Johns v. Jarrard
| Decision Date | 25 March 1991 |
| Docket Number | No. 89-8930,89-8930 |
| Citation | 927 F.2d 551 |
| Parties | Darlene JOHNS and Steve Johnson, Parents of Olivia Johns, Deceased, Plaintiffs-Appellants, v. G. Truett JARRARD, Jr., M.D., Defendant, David G. Fisher M.D., and J.J. Thomasson, M.D., Defendants-Appellees, Newnan Hospital, Defendant-Cross-Claimant-Appellee, Coastal Emergency Service, Inc., Defendant-Cross-Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Ronald L. Hilley, Tucker, Ga., for plaintiffs-appellants.
Theodore E.G. Pound, Lisa Joan Fellner, Alston and Bird, Atlanta, Ga., for Fisher and Coastal Emergency Service.
David H. Tisinger, Paul E. Weathington, Kevin Buice, Tisinger, Tisinger, Vance and Greer, Carrollton, Ga., for Thomasson and Jarrard.
Sidney F. Wheeler, Stephen H. Sparwath, Debra LeVorse, Long, Weinberg, Ansley & Wheeler, Atlanta, Ga., for Newnan Hosp.
Appeal from the United States District Court for the Northern District of Georgia.
Before JOHNSON and HATCHETT, Circuit Judges, and DYER, Senior Circuit Judge.
In this wrongful death action against physicians, a physician supply company, and a hospital, we determine that a new trial is required because the district court improperly answered a question from the jury during the jury's deliberations.
On June 29, 1986, at approximately 4 p.m., Olivia Johns fell off her bicycle. At approximately 4:20 p.m., Olivia Johns' grandfather, Clifford Johns, took her to Newnan Hospital, in Newnan, Georgia, where Dr. David Fisher, the emergency room physician on duty, saw Olivia Johns. Olivia had an elevated pulse, a low blood pressure and complained of pain in her right side. After examining Olivia, Dr. Fisher wrote "rule out ruptured viscus" in After examining Olivia, Dr. Fisher began administering fluids into the patient. He also telephoned Dr. J.J. Thomasson, Jr., the on-call surgeon, regarding Olivia's condition. After calling Dr. Thomasson, it became apparent to Dr. Fisher that Olivia's condition was declining; so, Dr. Fisher called Dr. Thomasson again. Although the content and timing of these telephone conversations are in dispute, Dr. Fisher generally advised Dr. Thomasson of Olivia's condition and requested that he come to the hospital.
the emergency room record. Viscus is any large interior organ in any one of the three great cavities of the body, especially the abdomen. Treatment for a ruptured viscus causing internal bleeding generally requires stabilization of the patient through the administration of fluids, and sometimes blood, until a surgeon can operate and stop the bleeding.
Sometime between 5 p.m. and 5:05 p.m., immediately after Dr. Thomasson walked into the emergency room, Olivia suffered a cardiac arrest. Despite efforts to resuscitate her, Olivia died at 6:02 p.m. Olivia did not receive blood at any time during her treatment at Newnan Hospital. An autopsy revealed that Olivia had a lacerated liver, which resulted in the release of blood into her abdomen, causing cardiac arrest.
Darlene and Steve Johns, Olivia's parents, filed this wrongful death action naming as defendants Dr. Fisher, Coastal Emergency Services, Inc. (Coastal), Dr. G. Truett Jarrard, Jr., the on-call internist, Dr. Thomasson, and Newnan Hospital. Coastal supplied Newnan Hospital with emergency room physicians, including Dr. Fisher. The complaint alleged (1) medical malpractice against the physicians, (2) respondeat superior liability against Newnan Hospital for the actions of the physicians, (3) respondeat superior liability against Coastal for the actions of Dr. Fisher, and (4) negligence against Coastal for supplying and holding Dr. Fisher out as competent to practice emergency room medicine.
The district court granted Coastal's motion for partial summary judgment on the ground that Coastal could not be vicariously liable for Dr. Fisher's alleged acts of negligence. The district court denied all other defendants' motions for summary judgment.
At the conclusion of the parents' case, the district court granted Dr. Thomasson's motion for a directed verdict on the claim that he negligently failed to respond to this emergency in a timely fashion. The district court also granted Coastal's motion for a directed verdict as to the allegation that Coastal negligently held Dr. Fisher out as competent to practice emergency room medicine.
During jury deliberations, the jury sent out the following question:
In the testimony it was mentioned that Doctor Fisher in his diagnosis ruled out ruptured viscus. Was he asking or telling Doctor Thomasson that a ruptured viscus should be ruled out?
After reading the question, the district court stated: "Seems to me that's clearly asking for an interpretation of the evidence that the jury must make, unless you all have some consensus other than that." Coastal's attorney noted that "there is some confusion in the use of that medical term of art, 'rule out.' "
The parents' attorney commented:
I mean--your Honor, I think we made the specification of negligence clear, which was that we got a fluid question. I think that if--I think the best thing to do is--this is obviously--they are asking if somebody remembers the testimony different, and they are asking the court to help them figure out what some of the testimony was.
Really, the only thing to do is just to leave them with it, and then maybe they will study it some more or maybe they will go on to something else.
The district court responded, After further discussion the district court responded by asking the jury to restate the question.
A short time later, the jury returned with the following question:
When Doctor Fisher stated in the medical records, quote, "rule out ruptured viscus," end of quote, was he stating he had ruled out ruptured viscus in his preliminary examination?
The district court's initial comment concerning the question was "I could not answer it unless you all unanimously agree." Later, however, the district court, over the parents' objection, responded to the question by telling the jury "no." Shortly thereafter, the jury returned a verdict for the remaining defendants.
The parents contend that the district court's response to the jury's question misled the jury resulting in an erroneous verdict. Further, the parents contend that the district court erred when it (1) granted Coastal's motion for partial summary judgment on the ground that Coastal could not be held vicariously liable for Dr. Fisher's alleged acts of negligence, and (2) granted Dr. Thomasson's motion for a directed verdict.
This appeal raises the following issues:
(1) Whether the district court erred when it responded to the jury's question;
(2) Whether the district court erred when it granted Coastal's motion for partial summary judgment; and
(3) Whether the district court erred when it granted Dr. Thomasson's motion for a directed verdict.
"It is the inescapable duty of the trial judge to ... guide, direct, and assist [the jury] toward an intelligent understanding of the legal and factual issues involved in their search for truth." 9 Wright & Miller, Federal Practice and Procedure Sec. 2556 at 654 (1971). To that end, a district court "may comment on the evidence, may question witnesses and elicit facts not yet adduced or clarify those presented." Hanson v. Waller, 888 F.2d 806, 813 (11th Cir.1989) (quoting Moore v. United States, 598 F.2d 439, 442 (5th Cir.1979)).
The responsibility of a federal trial judge is Price v. Glosson Motor Lines, Inc., 509 F.2d 1033, 1036 (4th Cir.1975) (quoting Walsh v. Miehle-Goss-Dexter, Inc., 378 F.2d 409, 415 (3d Cir.1967)). "The proper standard of review on jury instructions is to view the challenged instructions 'as part of the entire charge, in view of the allegations of the complaint, the evidence presented, and the arguments of counsel, to determine whether the jury was misled and whether the jury understood the issues.' " National Distillers and Chemical Corp. v. Brad's Machine Products, Inc., 666 F.2d 492, 497 (11th Cir.1982) (quoting First Virginia Bankshares v. Benson, 559 F.2d 1307, 1316 (5th Cir.1977)).
The parents contend that the district court's response to the jury's question misled the jury and resulted in an improper verdict. The key issue before the jury, the parents argue, was whether Dr. Fisher took proper measures to stabilize Olivia's internal bleeding to permit her to survive until surgery could be performed. They assert that a credibility issue arose when their expert, Dr. Dresnick, testified that the only plausible explanation for Dr. Fisher's inadequate treatment was his failure to properly diagnose Olivia's condition. According to the parents, the district court's answer to the jury's question told the jury (1) that Dr. Fisher properly diagnosed Olivia's condition during his preliminary examination, and (2) to disbelieve Dr. Dresnick's opinion. Therefore, say the parents, the district court's answer to the question "judicially impeached" their expert.
Dr. Fisher, Coastal and Newnan Hospital respond that the jury's question concerned a matter that was not in dispute and not important as to liability or damages. Moreover, Dr. Fisher, Coastal and Newnan Hospital argue that all of the evidence supports the conclusion that Dr. Fisher correctly diagnosed a ruptured viscus. Consequently, they conclude that the district court's response was appropriate because it prevented the jury from being concerned with a non-issue.
We find that the district court's...
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