Somerville v. Ahuja, 5D04-1688.
| Decision Date | 03 June 2005 |
| Docket Number | No. 5D04-1688.,5D04-1688. |
| Citation | 902 So.2d 930 |
| Parties | Mary SOMERVILLE, as Personal Representative, etc., Appellant, v. Ratan K. AHUJA, M.D., et al., Appellees. |
| Court | Florida District Court of Appeals |
Gregorio A. Francis of Morgan, Colling & Gilbert, P.A., Orlando, for Appellant.
John S. McEwan, II, Mary Jaye Debari and Michelle M. Perez-Sotolongo, of McEwan, Martinez & Dukes, P.A., Orlando, for Appellee.
Mary Somerville, the Personal Representative of her deceased husband's (Richard Somerville's) estate, appeals from a final judgment, after a jury trial, which denied her any damages in a medical malpractice case filed pursuant to sections 768.16-768.27, Florida Statutes. Mary sought to prove at trial that Doctor Ahuja deviated from the standard of care owed by practitioners in his field by failing to properly treat Richard's heart problems, by not ordering more testing prior to discharging him from the hospital, and by not prescribing additional cardiac medication upon discharging him.
Although there were other defendants involved, this appeal relates only to Dr. Ahuja, a cardiologist, who was called in for a consult on August 8, 2000 when Richard was admitted to Fish Memorial Hospital, complaining of rib cage pain. Tests revealed Richard had severe cardiac problems, and a cardiac surgeon recommended coronary by-pass surgery. Dr. Ahuja made the decision to discharge Richard from the hospital because he thought Richard was stable, and could gain strength resting at home, while awaiting the surgery. Unfortunately Richard suffered a fatal heart attack about 13 hours after being discharged.
The sole issue on appeal in this case is whether or not the appellant was denied a fair trial because the judge denied her four juror challenges for cause. Four prospective jurors answered questions during the voir dire, which appellant argues, demonstrated their lack of ability to be unbiased and without prejudice in deciding this case: Love (juror no. 4); Garner (juror no. 15); Beckwith (juror no. 12); and Walls (juror no. 17). The appellant exhausted her peremptory challenges against Love, Garner, and Beckwith, and after being denied an additional peremptory challenge, was forced to accept Walls, over protest, as a juror. We reverse for a new trial.
The issue of failing to excuse a juror for cause was preserved. Florida case law establishes that it is reversible error to require a party to exhaust all of that party's peremptory challenges against prospective jurors who should have been excused for cause, and thereby force that party to accept on the jury a person the party identifies and states they would have exercised a peremptory strike against, had they been granted an additional peremptory strike, or had they had an additional strike remaining.1 Although appellant's trial counsel did in fact ask for an additional preemptory strike to remove Walls from the jury, that is not a requirement to preserve the issue.2 We will discuss each prospective juror, including Walls, separately.
Prospective Juror Love.
One of the difficulties in picking this jury was the number of persons on the venire panels who harbored bad feelings about malpractice suits against doctors. They were concerned about the number of such suits, the potential problems which could make it difficult for them to find a doctor to treat them and their families, and the rising insurance costs for doctors, which they thought were caused by malpractice lawsuits.
Love responded that her uncle is a physician, and he had talked to her about rising insurance costs caused by too many malpractice lawsuits against doctors. Appellant's counsel asked her if she would have a problem bringing back a verdict against a health care provider, because of the cumulative effects of such lawsuits, and her ability to get good medical care. She replied, "I guess so, but I—but I still think that I could separate that from—once I heard the ... [evidence]." When appellant's counsel pressed her on whether or not she could assure him she would not let her preference play any role in her decision, she continued to vacillate by prefacing her responses "I think ...".
She confessed to having a lingering prejudice in favor of the defendant doctor, expressed as a "tiny bit." When asked what she based the "tiny bit" on she said
When appellant's counsel asked the judge to excuse her for cause, the judge said: "Because you got one juror more honest than the other ones, you got to kick her off?"
Appellant's counsel continued to question Love. She admitted to having had a recent conversation with a friend who is in medical school, that also influenced her against medical malpractice suits. When asked if those feelings would remain with her during the trial she replied, "I guess they would probably stay with me."
When asked by appellant's counsel if there was a realistic chance that her preference for an outcome in favor of the doctor in this case could have an influence on her watching the evidence, she replied
Garner also responded affirmatively to appellant's counsel's general questions of whether he harbored prejudice against medical malpractice suits, because of their cumulative adverse affect on doctors, and his ability to obtain good medical care for himself. When asked if it would be his preference in this case to bring back a verdict for the defense, he answered, But he concluded,
The trial court refused to excuse Garner for cause, explaining "I'm telling you, you could probably get anybody on that jury to say that." Appellant's counsel pointed out that Garner had said he "probably" would have a preference for a defense verdict. The court responded "I don't think that gets it." The court also commented to appellant's counsel: "So you got a good appeal ..."
This juror, as well as Walls, responded affirmatively to appellant's counsel's questions about whether they would be more inclined to bring back a defense verdict if they knew that the cardiology patient had been a smoker for a long period of time. In this case, Richard had smoked cigarettes over forty years, had been advised by his doctors to give up smoking, and smoking had contributed to his cardiac problems.
Beckwith said she would have more difficulties in finding fault on the doctor's part, than had the patient's heart condition been unrelated to smoking. She said,
When asked again by appellant's counsel whether she would be less inclined to hold the doctor responsible "regardless of the evidence, with a smoker that ended up with a cardiologist than a nonsmoker, if say for heredity?" She replied, "Yeah, I guess I'd have to say that, without knowing any other circumstances."
When Appellant's counsel moved to excuse her for cause because she said she would hold plaintiff's proofs to a higher standard because the patient was a smoker, the Court said "I didn't see that." The Court also said "Everybody out there would have said the same thing."
However, the Court asked Beckwith whether she thought the standard of responsibility would be different for a doctor, depending on whether or not the patient smokes. She replied, "not the doctor's responsibility, no." When asked about whether she thought the standard of care for a doctor is different, depending on whether or not the patient smokes, she said she did not understand the question.
The Court rephrased the question:
Beckwith replied, "No."
Juror Walls admitted he shared Beckwith's bias against smokers. He raised his hand in response to appellant's counsel's general questions concerning prejudice against smokers who suffer cardiac problems. In the case of Walls, he was not questioned beyond eliciting the fact that he shared Beckwith's views about smokers, and that he understood the questions posed to her.
When appellant's counsel sought to strike him for cause, the court denied his motion. Counsel's request for an additional peremptory strike in order to remove Walls from the jury panel, was denied, and counsel ultimately objected "for the record" to Walls serving on the jury.
The record of the voir dire in this case establishes that the trial judge was concerned that it was taking too much time to pick a jury, and that he was determined to pick a jury before the end of the day. A large number of prospective jurors were excused for cause, and in fact two jury panels had to be called before a final jury was selected. Some were excused because, like Love and Garner, they admitted to negative opinions about lawsuits brought against health care givers, and they were not certain they could set those opinions aside. Others were accepted by both sides when they unequivocally stated they could set aside any prejudices and biases. However due to the rush to pick the jury, the court apparently forgot what some of the challenged jurors had said, and it refused to have the court reporter read back some of the voir dire.
The right to have a case decided by an impartial jury has been equated to the constitutional right to a fair trial.3 Use of peremptory challenges and challenges for cause are two of the tools afforded parties and judges, in the context of a jury trial, to obtain a fair and impartial panel of jurors.4 The ultimate test is whether a juror can lay aside any bias or prejudice and...
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