Shipley v. Permanente Hospitals

• Decision Date: 15 September 1954
• Citation: 48 A.L.R.2d 964,274 P.2d 53,127 Cal.App.2d 417
• Court: California Court of Appeals Court of Appeals
• Parties: , 48 A.L.R.2d 964 Raymond A. SHIPLEY and Hazel Shipley, Plaintiffs and Respondents. v. The PERMANENTE HOSPITALS, a corporation, The Permanente Foundation Hospital, a trust fund administered through trusteeship; Sidney Garfield, as trustee of the Permanente Foundation Hospital, a trust fund, and J. G. Hallett, Defendants and Appellants. Civ. 15955.

Page 53

274 P.2d 53

127 Cal.App.2d 417, 48 A.L.R.2d 964

Raymond A. SHIPLEY and Hazel Shipley, Plaintiffs and Respondents. v. The PERMANENTE HOSPITALS, a corporation, The Permanente Foundation Hospital, a trust fund administered through trusteeship; Sidney Garfield, as trustee of the Permanente Foundation Hospital, a trust fund, and J. G. Hallett, Defendants and Appellants.

Civ. 15955.

District Court of Appeal, First District, Division 2, California.

Sept. 15, 1954.

Ricksen, Freeman & Johnson, Ralph Nathanson, Oakland, for appellants.

Ernest I. Spiegl, Schroth & Salerno, San Francisco, for respondents.

NOURSE, Presiding Justice.

This is an appeal by defendants from an order granting a new trial after a verdict in their favor. The action is for damages for malpractice. Plaintiffs are Hazel Shipley, the patient, and her husband; as defendants there remain after certain changes pending suit the Permanente Hospital, a corporation; Permanente Health Plan, a nonprofit trust and Dr. J. G. Hallett. It was the position of plaintiffs that Mrs. Shipley submitted herself to Permanente Health Plan and Permanente Hospital for treatment of a back injury caused by a fall from a chair, that defendant Hallett and his assistants, as agents of the other defendants, negligently (without taking X-rays of the back) made the diagnosis that Mrs. Shipley's symptoms required hysterectomy; that they performed said operation without necessity and in a negligent manner, that, when during some months after the operation Mrs. Shipley's painful symptoms did not disappear, defendants found by means of X-ray diagnosis a facet fracture of part of a lumbar vertebra and that when thereafter they began to render treatment for said fracture it was too late to give adequate relief.

The motion for a new trial was based on the following grounds: (1) Irregularity in the proceedings of the jury by which plaintiffs were prevented from having a fair trial; (2) misconduct of the jury; (3) irregularity in the proceedings of the attorney for defendants by which plaintiffs were prevented from having a fair trial; (4) accident and surprise which ordinary prudence could not have guarded against; (5) error in law, occurring at the trial and objected to by the plaintiffs. The order appealed from granted a new trial on all issues without stating on which grounds it was based. However, the hearing of the motion for a new trial was mainly concerned with alleged prejudice (sympathy) of some jurors for doctors charged with malpractice contrary to said jurors' answers on voir dire and the trial judge indicated that he considered this the main point. Therefore this matter will be considered first. (All other grounds specified in the motion which find support in the evidence and the law are equally available to sustain the order.)

The motion for a new trial was supported by affidavits of three dissenting jurors and of one juror who after having been in favor of a verdict for plaintiffs changed her vote. They declare that at the first ballot, taken after several hours of debate, the jury stood seven to five in favor of defendants. The majority of the seven jurors favoring defendants made statements substantially as follows:

'A verdict against Dr. Hallett would blast his professional career;'

'In general, a malpractice verdict against a doctor ruins him professionally.'

'Regardless of what has happened to Mrs. Shipley, nothing that we can do will restore her; but any verdict which we bring against the doctor will ruin him!'

'If we were to hold doctors liable for their mistakes, they would never operate on anyone.'

'Doctors spend years in studying for their professions; they should know what they are doing, and we have no right to pass judgment on them.'

'If one can't put his faith in doctors he has no business going to them in the first place.'

When the foreman of the jury, one of the dissenters, pointed out that the above position was based upon sympathy and prejudice in favor of doctors contrary to the oath and duty of a juror the language of the replies were to the effect that such jurors could not bring in a malpractice verdict against an individual doctor on the ground that the detriment to the individual doctor and the medical profession outweighed the justice of the individual case.

As several of the majority jurors were willing to vote for a verdict in favor of plaintiffs if the defendant doctor could be excepted from liability, the foreman asked the court for instruction as to the possibility of such a verdict. When the court advised the jury that a plaintiffs' verdict must be against all defendants, the seven jurors favoring the doctor maintained their vote and the majority of them more than once repeated the statements made before, including their refusal to render a malpractice verdict against any practicing physician or surgeon. Although affiants are unable to state the exact words of the statements made by such jurors, nor the names of the individual jurors who made the respective statements, the thoughts stated were repeated many times by the majority of the jurors; from which fact the affiants conclude that said jurors, whether consciously or unconsciously, possessed, from the outset of the proceedings, a state of mind inconsistent with their answers on voir dire that they had no prejudice one way or the other, would not be activated by sympathy and would determine the issues solely upon the evidence and the law as given to them by the court.

Moreover an affidavit of plaintiffs' attorney stated among other things in substance that each juror had been carefully questioned on voir dire as to his state of mind with respect to the above points, that if the jurors' answer to said questions had been contrary to those given he would have assigned said answers as ground for excusing the juror for cause and if that was not accepted have challenged him peremptorily; that because of the answers given neither he himself, nor associate counsel, nor plaintiffs had any means of discovering the true mind of the above several jurors until after discharge of the jury, when he was so informed by the foreman.

Defendants moved to strike out the above affidavits of jurors as inadmissible under the rule that jurors are not allowed to impeach the verdict, and themselves offered affidavits in opposition of three jurors favoring the verdict, denying in effect that any majority juror used arguments other than based on the evidence and the instructions, acted unfairly or partially or were influenced by sympathy or prejudice or did not keep free and open minds. Plaintiffs moved to strike these affidavits and defended those in support of their motion on the ground of an alleged exception in California to the rule excluding affidavits of jurors to impeach the verdict. This exception allegedly permits the use of jurors' affidavits to show occurrences during the deliberations of the jury or the trial tending to disclose bias of a juror or another circumstance existing at the time of the voir dire examination which if truthfully declared in answer to questions actually put on voir dire would have been a basis for challenge for cause, but which was concealed by untruthful answers and could not have been detected by the party prejudiced before the end of the trial. Both motions to strike were denied.

Appellants urge that the jurors' affidavits in support of the motion for a new trial were inadmissible and that then there was no evidence at all of bias concealed on voir dire. They recognize the existence in California of an exception of the kind stated but contend that such exception is limited to cases of intentional concealment on voir dire. They moreover urge that there was no evidence whatever that the bias shown during the jury deliberations, if any, existed at the time of the voir dire examination.

The cases are not conclusive with respect to the alleged requirement of intentional concealment. The first time that the exception was treated expressly in California was by this court in Williams v. Bridges, 140 Cal.App. 537, 35 P.2d 407. In that case a motion for a new trial was granted because a juror, who had declared on voir dire that she knew absolutely nothing about the facts of the case, was shown by a juror's affidavit to have declared in the jury room that she knew about the accident, had passed the place where it occurred and was not surprised that the fence fell because she had noticed that it was poorly constructed. The court distinguished the prohibition of affidavits of jurors to impeach the verdict with respect to words or acts inherent in the verdict and which had their origin after the impanelment and before the discharge of the jury from the facts of the case which had their origin before the impanelment and continued until the discharge of...