Harold Price suffered from chronic kidney disease. In 2017, his nephrologist noted a possible lesion on his left kidney following an ultrasound. The doctor ordered an MRI and biopsy of that kidney. The MRI also revealed a lesion on the right kidney. A recommendation was made to obtain a repeat scan in six months.
Thereafter, Price was seen by Lovekar, who is a nephrologist. He also continued to see his family physician, Venkatesh. Price also consulted with Kalvakota, a urologist. He further underwent a kidney transplant evaluation at Ohio State University. The repeat scan of the right kidney was never obtained and, in February 2020, Price was diagnosed with metastatic kidney cancer. He died as a result of the cancer in July 2020.
The Estate filed its Ohio medical malpractice wrongful death action in 2021 alleging medical malpractice due to failure
to diagnosis the cancerous mass on Price’s right kidney. Following a jury trial, a verdict was returned in favor of all the defendants.
The Estate appealed, arguing that the trial court should have excused, for cause, four jurors because those jurors demonstrated they would not apply the correct burden of proof. The Estate argued that once a juror indicates that he
or she will not follow the law as instructed by the trial court, a subjective analysis of the juror’s willingness to follow the law is inappropriate; at this point, from the Estates perspective, there is no turning back and that juror is unsuitable to sit.
The Court of Appeals of Ohio Second Appellate District stated in its Opinion rendered on August 16, 2024: “a juror’s initial response to a question regarding the burden of proof or another legal topic is not fixed but instead is subject to change following further questioning and explanation. As such, we conclude that the appellate standard of review when evaluating a R.C. 2313.17(B)(9) challenge – whether for an inability to be fair and impartial or to follow the law — is the abuse of discretion standard. And, to the extent that R.C. 2313.17(B)(9) is considered, there is no dispute that the abuse of discretion standard is applicable.”
“Although each juror initially expressed a potentially troublesome opinion on the issues of favoring a party, the burden of proof, and the amount of damages to award, each later indicated he or she could be fair and impartial and would apply the law as instructed by the trial court. It is clear from the record that the trial court was observing the voir dire conducted by the attorneys and kept notes regarding the jurors’ responses to the questions asked during voir dire. Given its ability to observe each juror’s demeanor, the trial court was in a better position than this court to determine the credibility of the jurors regarding their willingness and ability to follow the law and otherwise be fair and impartial. Based on the record before us, we cannot say that the trial court abused its discretion as it related to Vance, Hicks, or Walters-Sens. Further, any error related to Kerns was not prejudicial.”
Source Estate of Price v. Kidney Care Specialist, L.L.C., 2024-Ohio-3122.
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