Randolph v. ER Arkansas, P.A.

Ophelia RANDOLPH, Administratrix of the
Estate of Melvalene Hanson, Deceased v. ER
ARKANSAS, P. A., James Guthrie, Ouachita
Clinic, Ltd., J. R. Kendall and Judson M.
Hout

95-968                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 15, 1996


1.   Jury -- appellant has burden of proving venireman unqualified
     -- test used for juror bias determination. -- It is presumed
     that persons comprising the venire are unbiased and qualified
     to serve, and it is appellant's burden to prove otherwise; the
     proper test that the court must employ when sorting through
     juror-bias issues is whether the prospective juror can lay
     aside his impression or opinion and render a verdict based
     upon the evidence in court. 

2.   Jury -- juror qualification within trial court's discretion --
     when trial court will be reversed. -- The qualification of a
     juror is within the sound discretion of the trial court, which
     has an opportunity to observe the venire members that the
     appellate court does not have; the trial court will not be
     reversed unless the appellant demonstrates an abuse of
     discretion; here, the trial court followed the correct test in
     its voir dire of the juror and acted well within its
     discretion to permit her to serve.  

3.   Jury -- no error to refuse proffered non-AMI instruction --
     language in instruction that was allowed more than sufficient.
     -- The duty the defendants owed the deceased in this medical
     negligence case was covered by AMI 1501, as given; it is not
     error to refuse a proffered non-AMI instruction, even if it
     correctly states the law; the same or similar locality rule
     articulately expressed in AMI 1501 is proper, adequate, viable
     and not unduly restrictive on the evidence a plaintiff may
     introduce; accordingly, the language contained in AMI 1501 was
     found to be more than sufficient to have permitted the
     decedent's estate to develop the evidence and argue to the
     jury that her expert was entitled to credence based on his
     familiarity with similar localities in terms of medical
     facilities, practices, and advantages.


     Appeal from Ouachita Circuit Court; Carol Crafton Anthony,
Judge; affirmed.
     Gary Eubanks & Associates, by:  James Gerard Schulze and Hugh
F. Spinks, for appellant.
     Shackleford, Phillips, Wineland, & Ratcliff, P.A., by:  Dennis
L. Shackleford and Teresa Wineland, for appellees.

     Tom Glaze, Justice. 
     *ADVREP*SC8*



OPHELIA RANDOLPH,
Administratrix of the Estate of
MELVALENE HANSON, DECEASED,
                    APPELLANT,

V.

ER ARKANSAS, P.A., JAMES
GUTHRIE, OUACHITA CLINIC, LTD.,
J. R. KENDALL and JUDSON N.
HOUT,
                    APPELLEES.



95-968

Opinion Delivered:  7-15-96

APPEAL FROM THE CIRCUIT COURT
OF OUACHITA COUNTY, ARKANSAS,
NO. CIV-92-166; HONORABLE CAROL
CRAFTON ANTHONY, JUDGE




AFFIRMED


                  TOM GLAZE, Associate Justice

     This action was brought as a result of alleged medical
malpractice that resulted in the wrongful death of Melvalene
Hanson.  Hanson's estate sued appellees, alleging Hanson had
complained of chest and arm pains, and after having been examined
and released by Doctors J. R. Kendall and Judson Hout on two
separate occasions within four days, she died of a heart attack at
home only a few hours after her second release from treatment.  The
gravamen of the estate's allegations of medical negligence was that
the doctors failed to perform an electrocardiogram (EKG).  
     Before trial and during voir dire of the jury, a number of
veniremembers indicated they knew the doctors, and the estate moved
to disqualify those potential jurors who had had (or had) a
relationship with them.  One of those jurors, Melba George, served
on the twelve-person jury, and is the subject of one of the points
for reversal in this appeal.  The estate's second issue for
reversal concerns its out-of-state expert witness, Dr. James
Goldstein, who testified that an EKG was essential in Hanson's
circumstances, and Doctors Kendall and Hout had deviated from the
standard of good medical care when no EKG was performed.  Because
the defense focused on Goldstein's lack of familiarity with the
standard of care in Camden, Arkansas, the estate offered, and was
denied, an instruction it believed would have better explained the
so-called "locality rule" instruction the trial court gave the
jury.  The jury retired and returned a verdict in favor of the
defendants, and the estate brings this appeal, asserting the two
points raised below.
     In the estate's first argument, it complains of seven
different veniremembers who had had some type of social, working,
or medical relationship with either Kendall or Hout.  Four of these
jurors did not serve on the jury, and several, who did serve, had
not been challenged peremptorily or for cause.  Suffice it to say,
the estate's argument centers on Melba George, who, the estate
suggests, was challenged for cause and wrongfully allowed to serve;
thus, we turn our attention to George.  In doing so, we keep in
mind the controlling principle that it is presumed that persons
comprising the venire are unbiased and qualified to serve, and it
is appellant's burden to prove otherwise.  Kemp v. State, 324 Ark.
178, 919 S.W.2d 943 (1996).  In addition, the proper test the court
must employ when sorting through these juror-bias issues is whether
the prospective juror can lay aside his impression or opinion and
render a verdict based upon the evidence in court.  Wainwright v.
State, 302 Ark. 371, 790 S.W.2d 420 (1990), cert. denied, 111 S. Ct. 1123 (1990).
     In the present case, the issue concerning Ms. George's bias
stems from a series of questions and answers during voir dire. 
George responded to the court's query, whether anyone had any kind
of ongoing business relationship with the defendants, by indicating
that Dr. Kendall was her doctor.  Ms. George had seen Dr. Kendall
within the previous two to three weeks, and was under his care. 
The following pertinent colloquy took place.
     Estate's attorney:  I'm going to ask you the pertinent
     questions that I asked Mr. Philyaw about having to sit
     here and make a decision that would potentially adverse
     your doctor then going back to seek him in the future,
     would that make it difficult for you to be fair in a case
     like this for Ms. Randolph?
     George:  I believe it would because I have to depend on
     him to tell me what I need to do to keep me living.
     Estate's attorney:  So, what you're telling us, as I
     understand it, is that because of that relationship, even
     though you would try it would be very difficult and in
     all probability you could not be fair because of that
     relationship?
     George:  (No response.)
     Court:  In other words, you can't listen to the evidence
     and decide this strictly on what you hear in the
     courtroom?
     George:  I could do that.  But if it causes me to doubt
     my doctor in any way, I don't know if I could go back to
     him.
     Court:  Well, this is different -- All I want to know
     from you, ma'am, and from each of you, maybe we can get
     this out here right now, for those of  you who are
     patients at the clinic with Doctor Hout or Doctor Kendall
     what we are asking, and I think we've asked it once
     before, your job as a juror if you are selected to serve
     is to try this case strictly on the evidence that's
     presented from the witness chair and whatever exhibits
     are introduced, that and only that, and what we are
     asking is can you do that, be fair to both sides?  You
     start out as if not knowing anything about this
     particular case and try it simply on the evidence that's
     presented from the witness chair and the law as I give it
     in the form of instructions?
     George:  Yes.
     George's initial response to the estate's voir dire raised the
question of whether she could serve fairly, and the trial court
properly pursued that matter, by asking if George could listen to
the evidence and strictly decide the case on what she heard in the
courtroom.  George said that she could do that.  Any reservations
expressed by George in her response dealt only with her declaration
that "if it causes me to doubt my doctor in any way, I don't know
if I could go back to him."  George, then again, told the court she
could decide the case based strictly on the evidence and law
presented in the courtroom.  It has long been held that the
qualification of a juror is within the sound discretion of the
trial court, which has an opportunity to observe the venire members
that the appellate court does not have, and the trial court will
not be reversed unless the appellant demonstrates an abuse of
discretion.  Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983);
Rumping v. Arkansas National Bank, 121 Ark. 202, 180 S.W. 749
(1915).  Here, the trial court followed the correct test in its
voir dire of George, and acted well within its discretion to permit
George to serve.  
     Before leaving the estate's first point, we acknowledge its
argument for us to adopt a line of Alabama cases that hold the
relationship of physician and patient constitutes prima facie
evidence of probable prejudice on the part of the veniremember. 
Dixon v. Hardey, 591 So. 2d 3 (Ala. 1991); see also Boykin v.
Keebler, 648 So. 2d 550 (Ala. 1994); Bell v. Vanlandingham, 633 So. 2d 454 (Ala. 1994);  Wright v. Holy Name of Jesus Medical
Center, 628 So. 2d 510 (Ala. 1993); Roberts v. Hutchins, 613 So. 2d 348 (Ala. 1993).  We reject such suggestion, first, because we
believe Arkansas's established law in questioning prospective
jurors for bias is relevant and effective regardless of whose
relationship or purported bias might be in issue.  Second, the
Alabama cases cited by the estate, in our view, would not avail the
estate here a different result in any event.  The Alabama Supreme
Court specifically refused to adopt an absolute rule of exclusion
where a patient may never serve as a juror in a case against his or
her physician.  Dixon, 591 So. 2d  at 8.  Instead, the Alabama court
has said that, once prima facie evidence of prejudice on the part
of a potential juror has been presented, it is the trial court's
function to question the juror further, so as to ascertain whether
the juror can be impartial, Id. at 7, and the appellate court looks
at the questions asked and the answers given to determine whether
the trial court abused the discretion reserved to it.  Wright, 628 So. 2d  at 513.  In the circumstances now before us, the trial court
did a thorough job in questioning and testing Ms. George's possible
bias, and whether analyzed under Arkansas's or Alabama's law, we
conclude the trial court did not abuse its discretion in allowing
her to serve.  
     The estate's second argument concerns the trial court's
refusal to give a proffered instruction the estate claims would
have clarified AMI 1501, which reads in relevant part as follows:
          In diagnosing the condition of and treating of a
     patient, a physician must possess and apply with
     reasonable care the degree of skill and learning
     ordinarily possessed and used by members of his
     profession in good standing engaged in the same type of
     service or specialty in the location in which he
     practices or in a similar locality.  A failure to meet
     this standard is negligence.
     Because defendants focused on the estate's expert's (Dr.
Goldstein's) lack of familiarity with the Camden area and its
medical services, the estate, citing to language employed in
Gambill v. Stroud, 258 Ark. 767, 531 S.W.2d 945 (1975), proffered
the following instruction, which it argues explains the "similar
locality" language in AMI 1501:
          In these instructions, when I have used the
          words "the same or similar locality" the
          similarity of communities should not depend on
          population or area but rather upon their
          similarities from the standpoint of medical
          facilities, practices, and advantages.
     We dispose of the estate's argument, first, by stating that
AMI 1501, as given, covers the duty the defendants owed Hanson in
this medical negligence case, and it is not error to refuse a
proffered non-AMI instruction, even if it correctly states the law. 
See Wharton v. Bray, 250 Ark. 127, 464 S.W.2d 554 (1971).  In
addition, this court has expressly stated that the same or similar
locality rule articulately expressed in AMI 1501 is proper,
adequate, viable and not unduly restrictive on the evidence a
plaintiff may introduce.  Gambill, 258 Ark. at 769, 531 S.W.2d  at
948.  Accordingly, we believe the language contained in AMI 1501 is
more than sufficient to have permitted the Hanson estate to develop
the evidence and argue to the jury that her expert was entitled to
credence based on his familiarity with similar localities in terms
of medical facilities, practices and advantages.
     For the reasons set out hereinabove, we affirm.
     DUDLEY, J., not participating.