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2005-UP-132 - Saxon v. Stokes

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT
BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

James Bruce Saxon, Jr.,        Appellant,

v.

Curtis Stokes, M.D.,        Respondent.


Appeal From Colleton County
John M. Milling, Circuit Court Judge


Unpublished Opinion No. 2005-UP-132
Submitted February 1, 2005 – Filed February 22, 2005   


AFFIRMED


James H. Moss, of Beaufort, for Appellant.

Stephen L. Brown, John Hamilton Smith, and Matthew K. Mahoney, all of Charleston, for Respondent.

PER CURIAM: In this medical malpractice action, we must decide whether the trial court erred in seating two jurors, one of whom identified herself as a current patient of the Respondent physician and the other who identified himself as a former patient of another physician in the Respondent’s medical practice.  Over Appellant’s objection, the trial judge impaneled these jurors.  We find no abuse of discretion and affirm the trial judge’s ruling.

FACTS/PROCEDURAL HISTORY

Appellant James Bruce Saxon, Jr., brought this medical malpractice action against Respondent Curtis Stokes, M.D.  At the time this case was brought to trial, Dr. Stokes was one of six doctors practicing general medicine at Walterboro Family Practice, P.A., in Colleton County.  Walterboro Family Practice, however, was not a party to this action. 

During jury venire, the trial judge asked the pool of potential jurors whether they had any connection with Dr. Stokes or the other physicians or employees of Walterboro Family Practice.  Twenty-nine jurors responded affirmatively.  When individually questioned by the trial judge, some jurors indicated they were current or longstanding patients of Dr. Stokes or the other physicians in his practice, while others responded they were treated only once or twice by these doctors—in some cases, years ago. 

Saxon requested that all jurors who were being treated by Dr. Stokes and his associates be stricken for cause, arguing this doctor-patient relationship would unavoidably hinder these jurors’ ability to view the case impartially. The trial judge disagreed, finding all but one of the twenty-nine affected jurors—based on their responses—could serve fairly and impartially.

As the jury was being drawn, Saxon used all four of his peremptory strikes to excuse jurors who had identified themselves as having a connection to Dr. Stokes or his medical practice associates.  However, two of the affected jurors were drawn after all of the peremptory strikes had been exhausted.  These two jurors—juror number 125 and juror number 158—were both impaneled on the jury despite Saxon’s general objection that any juror who had been treated by Dr. Stokes or his associates be struck from the jury.

During the initial jury venire, both juror 125 and juror 158 were individually questioned by the trial judge.  Juror 125 identified herself as a current patient of Dr. Stokes:

JUROR: My name is Robertson, 125.
THE COURT: Thank you.  Ms. Robertson, whom is it that you recognize?
JUROR: Dr. Stokes and also Dr. Hyatt.
THE COURT: And are they your family physicians?
JUROR: Yes, sir.
THE COURT: And are you -- have you seen them in the last six months?
JUROR: Yes, sir.
THE COURT: And as a result of that type of relationship you have with those doctors, can you be fair and impartial to both the Plaintiff and Defendant in connection with this case?
JUROR: Yes, I can.

Juror 158 identified himself as a former patient of another physician practicing with Dr. Stokes:

THE COURT: Yes, sir?
JUROR: James Walker, Number 158.
THE COURT: Yes, sir, Mr. Walker. Whom do you recognize?
JUROR: Dr. Johnson used to be my doctor many years ago.
THE COURT: And as a result of that type of relationship, can you be fair and impartial to the Plaintiff and to the Defendant?
JUROR: Yes. 

Both of these jurors were impaneled on the twelve-member jury that decided the case—finding in favor of Dr. Stokes.  This appeal followed.

STANDARD OF REVIEW

The decision to disqualify a potential juror for bias is committed to the sound discretion of the trial judge and that decision will not be overturned absent an abuse of discretion. Abofreka v. Alston Tobacco Co., 288 S.C. 122, 125, 341 S.E.2d 622, 624 (1986); Palmetto Bank v. Rowland, 275 S.C. 38, 40, 267 S.E.2d 426, 426 (1980).

LAW/ANALYSIS

          Saxon claims the trial judge abused his discretion in failing to disqualify juror 125 and juror 158 from serving on the jury.  Saxon makes two legal arguments here: first, that this court should adopt a per se rule that all ongoing patients of a physician involved in a medical malpractice action be disqualified from serving on the jury, and, alternatively, absent a per se rule, juror 125 and juror 158 should nevertheless have been disqualified in this case.  Dr. Stokes, however, claims that Saxon failed to preserve these issues for appeal.

I.  Preservation of Issues for Appeal

We first address the questions raised concerning issue preservation. 

Respondent argues that Saxon failed to specifically raise an objection to the qualification of jurors 125 and 158, thereby waiving any right to appeal the trial judge’s decision to allow these jurors to serve. [1]   We agree in part.

After carefully reviewing the transcript of the jury selection process contained in the record before us, it is clear that Saxon’s objection regarding juror disqualification focused primarily on those jurors who had identified themselves as current patients of Dr. Stokes.  Saxon voiced much less concern about those jurors who had been treated many years ago or were treated by the other physicians of Walterboro Family Practice.  Arguably, therefore, Saxon abandoned his request to disqualify all but the current, ongoing patients of Dr. Stokes.  However, despite this almost exclusive focus on the current patients of Dr. Stokes in argument to the trial judge, Saxon’s counsel did, by way of caveat, add: “I mean, we think that all former or current patients of the firm should be stricken, but . . . ” (emphasis added).  While a close question is presented, we find this statement preserves Saxon’s general objection to any of the twenty-nine affected jurors being allowed to serve on the jury—whether they were current or former patients of the defendant or any other physician in his practice.

Part of Saxon’s argument to this court, however, is that the trial judge was unable to reach a fully informed decision about the ability of jurors 125 and 158 to serve impartially because he failed to “reexamine” those two jurors individually as he had done with other jurors specifically identified by Saxon.  We find this particular argument is not preserved. 

The judge requested from Saxon a list of the jurors in question.  Saxon furnished the list, and the judge agreed to reexamine those jurors on the list.  Jurors 125 and 158 were not included on the list, and they were not reexamined.  Following the judge’s reexamination of those jurors identified on Saxon’s list, and just prior to jury selection, the judge asked, “Anything else we need to do, as far as the plaintiff is concerned prior to” the preparation of the strike sheet?    Saxon, through counsel, responded, “No, sir, your honor.”  We find Saxon’s current challenge to the trial judge’s failure to reexamine jurors 125 and 158 is not preserved. 

II.  Qualification of Jurors 125 and 158

Turning to the merits of Saxon’s broader appeal, and in the application of current law, we find no abuse of discretion by the trial judge’s qualification of jurors 125 and 158.

The circumstances of this case mirror those in the case of  Roof v. Kimbrough, 297 S.C. 156, 375 S.E.2d 318 (Ct. App. 1988).  In Roof, the appellants claimed the trial judge erred in “failing to strike for cause . . . any prospective juror who was being or had been treated, or whose family members were treated” by the respondent physicians in a medical malpractice action.  During voir dire, several members of the venire responded that they themselves or a close relative had been treated by the respondents.  The trial judge, however, individually questioned these jurors, and each responded that his or her connection to the physicians being sued in that case would not prejudice or prevent him or her from reaching a true and just verdict in the case.  On appeal, this court found no abuse of discretion by the trial court in impaneling those jurors. Id. at 158, 375 S.E.2d at 320.

We find the case at hand is squarely on point with Roof.  As noted above, the trial judge included both jurors 125 and 158 individually in his initial questioning regarding the nature of their relationship with Dr. Stokes and Walterboro Family Practice.  Both jurors responded unequivocally that their respective connections to Dr. Stokes or his associates would not prevent them from being fair and impartial.  Saxon cites no evidence indicating these jurors were harboring any prejudice or otherwise being less than honest in answering the trial court’s questions. 

Additionally, we must reject at this level Saxon’s suggestion that such prejudice should be presumed and that we adopt a per se rule barring any patient of a defendant in a medical malpractice case from serving on the jury. [2]    Our supreme court has signaled no intention to divest the trial courts of the discretion to address the qualification of a juror in a medical malpractice case as the circumstances of the individual case and the ends of justice require.  We, as a mere error correction court, decline Saxon’s invitation to deviate from precedent and adopt the suggested per se rule in medical malpractice actions.  While we recognize the special relationship that exists between patient and physician, policy matters such as this lie exclusively within the supreme court.

CONCLUSION

Under existing law, we find no abuse of discretion by the trial judge in denying Saxon’s request to disqualify jurors 125 and 158 from jury service in this case. 

AFFIRMED.

HEARN, C.J., KITTREDGE and WILLIAMS, JJ., concur.        


     [1] See United Student Aid Funds, Inc. v. South Carolina Dep’t of Health and Envt’l Control, 356 S.C. 266, 273, 588 S.E.2d 599, 602 (2003) (holding that an issue must have been raised to and ruled upon by the trial court to be preserved for appellate review). 

     [2] Saxon argues the circumstances of the present case are analogous to those of Alston v. Black River Electric Cooperative, 345 S.C. 323, 548 S.E.2d 858 (2001), in which our supreme court adopted a rule that cooperative members should per se be disqualified to serve on a jury where the cooperative was a party.  The ruling in Alston was rooted in the court’s recognition that cooperative members have an “inherent pecuniary interest in the case” which would unavoidably hinder their ability to view the case impartially. Id. at 331, 548 S.E.2d at 862.  Whether an Alston-type exception should be recognized in a medical malpractice action—excusing for cause those potential jurors who are current or former patients of the defendant physician—is beyond the purview of this error correction court.