Duncan v. West Wichita Family Physicians
Decision Date | 08 January 2010 |
Docket Number | No. 101,040.,101,040. |
Citation | 221 P.3d 630 |
Parties | Erin Renee DUNCAN, as Administratrix of the Estate of James Jeffery Duncan, Deceased; Erin Renee Duncan, an Heir at Law of James Jeffery Duncan, Deceased; and Morgan Duncan, Hannah Duncan, Michael Duncan, Joseph Duncan, and David Duncan, Minor Heirs at Law of James Jeffery Duncan, Deceased, by and through their mother and Natural Guardian Erin Renee Duncan, Appellees, v. WEST WICHITA FAMILY PHYSICIANS, P.A., Defendant, and Robyn Hartvickson, M.D., a/k/a Robyn Harris, M.D., Appellant. |
Court | Kansas Court of Appeals |
Steven C. Day and Chris S. Cole, of Woodard, Hernandez, Roth & Day, LLC, of Wichita, for appellant.
J. Darin Hayes, Mark B. Hutton, and Anne M. Hull, of Hutton & Hutton Law Firm, LLC, of Wichita, for appellees.
Before GREENE, P.J., MALONE, J., and KNUDSON, S.J.
Dr. Robyn Hartvickson, a/k/a Robyn Harris, M.D., appeals a verdict against her in a medical malpractice action, principally arguing that the district court erred in giving the jury a so-called "hammer instruction" after a deadlock was perceived, and in denying her motion for a new trial based upon both circumstantial and direct evidence of an apparent compromise verdict. She also claims other errors were committed during the trial, but we do not reach these issues because we agree that her motion for new trial based upon jury misconduct should have been granted. We reverse the district court and remand for a new trial.
The widow and heirs of James Jeffery Duncan (Duncan) brought this medical malpractice action against Hartvickson after Duncan died from a large pulmonary embolism. The essential claim was that Hartvickson negligently diagnosed Duncan with pneumonia and failed to note and treat the embolism when Duncan presented himself to her for treatment on the day prior to his death.
At trial, plaintiffs' experts supported a departure from the standard of care in failing to explore the possibility of pulmonary embolism based on Duncan's symptoms. Hartvickson and her experts asserted that she met the standard of care, suggesting that the embolism was very recent in its formation and likely not evident when Hartvickson examined Duncan, thus verifying her diagnosis of pneumonia. The parties agree that liability of Hartvickson was hotly contested.
After approximately 2 and 1/2 days of deliberations, the jury asked for the court's direction because its "last three votes [had] not changed" and there was no "majority either way." Over Hartvickson's objection, the trial court then gave the jury what is commonly known as the deadlocked jury instruction under PIK Civ.3d 181.20 and dismissed the jury for the evening. The following morning, the jury returned its verdict finding Hartvickson liable and awarding economic damages only totaling $982,143. Despite plaintiffs' extensive evidence of noneconomic loss, the jury awarded no such damages in its verdict.
After one of the jurors later contacted Hartvickson's counsel and suggested that the jury had reached a compromise verdict, Hartvickson timely filed a motion for new trial based on jury misconduct or, alternatively, for a recall of the jury. Following an affidavit and live testimony from the single juror only, the trial court denied Hartvickson's motion. Hartvickson appeals.
With regard to Hartvickson's claim of error based on the trial court's giving of the deadlocked jury instruction, we review the instructions to determine whether they are substantially correct statements of law and whether the jury could reasonably have been misled by them. Hawkinson v. Bennett, 265 Kan. 564, 577-78, 962 P.2d 445 (1998). Even if an isolated instruction is erroneous in some way, the instructions are not reversible error if they properly and fairly state the law as applied to the facts when considered as a whole. State v. McKissack, 283 Kan. 721, 732, 156 P.3d 1249 (2007).
With regard to Hartvickson's claim of jury misconduct, it is within the discretion of the trial court to grant or deny a new trial under K.S.A. 60-259(a), and such decision will not be disturbed on appeal except upon a showing of abuse of that discretion. City of Mission Hills v. Sexton, 284 Kan. 414, 421, 160 P.3d 812 (2007). A trial court abuses its discretion when it denies a motion for a new trial based on juror misconduct if the defendant can show that (1) an act of the jury constituted misconduct and (2) the misconduct substantially prejudiced the defendant's right to a fair trial. State v. Mathis, 281 Kan. 99, 103-04, 130 P.3d 14 (2006).
After deliberating for more than 2 days, the jury sent a note the trial court asking for directions. The note stated:
The court then consulted with counsel and suggested there were several options for response to the jury note, including to "bring them in, read them the hammer instruction, or else known as [PIK Civ.3d 181.20], the deadlocked jury instruction and send them back to continue to deliberate." This instruction, also commonly referred to as an Allen-type instruction, has taken on this name due to its first being discussed in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Plaintiffs asked that the instruction be given, but Hartvickson objected noting that the Supreme Court "has recognized that it can cause a jury to make a decision on an improper basis, feeling undue pressure from the court." Notwithstanding this objection, the court decided to give the supplemental instruction, apparently based on the then-current version of the instruction, PIK Civ.3d 181.20 ( ).
The instruction, as given to the jury, stated:
An instruction of this nature from the criminal context, specifically PIK Crim.3d 68.12, has been heavily criticized by our appellate courts, especially when given after the jury announces a deadlock. In State v. Boyd, 206 Kan. 597, 600-01, 481 P.2d 1015 (1971), cert. denied 405 U.S. 927, 92 S.Ct. 977, 30 L.Ed.2d 800 (1972), our Supreme Court clearly warned against giving this instruction after a report of jury deadlock:
This warning is essentially reiterated in the civil context within both the Notes on Use and the Comment to PIK Civ. 4th 181.20 (amended 2008), where the following admonition is provided:
Indeed, more recently our appellate courts have continued to criticize the instruction, often focusing on aspects thereof that are particularly misleading, technically incorrect, or inconsistent with other instructions. For example, in State v. Scott-Herring, 284 Kan. 172, 181, 159 P.3d 1028 (2007), the Supreme Court once again criticized the instruction, in particular the objectionable portion that was included here:
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