KRISTEN NICOLE BOWMAN, BY AND THROUGH HER NEXT FRIEND AND MOTHER, CHRISTINA MARIA BOWMAN V MICHAEL PERKINS, M .D . ; BERNARD C . MOSES, M .D . ; AND BERNARD C . MOSES, M .D ., P .S .C .
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2002-SC-0061-DG
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KRISTEN NICOLE BOWMAN, BY AND
THROUGH HER NEXT FRIEND AND
MOTHER, CHRISTINA MARIA BOWMAN
V
ON REVIEW FROM COURT OF APPEALS
2000-CA-1741-MR
WHITLEY CIRCUIT COURT NO. 98-CI-0161
MICHAEL PERKINS, M.D. ;
BERNARD C . MOSES, M.D. ; AND
BERNARD C . MOSES, M.D., P.S .C .
APPELLEES
OPINION OF THE COURT BY JUSTICE STUMBO
REVERSING AND REMANDING
The appellant, Kristen Nicole Bowman, by and through her next friend and
mother, Christina Maria Bowman, brought a medical malpractice action in the Whitley
Circuit Court against the appellees, Dr. Michael Perkins, Dr . Bernard C . Moses, and
Bernard C. Moses, M.D., P .S .C . (Dr. Moses' Medical Clinic), alleging, inter alia , that the
prescription drug Decadron LA was administered to her negligently . At the close of
Bowman's case, a verdict was directed in favor of Dr. Moses individually . Following
trial, the jury reached a verdict of nine to three in favor of Dr. Perkins and Dr. Moses'
Medical Clinic . Thereafter, Bowman appealed the adverse decision to the Court of
Appeals, which was affirmed . Bowman then sought discretionary review before this
Court, which was granted . This appeal followed .
Three key issues are presented :
i . Whether the appellees herein had antagonistic interests, thereby entitling them
to separate peremptory challenges pursuant to CR 47 .03;
II . Whether a current, ongoing physician-patient relationship necessitates a
presumption of juror bias; and,
III . Did the trial court err in limiting cross-examination of Dr . Perkins .
For the reasons set forth in the remainder of this opinion, we reverse and remand
for a new trial .
1.
The first issue is whether the appellees had antagonistic interests under CR
47 .03, thereby entitling each to four peremptory challenges. CR 47 .03(1) provides that
"[i]n civil cases each opposing side shall have three peremptory challenges, but co
parties having antagonistic interests shall have three peremptory challenges each ."
Part (2) of the rule provides that "[i]f one or two additional jurors are called, the number
of peremptory challenges for each side and antagonistic co-party shall be increased by
one ."
Dr. Moses' Clinic and Dr. Moses himself were collectively granted four
peremptory challenges by the trial court. Four peremptory challenges were granted to
Dr. Perkins as well . Bowman objected to these peremptory challenges . Bowman's
position was that the appellees should only receive four peremptory strikes together . In
support of this position, Bowman contended that the appellees shared the same
interests . She argued that the appellees defended each other in their respective pretrial
memorandums and, also, that there had been no cross-claims . The trial judge did not
agree with Bowman's position and stated that he was convinced that there were
antagonistic positions present .
The Court of Appeals affirmed the trial court and concluded that "there was a
sufficient antagonistic interest shown between the [appellees] at the time of jury
selection to warrant giving the additional peremptory strikes ." In support of its
conclusion, the court set forth the following rationale :
We believe that the requirement that the parties be antagonistic does not
preclude their being in agreement on some points of proof. This was not a
case of identical trial positions. Because [Bowman] sought to show that
Dr. Perkins administered Decadron LA as a result of a policy or pattern of
giving that medication to children in Dr. Moses' medical office, appellees
were placed in opposition to each other. It became necessary for Dr.
Moses to disclaim responsibility for the actions taken by Dr. Perkins in the
event Dr. Perkins was found to have deviated from the standard of care . If
Dr. Moses could show that there was no issue of agency in his
relationship with Dr. Perkins, he had no need to establish that Dr. Perkins'
actions were within the standard of care . At trial, Dr. Moses plainly
attempted to distance himself from the medical decisions of Dr. Perkins by
establishing that Dr. Perkins was in charge of his own medical practice
and did not take instruction from Dr. Moses .
We agree with the Court of Appeals' decision regarding the trial court's allocation of the
peremptory challenges and adopt the preceding rationale . Furthermore, we find no fault
in the fact that no cross-claims were filed in this case . Cross-claims, or the absence
thereof, are but one factor to be considered, and are "not dispositive of the issue of the
existence of antagonistic interests ." Davenport v. Ephraim McDowell Mem'l Hosp, Inc,,
Ky. App ., 769 S .W.2d 56, 59 (1988) .
The trial judge did not abuse his discretion and the Court of Appeals' decision
regarding the peremptory challenges was proper . There was no error.
11 .
At trial, Bowman challenged for cause all jurors who were current patients of the
appellees . Specifically, Juror No . 60 stated that he was a current patient of Dr. Moses .
Juror No . 7 indicated likewise . Bowman exercised one of her four peremptory
challenges as to Juror No. 60. However, Juror No. 7 was not removed, sat on the jury,
and consequently was among the nine jurors who rendered a verdict in the appellees'
favor.
The Court of Appeals found no reversible error in the trial court's failure to
excuse for cause the two aforesaid jurors. Bowman now seeks reversal on this issue.
She argues that the trial court should have presumed bias as to those prospective jurors
who were current patients of Dr. Moses, thereby requiring their removal for cause. As a
result, Bowman contends that she was prejudiced as she would have used a
peremptory challenge to remove a prospective juror other than Juror No. 60 . We agree .
In Altman v. Allen , Ky ., 850 S .W.2d 44 (1992), we concluded that there was "no
basis for an automatic presumption of bias on the part of jurors toward a former
physician ." Id . at 46. Also, we determined that there was no evidence of a close
relationship between the jurors and the defendant physicians . Id. at 45-46 . The Court
of Appeals relied on Altman in its decision to affirm the trial court on the present issue.
However, such reliance was misplaced because, unlike the jurors in Altman , the jurors
in question here are current patients of a defendant physician, not former ones.
A trial court enjoys wide discretion in ruling upon challenges of prospective jurors
for cause . Commonwealth, Dep't of Highways v. Devillez, Ky., 400 S.W.2d 520, 521
(1966) . On the other hand, "[t]he prevailing rule is that a juror should be disqualified
when the juror has a close relationship with a victim, a party or an attorney, even if the
juror claims to be free from bias ." Butts v. Commonwealth , Ky., 953 S.W.2d 943, 945
(1997). A trial court should presume the possibility of bias of a juror if said juror has "a
close relationship, be it familial, financial or situational, with any of the parties, counsel,
victims or witnesses," regardless of the answers said juror may give during voir dire .
Ward v. Commonwealth , Ky., 695 S.W.2d 404, 407 (1985) (quoting Commonwealth v.
Stamm, 429 A.2d 4, 7 (Pa . Super. Ct. 1981)) . "Once that close relationship is
established, without regard to protestations of lack of bias, the court should sustain a
challenge for cause and excuse the juror." Id .
In our view, a current and ongoing physician-patient relationship is such a close
relationship where a trial court should presume the possibility of bias. For that reason,
we hold that a prospective juror who is a current patient of a defendant physician in a
medical malpractice action should be discharged for cause .
The physician-patient relationship is one that is built on trust and confidence .
Just as a person seeks the professional judgment of an attorney in personal legal
matters, a person seeks the professional judgment of a physician in matters related to
his or her personal health and wellness . In Jones v. Shea , 532 A.2d 571, 573 (Vt.
1987), the Vermont Supreme Court recognized this trust that a patient places in his or
her physician . Additionally, while one may posit that this relationship is not as strong as
in years past, "it still has considerable strength ." Margin v. Kipfer , 454 N . E .2d 370, 372
(III. App . Ct. 1983) . We find this to be particularly true of this state's rural areas where
there may only be one or two physicians serving a whole county.
We must bear in mind that "a party charged with a criminal offense is entitled to
be tried by a fair and impartial jury composed of members who are disinterested and
free from bias and prejudice, actual or implied or reasonably inferred ." Tayloe v.
Commonwealth , Ky., 335 SW.2d 556, 558 (1960) . While Bowman is a civil litigant and
not a criminal defendant, she is no less entitled to an impartial jury.
The possibility of empanelling a prejudiced jury is too great if a prospective juror,
who has a close relationship with a party, is allowed to sit. In Riddle v. Commonwealth ,
Ky. App ., 864 S.W.2d 308 (1993), the Court of Appeals determined that prospective
jurors who had a previous professional relationship with a prosecuting attorney, and
who further stated they would pursue such a relationship in the future, should be
disqualified for cause by the trial court. We expressly agreed with Riddle in Fuc ag to v.
Commonwealth, Ky., 993 S .W.2d 931, 938 (1999) . If a prospective juror should be
excused for cause when he or she intends to pursue a future relationship with an
attorney, it is our belief that common sense dictates disqualification of a juror who has a
present, ongoing physician-patient relationship with a defendant physician in a medical
malpractice action . There need not be a showing of actual bias where, as here, bias is
clearly implied by the personal relationships .
It was reversible error for the trial court not to dismiss the prospective jurors who
were current patients of Dr. Moses. Consequently, Bowman suffered prejudice as she
could have exercised a peremptory challenge on another juror. See Fu ate, supra .
Accordingly, we reverse for a new trial.
III.
Bowman also complains that the trial court erred in not allowing her to crossexamine Dr. Perkins by using portions of the discovery deposition of Dr. Perkins' expert
witness. However, Bowman did not introduce this deposition into evidence . Nor did
she question Dr. Perkins via avowal concerning the relevant portions of the deposition.
The Court of Appeals declined to review this issue .
Bowman asserts that an avowal is not necessary when there is sufficient
evidence to review an issue . However, in Commonwealth v. Ferrell , Ky., 17 S.W.
3d 520, 525 (2000), we specifically held that "a party must offer an avowal by the
witness in order to preserve for appellate review an issue concerning the
exclusion of evidence ." Absent an avowal, we are simply not able to determine
how Dr. Perkins would have responded to questions pertaining to his expert's
deposition . Therefore, Bowman's failure to offer an avowal or otherwise
introduce the relevant portions of the expert's deposition into the record makes it
impossible for us to review the allegation of error. Thus, this issue is not properly
preserved for appellate review and we need not address it further .
For the reasons set forth above, this cause is remanded to the Whitley
Circuit Court for a new trial against Dr. Perkins and Bernard C . Moses, M .D .,
P .S.C ., in conformity with the views expressed herein .
Lambert, C .J., and Cooper, J ., concur. Keller, J., joins as to Parts I and III,
but, by separate opinion, concurs in result only as to Part II . Johnstone, J .,
dissents by separate opinion, with Graves and Wintersheimer, JJ., joining that
dissent.
COUNSEL FOR APPELLANT :
James D . Decker
1099 South Broadway, Suite B
Lexington, KY 40504
COUNSEL FOR APPELLEE,
MICHAEL PERKINS, M.D. :
John T . Pruitt, Jr.
Travis, Pruitt & Lawless
207 East Mt. Vernon Street
P.O. Drawer 30
Somerset, KY 42502-0030
Heidi Schultz Powers
Travis, Pruitt, Lawless, Powers & Yeast
207 East Mt. Vernon Street
P .O. Drawer 30
Somerset, KY 42502-0030
COUNSEL FOR APPELLEES,
BERNARD C . MOSES, M .D. and
BERNARD C . MOSES, M .D ., P .S .C . :
John G . Prather, Jr.
Law Offices of John G. Prather
P.O. Box 616
48 N . Public Square
Somerset, KY 42502-0616
Winter Huff
Law Offices of John G. Prather
P.O. Box 616
Somerset, KY 42502-0616
RENDERED : MARCH 18, 2004
TO BE PUBLISHED
,$ixyrnttt 01outi of AettfurkV
2002-SC-0061-DG
KRISTEN NICOLE BOWMAN, BY AND
THROUGH HER NEXT FRIEND AND
MOTHER, CHRISTINA MARIA BOWMAN
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2000-CA-1741-MR
WHITLEY CIRCUIT COURT NO . 98-CI-0161
MICHAEL PERKINS, M.D. ;
BERNARD C. MOSES, M .D. ; AND
BERNARD C. MOSES, M.D., P .S .C .
APPELLEES
CONCURRING OPINION BY JUSTICE KELLER
I join Parts I and III of the majority opinion, but concur only in the result reached
in Part II, and I write separately in order to explain my views . Although I agree with the
majority opinion's conclusion that the trial court erred in failing to excuse Jurors No . 7
and 60 for cause, I find it significant that Juror No . 60 was removed with a peremptory
challenge and did not sit on the jury. Accordingly, for reasons that I have explained
previously in my dissenting opinions in Gamble v. Commonwealth , Ky., 68 S .W.3d 367,
374-5 (2002) and Stopher v. Commonwealth , Ky., 57 S .W.3d 787, 813-17 (2001), the
trial court's error in failing to excuse Juror No. 60 for cause was harmless. I concur in
the majority opinion's holding that reverses this case for a new trial, however, because
Juror No. 7 did sit on the jury, and Appellants were thus prejudiced by the trial court's
erroneous failure to excuse Juror No . 7 .
RENDERED : MARCH 18, 2004
TO BE PUBLISHED
,Sixyreme C~0ixrf of gtrufurhV
2002-SC-0061-DG
KRISTEN NICOLE BOWMAN, BY AND
THROUGH HER NEXT FRIEND AND
MOTHER, CHRISTINA MARIA BOWMAN
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2000-CA-1741-MR
WHITLEY CIRCUIT COURT NO . 98-CI-0161
MICHAEL PERKINS, M .D. ;
BERNARD C. MOSES, M.D. ; AND
BERNARD C. MOSES, M.D., P.S.C .
APPELLEES
DISSENTING OPINION BY JUSTICE JOHNSTONE
Respectfully, I dissent from that portion of the majority opinion that holds that "a
current and ongoing physician-patient relationship is such a close relationship where a
trial court should presume the possibility of bias." Slip op. at 5 . The following is the
entirety of the voir dire conducted of the two jurors at issue :
JUROR NO. 60
JUROR NO. 60 : But he is my doctor .
MR . DECKER: Who is your doctor?
JUROR NO . 60 : Dr. Moses.
MR . DECKER: And what number were you?
THE COURT: Let me interject one thing, Mr. Decker, if I may.
Ladies and gentlemen of the jury panel, you're a fairly new panel to
the trials and I think I've mentioned this to you before, but let me reiterate
to you that there are certain cases that all of you will be qualified to sit on,
then there are certain cases for something in your background that would
disqualify you for one particular case, and if that is the case please let us
know early so we can go ahead with the jury selection . So, if there's
something that would cause you to lean one way or the other, just let us
know that and then we can go on . With that said, continue, Mr. Decker.
MR. DECKER: Thank you, your Honor .
Number 60, given that Dr. Moses, how long has he been your
doctor, sir?
JUROR NO. 60 : Ever since he's been a doctor, I guess.
MR . DECKER: Do you think that that might tend to make you lean
just a little bit in his favor, based upon the evidence? If it was an equal
question would you lean just because that he'd been your doctor for many
years?
JUROR NO. 60: No, sir.
MR. DECKER: You don't think so? Okay.
JUROR NO . 7
THE COURT: Juror No . 7, let me ask you first if you've listened to
all the questions that have been asked up to this point? Would you have
answered yes to any of those questions?
JUROR NO. 7: Doctor Moses is my doctor.
THE COURT: Dr. Moses is your doctor? Would the fact that
Doctor Moses is your doctor cause you to be, and we use the term "bias,"
favor the doctor more than the other party? All right . You may continue,
Mr. Decker .
MR. DECKER: Thank you, your Honor.
The majority attempts to distinguish the case of Altman v. Allen, Ky., 850 S .W.2d
44 (1992), by noting that the jurors in question here are current patients of a defendantphysician, not former ones . However, the majority overlooks the following analysis by
Justice Wintersheimer in Altman :
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 .
Altman , 850 S.W .2d at 45.
The same is true here . There was no attempt by appellant's counsel to
determine whether the relationship between doctor and patient was good or bad . How
frequent was the treatment rendered by the doctor to the patient? Did the patient feel
the treatment rendered was appropriate and competent?
Moreover, the majority's attempt to compare the doctor-patient relationship to the
attorney-client relationship is questionable in the current state of medical treatment .
While a legal client continues to seek out and retain an attorney of his or her choice, the
same is not always true of the doctor-patient relationship . Medical choice is often
insurance driven . Patients are often compelled to choose a doctor listed on the
"provider list" supplied by the insured's carrier, even the latter not always the first choice
of the patient . And there is nothing more harmful to a good doctor-patient relationship
than languishing in an overcrowded waiting room of a doctor that the patient was
compelled to choose. As the majority states, "one may posit that this relationship is not
as strong as in years past . . . ." Slip op. at 5 .
I enthusiastically agree that there are those situations where a juror should be
disqualified when the juror has such a close relationship with a party despite the juror's
claim to be free from bias. I also concur with the proposition that the trial courts enjoy
wide discretion in ruling upon challenges of prospective jurors for cause . However, I
cannot agree that the circumstances before us in this case, namely, the bare fact that a
juror is a current patient of a party doctor, is a basis for automatic presumption of bias
and a per se disqualification . We never held so in years past when the doctor-patient
relationship was at its strongest, and we should not so hold now. Rather, we should
leave the question to our seasoned trial judges who know that the magic answer is not
a cure for real bias.
Graves and Wintersheimer, JJ ., join this dissent .
,Supxaar Qlaurf of ~mfurkg
2002-SC-0061-DG
KRISTEN NICOLE BOWMAN, BY AND
THROUGH HER NEXT FRIEND AND
MOTHER, CHRISTINA MARIA BOWMAN
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2000-CA-1741-MR
WHITLEY CIRCUIT COURT NO. 98-CI-0161
MICHAEL PERKINS, M .D . ;
BERNARD C. MOSES, M .D. ; AND
BERNARD C. MOSES, M .D ., P .S.C.
APPELLEES
ORDER DENYING PETITION FOR REHEARING
AND
GRANTING MODIFICATION OF OPINION
The petition for rehearing is denied . The Opinion of the Court rendered
March 18, 2004, in the above styled case is hereby amended with the substitution of
pages one and seven attached hereto . The correction of these pages do not change
the holding of this opinion.
All concur.
ENTERED: June 17, 2004 .
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