Taliaferro v. Shahsavari

• Citation: 154 P.3d 1240,2006 OK 96
• Decision Date: 19 December 2006
• Docket Number: No. 102,225.,102,225.
• Parties: Sherry TALIAFERRO, Individually and as Personal Representative of the Estate of Gus William Taliaferro, Sr., Deceased, Plaintiff/Appellee, v. Mehran SHAHSAVARI, M.D., Defendant/Appellant.
• Court: Supreme Court of Oklahoma

154 P.3d 1240

2006 OK 96

Sherry TALIAFERRO, Individually and as Personal Representative of the Estate of Gus William Taliaferro, Sr., Deceased, Plaintiff/Appellee, v. Mehran SHAHSAVARI, M.D., Defendant/Appellant.

No. 102,225.

Supreme Court of Oklahoma.

December 19, 2006.

Certiorari to the Court of Civil Appeals, Division 4; Honorable Tom A. Lucas, Trial Judge.

¶ 0 In October of 2003, Gus Taliaferro died of a heart attack after being released from the care of Dr. Mehran Shahsavari. The appellee, Taliaferro's widow, Sherry Taliaferro, brought a medical malpractice action against the appellant, Dr. Shahsavari. At trial, the jury found for Dr. Shahsavari, and the widow moved for a new trial. The trial judge, Honorable Tom A. Lucas, granted the motion based on: 1) failure to exclude evidence of a prior incident between Dr. Shahsavari and an expert witness; 2) failure to excuse a prospective juror for cause; and 3) utilization of an improper jury instruction. Dr. Shahsavari appealed. We hold that the trial court did not abuse its discretion by granting the motion for a new trial.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; TRIAL COURT AFFIRMED.

Danny Shadid, Oklahoma City, OK, for Plaintiff/Appellee.

G. Calvin Sharpe, Malinda S. Matlock, Oklahoma City, OK, for Defendant/Appellant.

KAUGER, J.

¶ 1 The issue presented is whether the trial court erred in granting a new trial. We hold that it did not.

DISPUTED FACTS

¶ 2 On October 4, 2003, Gus Taliaferro, Sr. (Taliaferro/deceased) went to the Norman Regional Hospital Emergency Room complaining of shortness of breath and pain in his chest—his second episode that week. Dr. Brent Wauters, an ER physician, advised him that his symptoms were the result of pre-existing emphysema and sent him home. On October 7, 2003, Taliaferro returned to the emergency room with the same symptoms. Dr. Thomas Ingmire, an emergency room physician, ordered an electrocardiogram, chest x-ray, and cardiac enzyme tests, each of which yielded normal results. Dr. Ingmire also administered two breathing treatments to Taliaferro and recommended that he be admitted for a cardiopulmonary work-up.

¶ 3 Taliaferro was admitted to the care of the appellant, Dr. Mehran Shahsavari (Dr. Shahsavari/doctor), an internist in private practice at Norman Regional Hospital. On October 7-8, 2003, the doctor recommended breathing treatments every 4 hours. Relying on the tests performed the day before by Dr. Ingmire, Dr. Shahsavari ordered no further work-up and released Taliaferro at 10:45 a.m. on October 8, 2003. At 8:00 a.m. on October 9, 2003, Taliaferro returned to the hospital with severe sub-sternal chest pain. Despite treatment which included placement of stents and a balloon pump by a cardiologist, Dr. Dia Abochamh, Taliaferro died in the late afternoon on October 9, 2003. A week after Taliaferro's death, Sherry Taliaferro, the deceased's widow and representative of his estate (widow), met with Dr. Abochamh, who told her that her husband's death was the result of "manslaughter" committed by Dr. Shahsavari.¹

¶ 4 On March 29, 2004, the widow brought an action for malpractice against Dr. Shahsavari. During voir dire, the widow objected to a prospective juror, Barbara Jean O'Neill (O'Neill). O'Neill had been an X-ray technician in heart catheterization labs for thirty years where she assisted doctors in the same kind of work that Dr. Shahsavari performed. O'Neill had a daughter-in-law who worked in Norman Regional's catheterization lab with Dr. Shahsavari on a regular basis. O'Neill had also been previously introduced to one of Dr. Shahsavari's expert witnesses by her daughter-in-law.

¶ 5 The widow objected to O'Neill on the grounds that she would become an expert witness to the other jurors. The trial court chose not to excuse her based on her assertions during voir dire that she could be fair and impartial in weighing the evidence. The widow used her first peremptory challenge to remove O'Neill. The only other juror challenged for cause by the widow was prospective juror, Robert Winslow, whose father was a surgeon. The Court granted the challenge and removed Winslow. Another prospective juror, Corrie Sue Butler, had been a neonatal nurse at Norman Regional for 35 years. The widow did not challenge her, and she was seated as juror number four. Dr. Shahsavari made no challenges for cause.

¶ 6 At trial, one of the widow's expert witnesses was Dr. Dia Abochamh, the physician who had last treated Taliaferro. Dr. Abochamh testified that Dr. Shahsavari was negligent in failing to perform a cardiovascular work-up on Taliaferro, and that had a work-up been performed, Taliaferro's life most probably could have been saved.

¶ 7 The court, over the widow's objection, allowed evidence of an incident to be introduced at trial by Dr. Shahsavari for the purpose of showing evidence of Dr. Abochamh's motive or bias. In late July 2003, Dr. Abochamh vandalized Dr. Shahsavari's car by scratching it with a key. Dr. Abochamh could not recall the reason why he vandalized Dr. Shahsavari's car. Dr. Shahsavari maintains that the incident was a result of Dr. Abochamh's perception that he was not receiving the referrals from Dr. Shahsavari that he deserved.² Dr. Abochamh self-reported the incident, and the hospital placed him on a six week leave of absence and requested that he undergo psychiatric evaluation and counseling for anger management. After his return to Norman Regional in early 2004, Dr. Abochamh's sponsoring physician terminated his relationship with him and asked him to leave Norman Regional. Dr. Abochamh subsequently left and now practices medicine in Port Arthur, Texas. Although the trial judge interrupted the doctor's counsel in the middle of introducing this evidence and warned her out of the hearing of the jury that the court had had enough of it and she was ". . . just beating it to death,"³ the judge did not prevent Dr. Shahsavari from fully introducing evidence of the incident.

¶ 8 At the close of argument, the court presented the Jury with several instructions. Instruction Number 15 (Oklahoma Uniform Jury Instruction 14.3) provided:

Alternative Methods of Diagnosis or Treatment

Where there is more than one medically accepted method of diagnosis, a physician has the right to use his best judgment in the selection of the diagnosis, after securing the informed consent of the patient, even though another medically accepted method of diagnosis might have been more effective. OUJI 14.3

The widow objected to the inclusion of Instruction Number 15 on the grounds that she felt the case did not involve a choice of diagnosis, but a failure to take any diagnostic action whatsoever. The trial court overruled the objection and included Instruction Number 15.

¶ 9 On February 15, 2005, the jury returned a 9-3 verdict in favor of Dr. Shahsavari. On March 10, 2005, the widow filed a Motion for New Trial. The trial court heard argument on the widow's motion on April 12, 2005, and granted the motion on May 17, 2005. The trial judge listed the following errors in the Order Granting Plaintiff's Motion for New Trial: 1) admitting evidence of Dr. Abochamh's vandalism of Dr. Shahsavari's automobile; 2) not excusing juror O'Neill for cause; and 3) giving Jury Instruction Number 15, where the case did not involve choices of method of diagnosis. The Order's closing provides in pertinent part:

. . . By reason whereof, Plaintiff was denied a fair trial, and, although the Court cannot say that the outcome would have been different if the Court had not made the aforementioned errors, the Court believes that both parties, including the Plaintiff, should have a fair trial.

¶ 10 Dr. Shahsavari appealed, and on April 25, 2006, the Court of Civil Appeals reversed and remanded, finding that the trial judge abused its discretion in granting the widow's motion for a new trial. We granted certiorari on June 26, 2006.

¶ 11 THE TRIAL COURT DID NOT ERR BY GRANTING THE MOTION FOR A NEW TRIAL.

¶ 12 The doctor argues that the trial court erred by granting a new trial because: 1) any alleged error that occurred was harmless and, thus, could not serve as the basis for granting a new trial; and 2) the trial court did not make the requisite finding that the outcome of the trial would have differed but for the alleged errors. The doctor insists that the trial court admitted to the absence of a lawful reason to grant a new trial. Taliaferro counters that the trial court did not err by granting the motion for a new trial because even if an individual error was insufficient to require a new trial, the cumulative effect of all of the errors resulted in an unfair trial.

¶ 13 The right of a party to a fair trial is preserved by 12 O.S.2001 § 651 which provides in pertinent part:

A. A new trial is a reexamination in the same court, of an issue of fact or of law or both, after a verdict by a jury, the approval of the report of a referee, or a decision by the court. The former verdict, report, or decision shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of the party:

1. Irregularity in the proceedings of the court, jury, referee, or prevailing party, or any order of the court or referee, or abuse of discretion, by which the party was prevented from having a fair trial. . . .

When a party is prevented from having a fair trial as a result of an error which materially affects the substantial rights of the party, a new trial is required.⁴ Reversible error has been held to be an error that creates a probability of change in the outcome of the lawsuit.⁵

¶ 14 This Court has long recognized that a trial court is vested with wide discretion as to whether to grant a new trial.⁶ The burden to establish a trial court's abuse of discretion in granting a new trial rests with the appellant.⁷ However, when a trial court's decision...