Macek v. Jones
| Decision Date | 06 November 2008 |
| Docket Number | No. 33525.,33525. |
| Citation | 671 S.E.2d 707 |
| Parties | Robert MACEK and Lawrence Macek, Individually and as Co-Executors of the Estate of Phyllis Macek, Plaintiffs Below, Appellants v. Carl R. JONES, D.O., and Weirton Medical Center, Inc., A West Virginia Corporation, Defendants Below, Appellees. |
| Court | West Virginia Supreme Court |
v.
Carl R. JONES, D.O., and Weirton Medical Center, Inc., A West Virginia Corporation, Defendants Below, Appellees.
[671 S.E.2d 708]
1. "Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence." Syl. Pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).
2. "We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review." Syl. Pt. 2, in part, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997).
3. "When considering whether to excuse a prospective juror for cause, a trial court is required to consider the totality of the circumstances and grounds relating to a potential request to excuse a prospective juror, to make a full inquiry to examine those circumstances and to resolve any doubts in favor of excusing the juror." Syl. Pt. 3, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).
4. "If a prospective juror makes an inconclusive or vague statement during voir dire reflecting or indicating the possibility of a disqualifying bias or prejudice, further probing into the facts and background related to such bias or prejudice is required." Syl. Pt. 4, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).
5. "Once a prospective juror has made a clear statement during voir dire reflecting or indicating the presence of a disqualifying prejudice or bias, the prospective juror is disqualified as a matter of law and cannot be rehabilitated by subsequent questioning, later retractions, or promises to be fair." Syl. Pt. 5, O'Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002).
Scott S. Blass, Geoffrey C. Brown, Bordas & Bordas, PLLC, Wheeling, Counsel for the Appellants.
Stephen R. Brooks, Robert C. James, Flaherty, Sensabaugh & Bonasso, PLLC, Wheeling, Counsel for the Appellee, Carl R. Jones, D.O.
Brent P. Copenhaver, Colombo & Stuhr, PLLC, Morgantown, Counsel for the Appellee, Weirton Medical Center, Inc.
PER CURIAM:1
This case is before this Court upon appeal by Robert and Lawrence Macek, as administrators of the Estate of Phyllis Macek (hereinafter "Appellants") from a final order of the Circuit Court of Brooke County denying post-trial relief subsequent to a defense verdict in this medical malpractice action. The Appellants contend that the lower court erred in failing to strike two potential jurors for cause. Subsequent to a six-day trial, the jury returned a unanimous verdict in favor of the Appellees, Weirton Medical Center and Dr. Carl R. Jones, (hereinafter "Appellees").
Upon review of the parties' arguments, the record, and the pertinent authorities, we affirm the trial court's rulings.
On February 21, 2000, Mrs. Phyllis Macek presented to the Emergency Department at Weirton Medical Center, suffering from rectal bleeding. Mrs. Macek was evaluated by an emergency medicine specialist, Dr. Edmundo Mandac. Subsequent to a series of tests, Dr. Mandac contacted Mrs. Macek's private physician, Gary Hanson, M.D., and Dr. Hanson thereafter ordered that Mrs. Macek be admitted to Weirton Medical Center. Dr. Hanson also ordered a consultation with Appellee Dr. Carl Jones, a gastroenterologist with staff privileges at Weirton Medical Center.
Dr. Jones evaluated Mrs. Macek and scheduled her for a colonoscopy to be performed the following day. By the morning of February 22, 2000, blood tests revealed that Mrs. Macek had lost blood during the night of February 21, 2000. Dr. Jones consequently ordered two pints of blood to be transfused and thereafter proceeded with the colonoscopy. During that procedure, it was discovered that Mrs. Macek had suffered a bowel perforation, and Dr. Jones terminated the colonoscopy. He transferred Mrs. Macek to the critical care unit and scheduled her for an exploratory laparotomy, after which she developed disseminated intravascular coagulopathy and died.
The Appellants brought a medical professional liability claim against Dr. Jones and Weirton Medical Center for alleged violations of the applicable standard of care and wrongful death. The Appellants contend that Dr. Jones perforated Mrs. Macek's colon during the course of the colonoscopy and that Mrs. Macek had not received sufficient blood prior to the initiation of that procedure. The Appellants further contend that Weirton Medical Center is vicariously liable for the conduct of Dr. Jones.
The case proceeded to trial in June 2006. At the request of Appellants' counsel, the trial court directed the prospective jurors to complete a "Special Jury Questionnaire" drafted by Appellants' counsel. Subsequent to the jurors' completion of the questionnaire, additional questioning of many of the prospective jurors occurred in the trial court's chambers. During such questioning, the trial court struck several prospective jurors for cause. The Appellants contend that the trial court erred in failing to strike prospective jurors David Andrew George and Glen Stolburg for cause.
Regarding the alleged bias of prospective juror Mr. David George, the Appellants claim that Mr. George was conspicuously biased toward Dr. Jones and that such bias was revealed through his answers to several questions. Question Number Four, for instance, presented the following question to Mr. George: "Can you state that if, after you have heard all of the evidence in this case, you find that the defendant, Dr. Jones, was negligent, you will return a verdict against Dr. Jones?" Mr. George answered: "If I believe that if his guilt is proven beyond a reasonable doubt, I would probably have no choice." When subsequently asked to explain his answer to that question, Mr. George stated, "Well I — maybe part of my philosophy is I try to be as objective as I can possibly be, because I know that the defendant, you know, he's facing something very serious." He continued, "I tend to be kind of sympathetic with people at the same time and — but there could be a good chance I'd say he's guilty [referring to Dr. Jones] too." Mr. George also explained that he did not "see any difficulties in reaching an impartial and unbiased verdict...."
The Appellants also emphasize Mr. George's apparent identification with physicians who had been subjected to medical malpractice claims. For instance, Mr. George was asked, "Have you read, heard or discussed anything about medical negligence actions, lawsuits or a liability crisis?" He answered, "I heard of a doctor in Wheeling who lost a million dollar negligence suit for refusing to listen to the daughter of a patient who was ordered to go home and died there that night." Mr. George later explained that he personally knew the physician who was involved in the case he referenced in his written response. Mr. George stated that he had "sympathy for him" and explained that "[i]t kind of stays with me." He acknowledged
that while he tried to be fair, the incident "had some kind of effect on me simply because I knew [the physician]." He further stated that he "couldn't just wipe it clean from [his] memory." Mr. George also explained that his brother, Ned George, was a Wheeling attorney who represents employers in civil litigation.
In response to another question concerning whether he had formed an opinion regarding medical negligence actions, Mr. George answered: "I sometimes can't help but think that some lawyers take advantage of what become frivolous cases and the premiums doctors have to pay skyrocket and it drives some of them out of the state. On the other hand, I try to be objective about them as well." In response to another question regarding medical malpractice claims, Mr. George stated, "I will admit that I suspect there can be greed involved with the plaintiffs. However, some do have legitimate cases that stick." When asked whether negligence actions had interrupted the quality of care or increased costs, Mr. George wrote, "I think it has because of a doctor in Weirton who had to refer me to an interim [doctor] because she was trying to reassess what she was going to do because of the malpractice [situation]." Mr. George later explained that "there could be lots of doctors who leave the state because they have to pay so much for their premiums." He also stated that he was "sympathetic with [his own doctor] because ... it's been kind of difficult for her."
With respect to prospective juror Glen Stolburg, the Appellants contend that Mr. Stolburg failed to accurately portray his exposure and understanding of his employer's stance on medical malpractice litigation. Mr. Stolberg was employed as a district sales manager for Ogden Publishing. The Appellants maintain that Ogden Publishing's coverage of medical malpractice litigation had been extensive.2 The Appellants contend that Mr. Stolburg was untruthful in his response to a question regarding whether he had read, heard, or discussed anything about medical malpractice litigation. Mr. Stolburg had simply replied, "no." Further questioning, however, revealed that Mr. Stolburg was indeed aware of Ogden Publishing's coverage of medical malpractice issues. "I know it carried some coverage... well, I know it was on the front page a few times," Mr. Stolburg stated. He also revealed that he was aware of a strike by Wheeling area physicians, their discontent with insurance premiums, and their desire to seek...
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