from the October 23, 1987, jury verdict from the Ohio County Circuit Court, in which the defendants, Drs. Neal and Arthurs, the West Virginia University Hospital, and the West Virginia Board of Regents, were found to be not negligent in the death of her son, Bryan Davis. 1

Bryan Davis was five months old when he was admitted to the Ohio Valley Medical Center on June 26, 1985, with a diagnosis of H-flu meningitis. After eleven days of treatment, Dr. Wang, Bryan's pediatrician, had the child transferred to the West Virginia University Medical Center (WVU) because the child's fever had not been resolved. Thus, on July 5, 1985, the child was admitted to WVU under the care of Dr. William Neal, the head of the Department of Pediatrics.

Upon admission, physicians made a differential diagnosis of H-flu meningitis and Kawasaki's disease. At that time, a second test for meningitis was performed, which was initially negative. A repeat test was weakly positive. Because of the positive meningitis test and the spinal fluid gram stain performed at the Ohio Valley Medical Center, combined with the child's other symptoms, Dr. Neal and Dr. Sikora, the Chief Pediatric Resident, made a diagnosis of partially treated meningitis. This diagnosis was confirmed by Dr. Melanie Fisher, an infectious disease expert who examined Bryan Davis at the request of the treating physicians. Bryan's condition gradually improved, until he was discharged from the hospital on July 16, 1985. He had a slight fever at the time of discharge.

Prior to his discharge, Bryan's grandmother, a nurse at a Moundsville hospital, discussed the child's condition with Dr. Ventosa, a pediatrician at the hospital where she worked. Upon hearing the child's symptoms and test results, Dr. Ventosa indicated a possible diagnosis of Kawasaki's disease. This diagnosis was made by Dr. Ventosa prior to the child's discharge from WVU Hospital. Two days after the discharge from WVU, Dr. Ventosa, at the request of the parents, made an appointment to see Bryan Davis in his office on August 9, 1985. At that time, Dr. Ventosa told Bryan's grandmother that he believed the child had Kawasaki's disease and that she should bring him in right away if he wasn't doing well, but otherwise to wait until he had received the hospital records. No treatment was prescribed by Dr. Ventosa. No records were received, despite Mrs. Davis' request that they be sent. On August 9, 1985, Dr. Ventosa examined Bryan in his office and confirmed his diagnosis of Kawasaki's disease. The appellees claim that Bryan was healthy and well at the examination, and noted that Dr. Ventosa did not prescribe any treatment. Dr. Ventosa ordered an echocardiogram for the next day. However, Bryan Davis died that night. An autopsy diagnosed Kawasaki's Disease.

On March 11, 1986, Patricia Davis filed suit in the Circuit Court of Ohio County against Dr. Wang and the appellees, Dr. Neal, Dr. Arthurs, the West Virginia University Hospitals, Inc., and the West Virginia Board of Regents. Prior to the trial, the plaintiffs settled with Dr. Wang and he was released from this and any other claims arising out of the treatment and death of Bryan Davis.

The appellants contend that Bryan's doctors at WVU misdiagnosed him, ignoring signs that they believed were diagnostic of Kawasaki's Disease. 2 On October 19, 1987, this action was tried before a six-person jury. At that time, the Davises presented evidence that Bryan exhibited several of the symptoms necessary to diagnose Kawasaki's Disease. 3

In contrast, the appellees contend that, while hospitalized at WVU Hospital, Bryan had certain signs which were consistent with Kawasaki's Disease, but not necessarily diagnostic of the disease. 4 Instead, they argue that the disease most strongly suggested by his condition was that of hemophilus influenza, a severe but common illness in infants. They argued that the child exhibited no evidence of any peeling of the fingers or toes, one of the basic symptoms, while he was hospitalized, and thus, they had no reason to suspect Kawasaki's Disease. In fact, they stated that Kawasaki's Disease had been considered, but ruled out.

At trial, the appellant moved to strike four jurors for cause. The court granted the appellant's motion for two jurors, but did not excuse the final two, Albers and Heyl. Juror Albers stated that she did not believe in damages for mental anguish, yet reluctantly stated that she would follow the law if so instructed. Juror Heyl testified that Steptoe & Johnson, the law firm which represented the defendants, had in the past done some work for his corporation, that his son-in-law was a doctor, and that his daughter and wife were nurses. He also testified that he had reservations about returning a damage award for pain and suffering. However, when asked if he would obey the law, he too stated that he would. Thus, the appellant used peremptory challenges to remove them from the jury.

On October 23, 1987, the jury returned a verdict for the defendants, in which none of the defendants were found to be negligent. Following the verdict, the Davises moved for a judgment notwithstanding the verdict, or, in the alternative, a new trial. On January 21, 1988, the Circuit Court of Ohio County denied that motion. This proceeding is the Davises' appeal from that final order.

On appeal, the appellants argue that the Circuit Court of Ohio County committed reversible error in not striking an allegedly biased juror for cause and because the court permitted the use of the Dye v. Corbin instruction. We agree and remand the case to the Ohio County Circuit Court for proceedings consistent with this opinion.

I.

West Virginia Code § 56-6-12 (1966) defines the necessary qualifications of a competent juror and the basis upon which a potential juror should be struck:

Either party in any action or suit may, and the court shall on motion of such party, examine on oath any person who is called as a juror therein, to know whether he is a qualified juror, or is related to either party, or has any interest in the cause, or is sensible of any bias or prejudice therein; and the party objecting to the juror may introduce any other competent evidence in support of the objection; and if it shall appear to the court that such person is not a qualified juror or does not stand indifferent in the cause, another shall be called and placed in his stead for the trial of that cause. And in every case, unless it be otherwise specially provided by law, the plaintiff and defendant may each challenge four jurors peremptorily.

In West Virginia, the test of a qualified juror is whether a juror can render a verdict based on the evidence, without bias or prejudice, according to the instructions of the court. Syl. pt. 1, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974).

This Court has consistently recognized that the appearance and bearing of the juror in answering questions is of great importance and thus, the decision of the trial court as to his eligibility should control. 5 State v. Toney, 98 W.Va. 236, 127 S.E. 35, 36-37 (1925). Voir dire is designed to permit the parties to the trial to be informed of all relevant matters that may bear upon the potential disqualification of a juror. Thus, voir dire is essential to the fair and intelligent exercise of the right to challenge either for cause or peremptorily. W.Va. Human Rights Commission v. Tenpin Lounge, Inc., 158 W.Va. 349, 211 S.E.2d 349, 353 (1975). See also State v. Ashcraft, 172 W.Va. 640, 309 S.E.2d 600 (1983). Moreover, voir dire must be meaningful in order for the parties to select a jury competent to judge and determine the facts without bias, prejudice, or partiality. Without a meaningful and effective voir dire, a fair trial is not possible. Tenpin Lounge, 158 W.Va. at 355-56, 211 S.E.2d at 353. See also State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978).

However, the discretion granted the trial court in striking jurors for cause must be balanced against our determination, after the fact, of whether the potential jurors were sufficiently biased so as to prevent a fair trial. This Court has concluded that "the mere statement of a prospective juror that he or she is not biased with respect to a particular cause may not be sufficient for the trial court to conclude that no such bias exists." 6 W.Va. Dept. of Highways v....

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