TALIAFERRO v. SHAHSAVARI

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TALIAFERRO v. SHAHSAVARI
2006 OK 96
154 P.3d 1240
Case Number: 102225
Decided: 12/19/2006

THE SUPREME COURT OF THE STATE OF OKLAHOMA

SHERRY TALIAFERRO, Individually and as Personal Representative of the ESTATE OF GUS WILLIAM TALIAFERRO, SR., Deceased, Plaintiff/Appellee,
v.
MEHRAN SHAHSAVARI, M.D., Defendant/Appellant.

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV

Honorable Tom A. Lucas, Trial Judge

¶0 In October of 2003, Gus Taliaferro died of a heart attack after being released from the care of Dr. Mehran Shahsavari. The appellee, Taliaferro's widow, Sherry Taliaferro, brought a medical malpractice action against the appellant, Dr. Shahsavari. At trial, the jury found for Dr. Shahsavari, and the widow moved for a new trial. The trial judge, Honorable Tom A. Lucas, granted the motion based on: 1) failure to exclude evidence of a prior incident between Dr. Shahsavari and an expert witness; 2) failure to excuse a prospective juror for cause; and 3) utilization of an improper jury instruction. Dr. Shahsavari appealed. We hold that the trial court did not abuse its discretion by granting the motion for a new trial.

CERTIORARI PREVIOUSLY GRANTED;
COURT OF APPEALS OPINION VACATED;
TRIAL COURT AFFIRMED.

Danny Shadid, Oklahoma City, Oklahoma, for Plaintiff/Appellee.
G. Calvin Sharpe, Malinda S. Matlock, Oklahoma City, Oklahoma, for Defendant/Appellant.

KAUGER, J.:

¶1 The issue presented is whether the trial court erred in granting a new trial. We hold that it did not.

DISPUTED FACTS

¶2 On October 4, 2003, Gus Taliaferro, Sr. (Taliaferro/deceased) went to the Norman Regional Hospital Emergency Room complaining of shortness of breath and pain in his chest -- his second episode that week. Dr. Brent Wauters, an ER physician, advised him that his symptoms were the result of pre-existing emphysema and sent him home. On October 7, 2003, Taliaferro returned to the emergency room with the same symptoms. Dr. Thomas Ingmire, an emergency room physician, ordered an electrocardiogram, chest x-ray, and cardiac enzyme tests, each of which yielded normal results. Dr. Ingmire also administered two breathing treatments to Taliaferro and recommended that he be admitted for a cardiopulmonary work-up.

¶3 Taliaferro was admitted to the care of the appellant, Dr. Mehran Shahsavari (Dr. Shahsavari/doctor), an internist in private practice at Norman Regional Hospital. On October 7-8, 2003, the doctor recommended breathing treatments every 4 hours. Relying on the tests performed the day before by Dr. Ingmire, Dr. Shahsavari ordered no further work-up and released Taliaferro at 10:45 a.m. on October 8, 2003. At 8:00 a.m. on October 9, 2003, Taliaferro returned to the hospital with severe sub-sternal chest pain. Despite treatment which included placement of stents and a balloon pump by a cardiologist, Dr. Dia Abochamh, Taliaferro died in the late afternoon on October 9, 2003. A week after Taliaferro's death, Sherry Taliaferro, the deceased's widow and representative of his estate (widow), met with Dr. Abochamh, who told her that her husband's death was the result of "manslaughter" committed by Dr. Shahsavari.

¶4 On March 29, 2004, the widow brought an action for malpractice against Dr. Shahsavari. During voir dire, the widow objected to a prospective juror, Barbara Jean O'Neill (O'Neill). O'Neill had been an X-ray technician in heart catheterization labs for thirty years where she assisted doctors in the same kind of work that Dr. Shahsavari performed. O'Neill had a daughter-in-law who worked in Norman Regional's catheterization lab with Dr. Shahsavari on a regular basis. O'Neill had also been previously introduced to one of Dr. Shahsavari's expert witnesses by her daughter-in-law.

¶5 The widow objected to O'Neill on the grounds that she would become an expert witness to the other jurors. The trial court chose not to excuse her based on her assertions during voir dire that she could be fair and impartial in weighing the evidence. The widow used her first peremptory challenge to remove O'Neill. The only other juror challenged for cause by the widow was prospective juror, Robert Winslow, whose father was a surgeon. The Court granted the challenge and removed Winslow. Another prospective juror, Corrie Sue Butler, had been a neonatal nurse at Norman Regional for 35 years. The widow did not challenge her, and she was seated as juror number four. Dr. Shahsavari made no challenges for cause.

¶6 At trial, one of the widow's expert witnesses was Dr. Dia Abochamh, the physician who had last treated Taliaferro. Dr. Abochamh testified that Dr. Shahsavari was negligent in failing to perform a cardiovascular work-up on Taliaferro, and that had a work-up been performed, Taliaferro's life most probably could have been saved.

¶7 The court, over the widow's objection, allowed evidence of an incident to be introduced at trial by Dr. Shahsavari for the purpose of showing evidence of Dr. Abochamh's motive or bias. In late July 2003, Dr. Abochamh vandalized Dr. Shahsavari's car by scratching it with a key. Dr. Abochamh could not recall the reason why he vandalized Dr. Shahsavari's car. Dr. Shahsavari maintains that the incident was a result of Dr. Abochamh's perception that he was not receiving the referrals from Dr. Shahsavari that he deserved.

¶8 At the close of argument, the court presented the Jury with several instructions. Instruction Number 15 (Oklahoma Uniform Jury Instruction 14.3) provided:

Alternative Methods of Diagnosis or Treatment
Where there is more than one medically accepted method of diagnosis, a physician has the right to use his best judgment in the selection of the diagnosis, after securing the informed consent of the patient, even though another medically accepted method of diagnosis might have been more effective. OUJI 14.3

The widow objected to the inclusion of Instruction Number 15 on the grounds that she felt the case did not involve a choice of diagnosis, but a failure to take any diagnostic action whatsoever. The trial court overruled the objection and included Instruction Number 15.

¶9 On February 15, 2005, the jury returned a 9-3 verdict in favor of Dr. Shahsavari. On March 10, 2005, the widow filed a Motion for New Trial. The trial court heard argument on the widow's motion on April 12, 2005, and granted the motion on May 17, 2005. The trial judge listed the following errors in the Order Granting Plaintiff's Motion for New Trial: 1) admitting evidence of Dr. Abochamh's vandalism of Dr. Shahsavari's automobile; 2) not excusing juror O'Neill for cause; and 3) giving Jury Instruction Number 15, where the case did not involve choices of method of diagnosis. The Order's closing provides in pertinent part:

. . . By reason whereof, Plaintiff was denied a fair trial, and, although the Court cannot say that the outcome would have been different if the Court had not made the aforementioned errors, the Court believes that both parties, including the Plaintiff, should have a fair trial.

¶10 Dr. Shahsavari appealed, and on April 25, 2006, the Court of Civil Appeals reversed and remanded, finding that the trial judge abused its discretion in granting the widow's motion for a new trial. We granted certiorari on June 26, 2006.

¶11 THE TRIAL COURT DID NOT ERR BY GRANTING THE MOTION FOR A NEW TRIAL.

¶12 The doctor argues that the trial court erred by granting a new trial because: 1) any alleged error that occurred was harmless and, thus, could not serve as the basis for granting a new trial; and 2) the trial court did not make the requisite finding that the outcome of the trial would have differed but for the alleged errors. The doctor insists that the trial court admitted to the absence of a lawful reason to grant a new trial. Taliaferro counters that the trial court did not err by granting the motion for a new trial because even if an individual error was insufficient to require a new trial, the cumulative effect of all of the errors resulted in an unfair trial.

¶13 The right of a party to a fair trial is preserved by

A. A new trial is a reexamination in the same court, of an issue of fact or of law or both, after a verdict by a jury, the approval of the report of a referee, or a decision by the court. The former verdict, report, or decision shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of the party:

1. Irregularity in the proceedings of the court, jury, referee, or prevailing party, or any order of the court or referee, or abuse of discretion, by which the party was prevented from having a fair trial. . . .

When a party is prevented from having a fair trial as a result of an error which materially affects the substantial rights of the party, a new trial is required.

¶14 This Court has long recognized that a trial court is vested with wide discretion as to whether to grant a new trial.

¶15 When the new trial is granted by the same judge who tried the case, a much stronger showing of error or abuse of discretion is required for this Court to reverse than if a party appeals from a refusal to grant a new trial.

a. Excusing Juror for Cause.

¶16 The first error enumerated by the trial court as grounds for granting the widow's motion for a new trial was the court's failure to excuse Juror O'Neill for cause. Ordinarily, a juror is established as impartial upon testifying to a belief that he or she can render an impartial verdict on the evidence presented.

If there shall be impaneled, for the trial of any cause, any petit juror, who shall have been convicted of any crime which by law renders him disqualified to serve on a jury; or who has been arbitrator on either side, relating to the same controversy; or who has an interest in the cause; or who has an action pending between him and either party; or who has formerly been a juror in the same cause; or who is the employer, employee, counselor, agent, steward or attorney of either party; or who is subpoenaed as a witness; or who is of kin to either party; or any person who shall have served once already on a jury, as a talesman on the trial of any cause, in the same court during the term, he may be challenged for such causes; in either of which cases the same shall be considered as a principal challenge, and the validity thereof be tried by the court; and any petit juror who shall be returned upon the trial of any of the causes hereinbefore specified, against whom no principal cause of challenge can be alleged, may, nevertheless, be challenged on suspicion of prejudice against, or partiality for either party, or for want of competent knowledge of the English language, or any other cause that may render him, at the time, an unsuitable juror; but a resident and taxpayer of the State or any municipality therein shall not be thereby disqualified in actions in which such municipality is a party. The validity of all challenges shall be determined by the court. (Emphasis added.)

¶17 The manifest purpose of the statute is to enable litigants to select a fair and impartial jury to try and determine questions of fact involved in their controversies, and it is for the court to determine the validity of all challenges.

¶18 However, at trial, the widow offered no argument that an unfavorable juror was seated because she was forced to expend a peremptory challenge on Juror O'Neill. Juror Butler, a neo-natal nurse at Norman Regional Hospital, was seated on the jury, but the widow did not challenge Butler for cause. She used her two remaining peremptory challenges on other potential jurors, rather than to remove Butler. The widow made no showing at the trial level that there would have been a probability of a change in the outcome of the lawsuit if Juror O'Neill would have been removed for cause rather than by peremptory challenge.

b. Admission of Prejudicial Evidence.

¶19 The second error enumerated by the trial court as grounds for granting the widow's motion for a new trial was the court's decision to admit evidence of the Dr. Abochamh's vandalism of Dr. Shahsavari's automobile. The vandalism incident was a point of contention between the parties throughout the whole trial process.

¶20 Cross-examination of a witness for the purpose of eliciting facts to show bias or prejudice is always considered competent.

¶21 Dr. Abochamh was the widow's primary witness, and the validity of his testimony was called into question by Dr. Shahsavari's persistent discussion of the vandalism incident. The car-keying incident was first alluded to in Dr. Ingmire's testimony when he mentioned that there "were some controversial" issues that came up with regard to whether Dr. Abochamh was a good doctor.

¶22 On cross-examination, Dr. Shahsavari was questioned over the incident and on the conflicts he had with Dr. Abochamh.

¶23 A trial court has broad discretion in determining the relevance of proffered evidence and in balancing its probative value and unfair prejudice.

c. Confusing Jury Instruction.

¶24 The third error enumerated by the trial court as grounds for granting widow's motion for a new trial was the court's decision to include Jury Instruction Number 15 (Oklahoma Uniform Jury Instruction 14.3) which provides:

Alternative Methods of Diagnosis of Treatment
Where there is more than one medically accepted method of diagnosis, a physician has the right to use his best judgment in the selection of the diagnosis, after securing the informed consent of the patient, even though another medically accepted method of diagnosis might have been more effective. OUJI 14.3

¶25 Instructions are explanations of the law of a case enabling a jury to better understand its duty and to arrive at a correct conclusion.

¶26 Although the law was stated correctly in Jury Instruction Number 15, this instruction was inapplicable to the facts in this cause and it misled the jury. "Diagnosis" is defined in Black's Law Dictionary as, a medical term, meaning the discovery of the source of a patient's illness or the determination of the nature of the disease from a study of its symptoms.

¶27 The doctor did not perform any diagnosis, as the record reflects, on the deceased, the day before the fatal heart-attack.

¶28 The widow characterizes her theory of negligence as that of inaction, rather than one of choosing a less effective method of treatment. She contends that the instruction neither applied to the evidence nor to the issues presented. We agree.

¶29 The instruction of alternative diagnosis should only be given when the evidence allows the jury to find that more than one method of diagnosis is recognized by the average practitioner.

¶30 The question in the usual failure to diagnose case is whether the doctor was negligent in failing to recognize the significance of the symptom or symptoms. The alleged negligence lies in failing to do something, not in negligently choosing between two or more courses of action.

d. The order granting a new trial.

¶31 A trial court, when entertaining a motion for a new trial, has wide discretion to determine whether certain happenings in the course of a trial are error and whether such errors necessitate a new trial. The boundary of that discretion is that a trial court may not order a new trial purely because of harmless error. The doctor would have us construe the closing language of the Order Granting Plaintiff's Motion for New Trial to mean that the trial court considered all three enumerated errors to be harmless.

¶32 The trial court was clearly employing the language of

CONCLUSION

¶33 A trial court has wide discretion as to whether to grant a motion for a new trial.42 It is the duty of the trial court to safeguard the rights of the litigants to a fair trial and where, in the opinion of the court, a party has not been so protected, may grant a new trial to obviate the error which has occurred.43 In applying the difficult standard which must be met on appeal to show that the trial court erred in granting a new trial, we determine that the appealing doctor has not met the burden.

CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS OPINION VACATED;
TRIAL COURT AFFIRMED.

Watt, C.J., Lavender, Opala, Kauger, Edmondson, Taylor, Colbert, JJ., concur.

Winchester, V.C.J., Hargrave, J., dissent.

FOOTNOTES

1 Transcript of Proceedings had on February 11, 2005, Vol. V, p. 1198.

2 Transcript of Proceedings had on February 11, 2005, Vol. V, p. 1123-1126.

3 Transcript of Proceedings had on February 11, 2005, Vol. V, p. 1131.

4 Title 12 O.S. 2001 §651 provides in pertinent part:

A new trial is a reexamination in the same court, of any issue of fact or of law or both, after a verdict by a jury, the approval of the report of a referee, or a decision by the court. The former verdict, report, or decision shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of the party:

1. Irregularity in the proceedings of the court, jury, referee, or prevailing party, or any order of the court or referee, or abuse of discretion, by which the party was prevented from having a fair trial. . . .

Akin

The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.

Title

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected. . . .

1. Concern the witness's character for truthfulness or untruthfulness;

2. Concern the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

Q: Did you ever hear anybody comment in any way about Dr. Abochamh practicing bad medicine?
A: In those specific words?
Q: Yeah.
A: I can't say that I can specifically remember that.
Q: Or that he wasn't a good doctor or just words to that effect?
A: I know there were some controversial issues that came up - -
Q: No. I am talking about whether anybody talked about him practicing bad medicine.
A: In so many words, no, sir, I can't say that I recall that.

Q: So the conflict between you and Dr. Abochamh is not patient-care related, it was all related to the car-keying incident and the damage he caused to your property?
A: That's right.

'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would without the evidence.

Title

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Oklahoma, by statute or by this Code. Evidence which is not relevant is not admissible.

Title

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence, or unfair and harmful surprise.

A medical term, meaning the discovery of the sources of a patient's illness or the determination of the nature of his disease from a study of its symptoms. The art or act of recognizing the presence of disease from its symptoms, and deciding as to its character, also the decision reached, for determination of type or condition through case or specimen study or conclusion arrived at through critical perception or scrutiny. A 'clinical diagnosis' is one made from a study of the symptoms only and a 'physical diagnosis' is one made by means of physical measure, such as palpation and inspection.

Q: You didn't take any vital signs yourself in the -
A: But I observed him.
Q: Did you take his temperature?
A: I did not take his temperature, no.
Q: Did you take his pulse?
A: I listened to his heart.
Q: You didn't record his heart rate?
A: No, I did not.
Q: Did you record his respiration?
A: I did not.

Q: All of those numbers are numbers that basically arrived in the emergency room, right?
A: That's true.
Q: That's nothing that you did or you ordered, it's just you wrote it down from the information you got?
A: Yes, sir.