Hudson v. Taleff
| Decision Date | 07 June 1989 |
| Docket Number | No. 58487,58487 |
| Citation | 546 So.2d 359 |
| Parties | Clara L. HUDSON v. Dr. Michael TALEFF. |
| Court | Mississippi Supreme Court |
Laurel G. Weir, Thomas L. Booker, Jr., Philadelphia, for appellant.
Walter W. Eppes, Jr., William B. Carter, Eppes, Watts & Shannon, Meridian, for appellee.
Before HAWKINS, P.J., and PRATHER and PITTMAN, JJ.
The application of the right to a fair and impartial jury trial in a medical malpractice civil case is the subject of this appeal. Clara Hudson brought this action in the Circuit Court of Lauderdale County, Mississippi, alleging negligence arising out of eye surgery performed by Dr. Michael Taleff. The jury found in favor of Dr. Taleff. Feeling aggrieved, Mrs. Hudson brings this appeal and assigns as error the following:
(1) Appellant did not receive a fair and impartial trial because the jury was not selected according to law resulting in a jury being selected prejudiced in favor of appellee against appellant.
(2) The court erred in granting instruction D-8 over objection of appellant.
(3) The court erred in granting instruction D-7 over the objection of appellant.
(4) The verdict of the jury and judgment of the court is contrary to the overwhelming weight of the law and evidence and not supported by any law or evidence and the court erred in not directing a verdict for appellant and in rulings on the objections.
Dr. Michael Taleff has practiced medicine specializing in ophthalmology in Meridian, Mississippi since 1969. Dr. Taleff and his associates have treated Clara Hudson, age 84 at the time of trial, since 1974.
On January 30, 1984, Dr. Taleff examined Mrs. Hudson and found that the cataract in her right eye was ready for surgery. He informed her that it was possible to implant intraocular lens inside her eye to correct her vision; Mrs. Hudson allegedly consented to the procedure and to the implantation of a lens. Dr. Taleff performed cataract surgery and implantation of an anterior chamber lens implant on Mrs. Hudson's right eye on February 1, 1984. Mrs. Hudson experienced iritis/inflammation after surgery. She also contends she suffered severe pain. Dr. Taleff last saw Mrs. Hudson on September 4, 1984. At that time, her vision had improved to 20/50 as compared to 20/400 she experienced prior to surgery.
Mrs. Hudson never returned to Dr. Taleff and elected to go under the care of Dr. Lynn McMahan, an ophthalmologist practicing in Hattiesburg. Dr. McMahan saw Mrs. Hudson on September 24, 1984, and found a malposition of the anterior chamber lens. Dr. McMahan removed the lens placed in Mrs. Hudson's right eye by Dr. Taleff and implanted another lens of the same type. Nevertheless, Mrs. Hudson continued to suffer from iritis and inflammation following Dr. McMahan's surgery. Finally, the second lens was completely removed by Dr. Wayne Beyer, Dr. McMahan's partner. Mrs. Hudson lost the vision in her right eye.
Mrs. Hudson filed a complaint for medical negligence against Dr. Taleff on January 22, 1986, alleging that he had negligently performed the cataract surgery and lens implantation and that he did not provide adequate follow-up medical care. Dr. Taleff answered that he had not deviated from the accepted standards of medical care for ophthalmology in performing the cataract surgery, in the implantation of the lens, or in providing follow-up care. Mrs. Hudson produced an expert witness, Dr. Kenneth Fox, who testified that the acts of Dr. Taleff were below the minimum standard of care. Dr. Taleff produced an expert witness, Dr. Sam Johnson, who contradicted Dr. Fox and asserted that Dr. Taleff's actions were entirely appropriate. Such were the factual issues submitted to the jury. The trial resulted in a verdict in favor with Dr. Taleff.
During voir dire, counsel for Mrs. Hudson moved the court to quash the jury panel for alleged violations of the applicable jury statutes and for fraud. Mrs. Hudson contends that: (A) the jury was not properly summoned by the Lauderdale County Sheriff in that the circuit clerk mailed summonses to prospective jurors rather than attempting personal service through the sheriff or some other officer; and (B) the method of selecting the jury was prejudicial and that Mrs. Hudson was forced to try her case before jurors who had been patients of Dr. Taleff, or patients of his two partners, Drs. Dan and Lowery Moore.
The selection of a jury is controlled by Miss.Code Ann. Sec. 13-5-1, et seq. The following sections have application to the issues presently before the court.
Miss.Code Ann. Sec. 13-5-8 provides that:
(1) In April of each year, the jury commission for each county shall compile and maintain a master list consisting of the voter registration list for the county.
(2) The circuit clerk of the county and the registrar of voters shall have the duty to certify to the commission during the month of January of each year under the seal of his office the voter registration list for the county.
Miss.Code Ann. Sec. 13-5-10 provides in part:
The jury commission for each county shall maintain a jury wheel into which the commission shall place the names or identifying numbers of prospective jurors taken from the master list.... In April of each year, ... the wheel shall be emptied and refilled as prescribed in this chapter.
Miss.Code Ann. Sec. 13-5-16 provides in part:
(1) [F]rom time to time and in a manner prescribed by the court, a private citizen who does not have an interest in a case pending trial and who is not a practicing attorney publicly shall draw at random from the jury wheel the names or identifying numbers of as many prospective jurors as the court by order requires. The clerk shall prepare an alphabetical list of the names drawn. Neither the names drawn nor the list shall be disclosed to any person other than pursuant to this chapter or specific order of the court.
Miss.Code Ann. Sec. 13-5-26 provides in part:
(1) The circuit clerk shall maintain a jury box and shall place therein the names or identifying numbers of all prospective jurors drawn from the jury wheel.
(2) A judge or any court or any other state or county official having authority to conduct a trial or hearing with a jury within the county may direct the circuit clerk to draw and assign to that court or official the number of jurors he deems necessary for one or more jury panels or as required by law for a grand jury, except as otherwise provided by subsection (3) of this section. Upon receipt of the direction, and in a manner prescribed by the court, the circuit clerk shall publicly draw at random from the jury box the number of jurors specified.
Miss.Code Ann. Sec. 13-5-28 provides that:
If a grand, petit or other jury is ordered to be drawn, the clerk thereafter shall cause each person drawn for jury service to be served with a summons, either personally or by mail, addressed to him at his usual residence, business or post office address, requiring him to report for jury service at a specified time and place.
(Emphasis added).
As a basis for her motion to quash the panel, Mrs. Hudson called as a witness the Circuit Clerk of Lauderdale County, Raymond Davis, to testify with respect to the selection of the jury panel for this case. Mr. Davis testified that 92 potential jurors were mailed a summons by regular mail six days prior to trial. No process was issued for jurors to be served by the sheriff or any lawful officer of Lauderdale County and the only service attempted was by mail. Mr. Davis testified that he excused twelve potential jurors based upon varied legal excuses. Four other jurors were excused by the court for valid statutory reasons.
After the verdict was received into open court, Mr. Davis was again called to the witness stand by Mrs. Hudson's counsel. Mr. Davis then testified that during the month of January, he provided to the jury commissioners a list of all qualified voters in Lauderdale County. The list was reviewed by the Commissioners who picked every fourth name to fill the jury wheel on the first day of April. After the jury wheel was filled and before the term of court, a disinterested person was chosen to pull approximately 1,200 names out of the jury wheel for placement in the jury box. Mr. Davis testified that he sometimes used a deputy sheriff to pull names from the jury wheel but that he could not recall the identity of the person selected in this particular case.
It is clear from the testimony of Mr. Davis that he followed all of the proper statutory procedures in impaneling the jury. In January he provided a list of qualified voters to the jury commissioners and in April the jury wheel was filled by the jury commissioners pursuant to Sec. 13-5-8. The jury commissioners properly maintained the jury wheel and placed the names of at least 1,200 prospective jurors taken from the master list onto the jury wheel pursuant to Sec. 13-5-10. A private citizen with no interest in the case was requested to draw names of potential jurors at random from the jury wheel pursuant to Sec. 13-5-16 and a jury box was maintained wherein the names and numbers of all prospective jurors were placed and drawn from the jury wheel pursuant to Sec. 13-5-28. The trial court was correct in finding that the jury was properly drawn and summoned.
Mrs. Hudson has alleged that this jury was prejudiced, biased and unfair because certain members of the original jury panel or members of their families had been (1) patients of Dr. Taleff or his medical partners or (2) represented by Dr. Taleff's attorney or his partners.
Of the 40,338 qualified voters of Lauderdale County, ninety-two people were summoned for jury duty during the week of the trial of February 2, 1987; however, there was only a jury pool of twenty-five from which a jury could be selected. Of these twenty-five, twelve, or 48 percent, had some connection with Dr. Taleff, his medical partners...
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