May 30, 2013

162017_132140396847214_292624_nIn an opinion filed on May 23, 2013, the Supreme Court of Kentucky (“Kentucky Supreme Court”) overturned a defense verdict in a medical malpractice case because the trial judge twice failed to remove jurors for cause when it was revealed that the first juror indicated an inability to be impartial because his son was employed with the parent corporation of the defendant hospital and the same juror stated doubt about his ability to be impartial, and the second juror stated that one of the defendant’s experts (an expert in obstetrics and gynecology) who testified at trial had delivered her two children. The Kentucky Supreme Court noted that the relationship between a doctor and a child-bearing patient may be presumed to be especially close and personal, and the juror offered no information indicating otherwise and her statements unequivocally and understandably indicated her reservations and reluctance.

However, the Kentucky Supreme Court stated it was not error for the trial judge to not remove for cause a juror who was a lawyer whose law firm had done legal work for the defendant’s parent corporation and his law firm also engaged in medical malpractice defense work. The Kentucky Supreme Court stated that “[a] prior attorney-client relationship between a juror and trial counsel does not create a presumption of bias, though such juror should be excused if he or she indicates the intent to seek a future attorney-client relationship.”

The Underlying Facts

A 20-year-old woman was 37 weeks pregnant when she began to experience abdominal pain on January 5, 2007. She was taken to the defendant hospital and was treated by one of the two defendant obstetricians. She visited the defendant hospital’s emergency room three times between January 5 and January 7, 2007, each time complaining of severe abdominal pain. She was sent home after the first two visits but admitted to the hospital on the evening of January 7.

On January 7, one of the defendant obstetricians ordered blood work that indicated an infection. The following morning, the other defendant obstetrician took over the woman’s care and induced labor that resulted in the delivery of a healthy baby daughter. However, the woman became very weak and continued to experience severe abdominal pain after the delivery. On January 8, 2007, exploratory surgery found a ruptured appendix and abscess. The woman developed acute respiratory distress syndrome and died as a result on February 1, 2007.

The woman’s parents subsequently filed a medical malpractice case against the hospital and the two obstetricians on behalf of the woman’s child and themselves. The medical malpractice jury returned a verdict in favor of the medical malpractice defendants and the plaintiffs appealed to the Kentucky intermediate appellate court, which affirmed the judgment in favor of the medical malpractice defendants.

In its decision, the Kentucky Supreme Court noted that a litigant’s exercise of peremptory strikes is a substantial right and that harmless error analysis is inapplicable where a peremptory strike is used to remove a juror who should have been excused for cause. The Kentucky Supreme Court therefore held in this case that because the medical malpractice plaintiffs used a peremptory strike to remove the first juror, who should have been removed for cause, and the medical malpractice plaintiffs exhausted their compliment of peremptory strikes and identified two sitting jurors whom they would have removed had any peremptory strikes remained, the decision of the intermediate appellate court was reversed, the judgment of the trial court was set aside, and the case was remanded to the trial court for further proceedings in accordance with its decision.

You can read the entire Kentucky Supreme Court opinion in this case by clicking here.

If you or a loved one have been injured as a result of medical malpractice in Kentucky or in another U.S. state, you should promptly seek to consult with a Kentucky medical malpractice attorney or a medical malpractice attorney in your state who may be willing to investigate your medical malpractice claim for you and file a medical malpractice case on your behalf, if appropriate.

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