Mcdonald v. Shea
| Decision Date | 16 February 2012 |
| Docket Number | No. W2010-02317-COA-R3-CV,W2010-02317-COA-R3-CV |
| Parties | MARSHA MCDONALD v. PAUL F. SHEA M.D. AND SHEA EAR CLINIC |
| Court | Tennessee Court of Appeals |
Appeal from the Shelby County Circuit Court
No. CT-003393-05 John R. McCarroll, Jr., Judge
This is a medical malpractice appeal. The plaintiff patient was treated by the defendant physician for ear problems. After the treatment, she had a complete loss of hearing in one ear. The plaintiff patient filed this lawsuit against the physician, alleging medical malpractice and lack of informed consent. After potential experts in Tennessee and contiguous states declined to testify against the defendant physician, the trial court permitted the plaintiff to use an expert physician witness from a non-contiguous state. At the jury trial, after the jury was sworn and counsel gave opening statements, a juror notified the trial judge of the her concern about an upcoming social event she planned to attend, at which a relative of the defendant physician would be present. After voir dire, the trial judge noted that the plaintiff patient had unused remaining peremptory challenges and excused the juror. The trial court denied the defendant physician's motion for directed verdict on informed consent. The jury awarded the plaintiff substantial compensatory damages. The defendant physician now appeals, arguing that the trial court erred in permitting the plaintiff to obtain an expert from a non-contiguous state, in allowing the plaintiff to exercise a peremptory challenge after trial was underway, in permitting the informed consent claim to go to the jury, and in denying the defendants' motion to exclude the expert retained by the plaintiff. We affirm on all issues except the dismissal of the juror. We hold it would be error to permit the exercise of a peremptory challenge after the trial is underway, but find that any error was harmless under the facts of this case. Therefore, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed
Albert C. Harvey, John H. Dotson, and Justin N. Joy, Memphis, Tennessee, for Defendants/Appellants Paul F. Shea, M.D. and Shea Ear Clinic.
Gary K. Smith and Janelle C. Clark, Memphis, Tennessee for Plaintiff/Appellee Marsha McDonald.
FACTS AND PROCEEDINGS BELOW
In May 2000, Plaintiff/Appellee Marsha McDonald ("McDonald") consulted a physician at the Defendant/Appellant Shea Ear Clinic ("Shea Clinic") about problems with her ear. She was diagnosed with partial hearing loss in her left ear. A year later, McDonald visited the same physician, no longer associated with Shea Clinic, for follow up; it was determined that her hearing remained unchanged.
In the summer of 2004, McDonald began experiencing new symptoms, including pressure in her head and lightheadedness in the morning. On July 16, 2004, McDonald visited Defendant/Appellant Paul F. Shea, M.D. ("Dr. Shea") at the Shea Ear Clinic concerning the new symptoms she was experiencing. After McDonald underwent several tests, Dr. Shea informed her that she was suffering from Meniere's disease in her left ear, which was causing the hearing loss in that ear.1 Dr. Shea recommended a course of treatment that included perfusion, that is, making a small hole in the ear drum and injecting medication into the middle ear space. Dr. Shea gave McDonald a pamphlet explaining the prefusion procedure and discussed with McDonald the expected outcome. The pamphlet stated, inter alia, that for 95% of patients who received perfusion treatment, the patient's hearing remained the same or improved, and for 5% of the patients, the patient's hearing was "worse" after treatment. According to McDonald, in the course of discussing the pamphlet and the risks with her, Dr. Shea told McDonald that perfusion "can even improve your hearing, but let's just count on your hearing staying the same." McDonald said that Dr. Shea did not advise her that she could experience total hearing loss as a result of the procedure.2 McDonald agreed to the perfusion treatment recommended by Dr. Shea.
On July 20, 2004, McDonald presented at the Shea Clinic to begin the three-day perfusion treatment. Upon arrival, she was given a document which indicated the risks of the procedure and stated that the perfusion treatment could result in "further increase in hearing loss, even to complete loss of hearing." McDonald had not brought her eyeglasses with her and told the Shea Clinic representative that she could not read the form. According to McDonald, she was told that everyone needed to sign the form acknowledging receipt of the risk disclosure document in order to receive the treatment; however, the information was not read or explained to her. McDonald signed the document and began the course of treatment that day. Over the next three days, Dr. Shea administered three rounds of perfusion therapy on McDonald.
After completing the perfusion therapy, McDonald began to experience a number of symptoms, including extreme dizziness, feeling off-balance, and a "stopped up" feeling in her left ear. As a result, McDonald visited several ear physicians, but did not initially return to see Dr. Shea. In November 2004, McDonald's hearing was tested and the results showed a 100% hearing loss in her left ear. This result was confirmed when McDonald later visited Dr. Shea.
On June 23, 2005, McDonald filed the instant lawsuit against Dr. Shea and the Shea Clinic in the Circuit Court of Shelby County, alleging, inter alia, negligent deviation from the applicable standard of care and failure to obtain informed consent. The complaint sought compensatory damages.3 The defendants denied liability, and discovery ensued.
In the course of trial preparation, McDonald filed a motion for permission from the trial court to identify a medical expert witness from a state not contiguous to Tennessee, pursuant to Tennessee Code Annotated § 29-26-115(b).4 The motion asserted that McDonald's counselhad discussed her case with more than a dozen physicians from either Tennessee or a contiguous state,5 and while "many"opined that the facts presented by counsel indicated "a strong case of malpractice" by Dr. Shea, each of the potential expert physicians indicated "that they were unwilling to give testimony in the case for fear of retribution" from Dr. Shea's father, a prominent Memphis physician specializing in ear problems. McDonald's motion stated that the potential expert witnesses stated that Dr. Shea's father "was known to be professionally vindictive." An affidavit by McDonald's counsel to that effect was filed in support of the motion. After a hearing, the trial court entered an order granting McDonald's motion.
Court permission in hand, McDonald identified an expert witness physician from Los Angeles, California, Dennis R. Maceri, M.D. ("Dr. Maceri"). After taking Dr. Maceri's deposition, Dr. Shea filed a motion to exclude his testimony from the trial. The bases for the motion to exclude included the following: (1) Dr. Maceri was unfamiliar with the standard of acceptable professional practice in Memphis, Tennessee; (2) Dr. Maceri's compared community, Los Angeles, California, is not similar to Memphis, Tennessee; and (3) Dr. Maceri's specialties and areas of practice did not qualify him to opine on the standard of acceptable practice for the treatment at issue. The trial court declined to grant Dr. Shea's motion to exclude, and Dr. Maceri was permitted to testify on behalf of McDonald.
The jury trial in this matter commenced on June 14, 2010. The attorneys were permitted to conduct voir dire, which included a "catch-all" question by counsel for McDonald, asking potential jurors to disclose any reason why it would be "difficult" to be fair and impartial. McDonald was given six peremptory challenges and used four of them. The defendants Dr. Shea and Shea Clinic were given eight peremptory challenges and used all eight of them. At the end of the jury selection process on June 14, a total of twelve jurors and two alternates were selected and sworn, including Juror H. The alternates were not identified at that time.
The next morning, June 15, after the jury was empaneled and the lawyers gave their opening statements, the trial judge received a note from Juror H. The note stated that, during the coming weekend, Juror H expected to attend a social event hosted by her in-laws, and that Dr. Shea's mother was expected to attend the event. It said that, while Juror H did not knowDr. Shea or his family, Dr. Shea's mother was a friend of Juror H's mother-in-law. In light of the note, the attorneys were permitted to conduct additional voir dire on Juror H. Juror H explained that she wrote the note because the information was laying "heavy on [her] heart." She admitted that while she had never met Dr. Shea or his father, she had met Dr. Shea's mother two or three times in social settings. Juror H conceded that voting against Dr. Shea in the lawsuit would make her feel uncomfortable in future social situations, but said that she could put aside her discomfort "to do the right thing" in this lawsuit.
After Juror H left the courtroom, the trial court clarified with the lawyers that, after jury selection was completed, McDonald had two unused peremptory challenges. In response to the trial court's inquiry, counsel for McDonald indicated that, had he known the information disclosed by Juror H during jury selection, he would have used one of his unused peremptory challenges to remove her from the jury. The trial judge then stated to McDonald's attorney, "I think you have a right to do that now." After McDonald's counsel said, "I would do that," the trial court stated: and began discussing the number of jurors that remained....
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