Edley v. O'Brien
| Decision Date | 14 February 1996 |
| Docket Number | No. 20067,20067 |
| Citation | 918 S.W.2d 898 |
| Parties | Jean EDLEY, Alice Forrester and Annalee Grady, Plaintiffs-Appellants, v. Robert Patrick O'BRIEN, M.D., Jerald Chaffin, M.D., and Steve Barker, C.R.N.A., Defendants-Respondents. |
| Court | Missouri Court of Appeals |
David W. Ransin, Springfield, for appellants.
Gail L. Fredrick, David C. Vaughn, III, Fredrick, Rogers & Vaughn, P.C., Springfield, for respondent O'Brien.
Bruce E. Hunt, Jeffrey S. Monroe, Burkart & Hunt, P.C., Springfield, for respondent Chaffin.
James W. Newberry, Schroff, Glass & Newberry, P.C., Springfield, for respondent Barker.
Jean M. Edley, Annalee Grady and Alice Forrester (collectively referred to as plaintiffs), children of Daisy Keltner, deceased, appeal a judgment entered in favor of Robert Patrick O'Brien, M.D., Jerald D. Chaffin, M.D., and Steve Barker, C.R.N.A. (collectively referred to as defendants) in an action seeking recovery for the wrongful death of plaintiffs' mother. 1 Plaintiffs contend the trial court committed error by failing to grant challenges for cause they directed to prospective jurors, failing to inquire or take remedial measures when allegations of juror misconduct were reported during trial, and in refusing to allow plaintiffs to present certain deposition testimony as rebuttal evidence. This court affirms.
On January 17, 1990, Daisy Keltner came to the emergency room of Skaggs Hospital in Branson, Missouri, complaining that she was having difficulty standing. She explained that she previously had a total knee replacement on the left side. The surgery had been performed eight years earlier. Mrs. Keltner believed the difficulty she was experiencing was attributable to the knee. She told the examining physician, Dr. Chaffin, that she had not been satisfied with her previous surgery.
Dr. Chaffin admitted Mrs. Keltner to the hospital. She was seen by an orthopedic surgeon, Dr. O'Brien, the next morning. Dr. O'Brien's diagnosis was that Mrs. Keltner's knee prosthesis was worn-out and dislocated. He recommended replacing the prosthesis. Mrs. Keltner agreed. Her surgery was scheduled for the next afternoon, January 19. Mrs. Keltner's surgery was to begin about 5:00 p.m., after other surgery Dr. O'Brien was scheduled to perform.
Mrs. Keltner's blood pressure was hypertensive after admission to the hospital. It became labile, going up and down. About 4:00 p.m. the afternoon of January 19, a nurse notified Dr. O'Brien of the status of Mrs. Keltner's blood pressure. Dr. O'Brien was involved in a busy surgery schedule when he received the information. He asked Dr. Chaffin to see Mrs. Keltner.
Dr. Chaffin examined Mrs. Keltner and ordered medication for her elevated blood pressure. After receiving the medication, Mrs. Keltner's blood pressure dropped only a little. Dr. Chaffin believed the elevated blood pressure was secondary to the impending surgery; that it was the result of the patient's anxiety and fear of surgery.
Dr. Chaffin communicated with Dr. O'Brien. Dr. Chaffin's assessment was that the patient's condition had been sufficiently controlled with medication; that there was no reason to postpone the scheduled surgery. Dr. O'Brien agreed. He did not believe the blood pressure presented an unreasonable risk.
Mrs. Keltner's surgery was delayed until about 7:30 p.m. because of Dr. O'Brien's other surgeries. Steve Barker, a Certified Registered Nurse Anesthetist, attended to Mrs. Keltner's anesthesia needs during surgery. He continuously monitored her blood pressure.
Mrs. Keltner was administered a spinal anesthetic that rendered her lower extremities without feeling but did not affect her central nervous system. She was awake and capable of talking and communicating throughout the surgery. The surgery was completed at approximately 10:10 p.m. Mrs. Keltner was returned to a recovery room. Her condition was stable. She was checked at approximately 11:30 p.m. There was no indication of neurological defect or stroke at that time. At 12:00 a.m. Mrs. Keltner appeared neurologically intact. She was alert, oriented and normal.
At 1:00 a.m. a nurse observed that Mrs. Keltner's speech was slurred and inappropriate. She was experiencing left-sided numbness and weakness. It was later determined that she suffered an ischemic stroke on the right side of her brain.
Mrs. Keltner was eventually transferred to a hospital in Springfield where she was placed under the care of another physician, Dr. Randall Halley. Dr. Halley managed Mrs. Keltner's medical care until she died September 21, 1990, some eight months after her surgery.
Plaintiffs contended defendants were negligent in proceeding with Mrs. Keltner's elective, non-emergency surgery while she was suffering from labile hypertension. They contended defendants were negligent in failing to recommend or require adequate blood pressure control before beginning surgery that allowing Mrs. Keltner's blood pressure to drop too fast and remain too low for too long caused the stroke that ultimately led to her death.
This case was tried before a jury. The jury returned a verdict in favor of defendants. Issues on appeal are directed to occurrences during jury selection, events during the course of trial relative to certain jurors' conduct and refusal to permit parts of a deposition taken by defendants to be read to the jury during plaintiffs' rebuttal. Facts relative to procedural issues will be stated in the parts of the opinion where those issues are discussed.
Forty prospective jurors participated in voir dire. Point I contends the trial court erred in denying seven of plaintiffs' challenges for cause. One of the challenged jurors, No. 39, was not included among the panel of eighteen prospective jurors or the panel of three prospective alternate jurors from whom the parties made peremptory strikes. See §§ 494.480.1 and 494.485, RSMo 1994. Of the six remaining prospective jurors who plaintiffs unsuccessfully challenged for cause, two, Nos. 10 and 24, served on the jury that tried the case.
Plaintiffs exercised peremptory challenges to exclude three persons they had unsuccessfully challenged for cause, Nos. 11, 18 and 31, from the panel of prospective regular jurors. They peremptorily challenged juror No. 33, who they also had unsuccessfully challenged for cause, in order to remove her from the panel of prospective alternate jurors.
Plaintiffs contend that the trial court erroneously denied their challenges for cause; that this denied them a full panel of qualified jurors from which to make peremptory challenges. They argue this was reversible error.
This matter was addressed by the western district of this court in Rodgers v. Jackson Co. Orthopedics, Inc., 904 S.W.2d 385 (Mo.App.1995). The court held:
[T]he right to exercise peremptory challenges from a full panel of qualified jurors is not a constitutional or a common law right; it is solely statutory in origin, and the Missouri statutes historically have limited that right to criminal cases only. A civil litigant does not have a right to a new trial if the trial judge requires him or her to use a peremptory challenge to remove a juror who should have been removed for cause.
The western district added, "Over the years a few Missouri courts, in dicta, have erroneously assumed that civil litigants have a similar statutory right to make their peremptory strikes from a venire of qualified jurors." Id. at 390 (emphasis in original), citing, as examples, two eastern district cases, Holtgrave v. Hoffman, 716 S.W.2d 332, 335 (Mo.App.1986), and Golden v. Chipman, 536 S.W.2d 761, 763 (Mo.App.1976), and one western district case, Butler v. Talge, 516 S.W.2d 824, 829 (Mo.App.1974). 2
This district agrees with the holding in Rodgers that a litigant in a civil case does not have a right to a new trial because he or she was required to exercise a peremptory challenge to remove a prospective juror who should have been removed for cause. So long as an unqualified juror who was not removed based on a proper challenge for cause does not serve in a civil case, there is no reversible error.
Since only two of the seven prospective jurors about whom plaintiffs complain, jurors No. 10 and 24, served on the jury, only their qualifications require review.
The standards for reviewing trial courts' rulings on challenges for cause are set forth in Ray v. Gream, 860 S.W.2d 325 (Mo. banc 1993). Trial courts are given broad discretion to determine whether prospective jurors are qualified, and rulings on that issue "will not be disturbed on appeal unless [they constitute] a clear abuse of discretion and a real probability of injury to the complaining party." State v. Feltrop, 803 S.W.2d 1, 7 (Mo. banc), cert. denied, U.S. [1262], 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991); State v. Walton, 796 S.W.2d 374, 377 (Mo. banc 1990). Mindful that the trial court is in a better position to determine the qualifications of prospective jurors, doubts as to the trial court's findings will be resolved in its favor. Walton, 796 S.W.2d at 378. The critical question in reviewing the exercise of discretion is whether the challenged venirepersons indicated unequivocally their ability to evaluate the evidence fairly and impartially. Feltrop, 803 S.W.2d at 7; State v. Lingar, 726 S.W.2d 728, 734 (Mo. banc 1987).
Juror No. 10 was Brad Pollett. Plaintiffs contend Pollett admitted biases against persons filing claims for medical negligence; expressed the belief that the value of a loss from wrongful death of a parent could not be translated into a monetary loss; admitted biases that would treat claims against doctors arising out of medical acts of negligence differently than negligence claims against other persons for other types of negligent acts.
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