Altman v. Allen

WINTERSHEIMER, Justice. This appeal is from a decision of the Court of Appeals which reversed the judgment of the circuit court in which the trial judge refused to strike three jurors for cause who had been former patients of either Dr. Altman or Dr. Mulliken. The sole question is the propriety of the refusal of the trial judge to strike the three jurors who were former patients of either doctor. This medical malpractice action was filed in 1987 and alleged negligence in the treatment of Allen in the weeks following his premature birth in 1972. The Court of Appeals reversed the judgment of the circuit court pursuant to a 9-3 jury verdict for the defendant doctors following an 8-day trial in 1990. Allen, who weighed approximately 3 pounds at birth, was confined to an Isolette because his lungs were underdeveloped, and in order to survive, he needed oxygen therapy. The hospital had no pediatrician on staff and as a result, Drs. Altman and Mulliken, the obstetrician/gynecologists who delivered Allen, attended him during the two months he was hospitalized following birth. The Isolette was not equipped to measure the concentration of oxygen within it; however, it was equipped to divert the excess oxygen into the room if the oxygen concentration in the Isolette exceeded 40 percent. The hospital did not have means available to measure arterial blood gas levels. The hospital settled prior to the beginning of trial. [45] The basis of the complaint by Allen is that as a result of the improper administration of high concentrations of oxygen, he suffered a condition known as retrolental fibroplasia, which rendered him legally blind. The Court of Appeals opinion concluded that there was a special bond between obstetricians/gynecologists and their former patients and that the trial judge had abused his discretion in not excusing for cause three prospective jurors who were formerly patients of the doctors. The jury included five former patients of the doctors, although only three were challenged for cause. Of the three challenged, one juror had been a patient for over 20 years and until the year before the trial, when the physician retired. A second juror had been a patient for twenty-five years. The third juror had been treated by both physicians several years earlier and the care had included delivering her twins 12 years before trial, plus a third child seven years before trial. All three of the prospective jurors indicated on voir dire that their prior relationships as patients would not affect their ability to render a fair and impartial verdict or a verdict against these physicians. The trial judge denied the challenges for cause. Two of the challenged former patients were among the nine jurors who rendered a verdict for the physicians and one of the challenged former patients did .not vote for the verdict. Of the two former patients who were not challenged, one also voted against her former doctors. The Court of Appeals determined that the three jurors who were challenged for cause were biased as a matter of law because they were former patients of the doctors. The court reasoned that although none of the jurors were patients of the doctors at the time of trial, the relationship between a woman and her obstetrician/gynecologist was so close as to destroy juror impartiality. This Court granted discretionary review. The trial judge did not commit reversible error or abuse his discretion because he refused to excuse three jurors simply because they were former patients of the doctors. The Court of Appeals attempted to distinguish the case of Mackey v. Greenview Hospital, Inc., Ky.App., 587 S.W.2d 249 (1979) on the basis that the medical relationship of the jurors with their obstetrician/gynecologist formed such a bond as to render juror bias as a matter of law. Mackey, supra, held that it was not reversible error to overrule a challenge for cause when there was no current or continuing professional relationship between the juror and physician involved in the ease. A careful review of the record in this case indicates there is no basis for a “presumed bias” theory. There is no foundation to establish a per se exclusion and no proof has been presented to establish bias. During the voir dire examination, there was no comprehensive effort to explore or develop the doctor/patient relationships of the three jurors to the extent necessary to determine bias. There is no evidence that the jurors were frequent patients or that they even had a good relationship with the doctors. There were no scientific treatises or other expert testimony introduced to support the theory of obstetrician-patient bonding. Consequently, the trial judge did not abuse his discretion in refusing to excuse the jurors for cause. Our decision in this case involves a comparison of Mackey, supra, and Davenport v. Ephraim McDowell Memorial Hospital, Ky.App., 769 S.W.2d 56 (1988). As noted earlier, Mackey involves a similar situation where three prospective jurors in a medical malpractice case revealed during voir dire that they had prior professional relationships with one or more of the doctors in the case. Davenport, supra, is cited for the proposition that where there is a close relationship between a prospective juror and a party, possible bias cannot be ignored, and that where such a relationship is present, there is a presumption of bias that must be recognized regardless of the answers of the prospective juror on voir dire. See also Ward v. Commonwealth, Ky., 695 S.W.2d 404 (1985). [46] We believe that Mackey represents a more consistent starting point for consideration of this problem. As in Mackey, there was no current or continuing professional relationship between any of the jurors or members of their family with either of the doctors in this case. The jurors were carefully examined by counsel and the trial court. All noted their ability to render a fair and impartial verdict on the basis of the evidence. The relationship between the jurors and the physicians was not so substantial as to require a finding that the jurors were biased and unable to afford the plaintiff a fair trial. Cf. Whitney v. Louisville & Nashville Railroad Co., 296 Ky. 381, 177 S.W.2d 139, (1944). The evidence in the record in this case does not support any other conclusion. As indicated earlier, two of the five former patients who actually sat on the jury, voted against their former doctors. We do not preclude the situation in which there is evidence of a bias, but it cannot be presumed on this record. We do not believe Ward v. Commonwealth, supra, or Davenport, supra, are applicable in this situation because there is no evidence that a close relationship was established in this case. As noted in Whitney, supra, the relationship described is too remote and unsubstantial to have authorized juror disqualification for cause or that there was any abuse of discretion in overruling the challenges for cause. No court should speculate so as to presume a special bond between a woman and her obstetrician. Similar and equally unwarranted presumptions could be made about psychiatrists, psychologists, clergy and other counsel-type relationships. It is best to leave such decisions in the hands of the trial judge who must properly exercise discretion. When such discretion is properly exercised, it must be given great weight. Support for such a proposition does not require lengthy citation. The trial judge has always been recognized as the person in the best position to determine whether a prospective juror exhibits bias or partiality which would require exclusion from the panel. Davidson v. Grigsby, Ky., 451 S.W.2d 632 (1970). There is no reason to disturb the discretion of the trial judge. There is no basis for an automatic presumption of bias on the part of jurors toward a former physician. The law cannot be expanded to such a degree. Convincing evidence must be presented to the trial judge to support such an argument. The decision of the Court of Appeals is reversed, and the judgment of the trial court is reinstated. STEPHENS, C.J., and REYNOLDS, SPAIN and WINTERSHEIMER, JJ., concur. LAMBERT, J., concurs by separate opinion in which STEPHENS, C.J., and REYNOLDS and SPAIN, JJ., join. LEIBSON, J., dissents by separate opinion. COMBS, J., not sitting.