Saucedo v. Winger, 66047

Decision Date16 April 1993
Docket NumberNo. 66047,66047
PartiesLydia SAUCEDO, Appellant, v. Ray WINGER, M.D., Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. Upon an inquiry as to the validity of a verdict or an indictment, no evidence can be received to show the effect of any statement, conduct, event, or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined. K.S.A. 60-441.

2. The statutory prohibition of K.S.A. 60-441 against impeachment of a jury verdict does not apply when a party claims that his or her constitutional right to a trial by jury has been violated by jury misconduct. See K.S.A. 60-444. In such situations, there is an opposing matter of public policy to be considered. Improper conduct on the part of a juror is charged to the entire panel, as the jurors operate as a unit, and public policy demands that misconduct be discouraged and, insofar as possible, prohibited. Inquiry is permitted into physical matters and misconduct which come to the attention of other members of the panel and may be verified or denied.

3. Where a party alleges jury misconduct, the trial judge is required to recall the jury if the judge cannot determine that the evidence supporting the other party is substantial and that the jury misconduct did not relate to a material issue in dispute. When the jury is recalled, a juror may be questioned or evidence received as to physical facts, conditions, or occurrences of a juror's misconduct, either within or without the jury room, which were substantially material to the issues being determined.

4. Discretion in performing an act arises when it may be performed in more than one way, any of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed. A decision which is contrary to the evidence or the law is sometimes referred to as an abuse of discretion, but it is nothing more than an erroneous decision or a judgment rendered in violation of law.

5. Judicial discretion is discussed and defined.

Gene H. Sharp, of Neubauer, Sharp, McQueen, Dreiling & Morain, P.A., Liberal, argued the cause and was on the brief, for appellant.

Ray H. Calihan, Jr., of Calihan, Brown, Burgardt & Wurst, Garden City, argued the cause and was on the brief, for appellee.

LOCKETT, Justice:

Plaintiff appeals a jury verdict in favor of defendant doctor in her medical malpractice action. On appeal, plaintiff contends that the trial judge erred by not setting aside the judgment for the defendant because of jury misconduct. The Court of Appeals affirmed the district court in an unpublished opinion filed May 22, 1992. We granted the plaintiff's petition for review pursuant to K.S.A. 20-3018(b).

Lydia Saucedo commenced a malpractice action against Dr. Ray Winger, alleging that the doctor's negligent diagnosis and treatment caused or substantially contributed to the death of her husband, Pablo, from cardiac infarction or cardiac arrhythmia. Dr. Winger's defense was that Pablo died of respiratory failure from inhaling vomit into his lungs, not of a heart attack.

At trial, Ralph Medina, a friend of Pablo and Lydia, testified that during Thanksgiving Day he, his brother, and Pablo consumed as much as four and one-half cases of beer. Lydia testified that she believed Pablo had about 12 beers at Medina's house, but Pablo and the two others could have consumed as much as four and one-half cases. Lydia estimated that they left Medina's house around 2:30 A.M. She stated that she teased Pablo about having a hangover the morning after Thanksgiving.

Pablo, Lydia, and their two young sons went to the office of Dr. Winger that morning. Lydia and her sons were with Pablo throughout the visit to Dr. Winger's office. Dr. Winger's nurse, Patricia Phillips, inquired as to Pablo's complaints and took a brief history. She noted on the chart: "Sharp pain in chest--started about 2 [hrs] ago; Arms numb; No Meds; B/P-130/84; NKA; T-98.0."

Dr. Winger examined Pablo and ordered a chest x-ray. Dr. Winger diagnosed Pablo as having gastroenteritis with possible bronchitis. Pablo was given an injection of an antibiotic and a quantity of Maalox antacid. Pablo was then sent home with instructions to rest, to continue taking antacids, and to return if he did not get better.

Lydia testified that after leaving Dr. Winger's office, they picked up Pablo's paycheck at his place of employment and when they returned home Pablo lay down on the couch. Lydia went outside the house to hang some clothes. When she came back in the house, 5 or 10 minutes later, she saw Pablo lying on the floor jerking, and his lips and cheeks were purple. Lydia had her next-door neighbor stay with Pablo while she went to get her sister. When Lydia returned home, Pablo's body was lying on the floor covered with a blanket, and she was told that Pablo had died.

Hospital records indicated that when the ambulance crew arrived Pablo had no vital signs, CPR was commenced, and Pablo was transported to the hospital. The emergency room chart indicated that Pablo was "D.O.A.," with no vital signs. A variety of resuscitative techniques was attempted in the emergency room. The emergency room notes indicate: "[R]epeated attempts to intubate unsuccessful.... Continuous emesis of stomach contents, with [high percentage] of what is apparently antacid." At Lydia's request, no autopsy was conducted.

Dr. Jack Perkins, plaintiff's expert medical witness, testified that it was unlikely that Pablo died from inhaling vomit into his lungs or as a complication of bronchitis and gastroenteritis. Although Dr. Perkins agreed with Dr. Winger's diagnosis that Pablo had bronchitis, it was his opinion that Pablo's death was due to a cardiac infarction or arrhythmia. Dr. Perkins testified that Dr. Winger was negligent in not ordering further tests to determine the condition of Pablo's heart.

The deposition of Lydia's uncle, Jesse Rodriquez, was admitted into evidence. Rodriquez stated that he last saw Pablo on the day before Thanksgiving (two days before Pablo died). Rodriquez said that when he arrived at the hospital, just after Pablo had died, he met Dr. Winger in the hospital and inquired as to the cause of Pablo's death. Rodriquez testified that Dr. Winger told him that Pablo could have died of a heart attack.

The defense presented several witnesses, including two members of the ambulance crew that treated Pablo. Kenton Brechbuhler, one of the crew members, stated that there was vomit on the side of Pablo's face. He described the vomit as "a mixture of white and gastric contents." He stated that during CPR Pablo's stomach contents were moving into Pablo's mouth with each compression of his chest. Janice Hickey, another crew member, described a white substance on the carpet and around Pablo's mouth.

Dr. Lawrence Perry, defendant's expert medical witness, testified that in his opinion Pablo probably died from respiratory failure of some sort. Dr. Perry indicated that struggling or jerking and a change in coloration could indicate that Pablo's lungs were not functioning. It was Dr. Perry's opinion that it was unlikely Pablo died from a myocardial infarction or any type of heart attack.

It is important to note that there is conflicting evidence as to what occurred during Dr. Winger's examination of Pablo. Dr. Winger noted on Pablo's chart "Spanish speaking only.... Low sternal chest pains & epigastric pain also vomit 6-7 [times] this A.M. ... Both children had vomit/dia that resolved two days ago.... Lungs clear but shallow breath. [Chest x-ray with increased] bronchial markings. [T]ender epigastrium. [I]mp: Gastroenteritis [with] poss[ible] Bronchitis." Dr. Winger admitted that he made these notations on Pablo's chart after he had learned of Pablo's death.

In his deposition taken prior to trial, Dr. Winger first stated that he had obtained that information from the Saucedos' daughter. (The Saucedos have two boys and no daughter.) At trial, Dr. Winger testified he talked to Pablo in Spanish but, when he had difficulty understanding Pablo, he asked one of the boys to help him. Dr. Winger said he was not sure whether the information about Pablo vomiting that morning came from Pablo or from the boys. He also said that the information about the children having diarrhea and vomiting two days earlier had come from either Pablo or one of the boys.

Lydia's testimony of what occurred during the doctor's examination of Pablo directly contradicted Dr. Winger's version of events. Lydia testified that Pablo spoke some English to Dr. Winger during the examination. Lydia testified she was fluent in both English and Spanish. (Dr. Winger was not aware of this fact until Lydia Saucedo's deposition was taken prior to trial.) She said that the children did not say anything during the examination and that no one told Dr. Winger that Pablo had vomited that morning. Lydia claimed that Dr. Winger's notations on Pablo's record that there was no history of high blood pressure, no history of chest pains, no blood in vomitus, and no blood in stools had no basis in fact because these subjects were not discussed during the examination. She stated the notation about the children being sick was totally false because the children had not been sick and the doctor had not asked the children whether they had been sick. Lydia stated that Dr. Winger never listened to Pablo's heart or lungs during the examination nor did he physically touch her husband.

Near the end of the trial, Pablo's now 11-year-old son, Eric Saucedo, was called to the stand by the plaintiff to demonstrate that Dr. Winger did not obtain any medical history from Pablo through Eric as an interpreter because the boy, who was 8 years old at the time of the examination, could not speak Spanish. Eric testified:

"Q. Eric, do you speak Spanish at...

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