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Davenport v. Ephraim McDowell Memorial Hospital Inc.12/22/1988
COMBS, JUDGE. This appeal is from the Boyle Circuit Court where a jury returned a verdict in favor of appellees, Ephraim McDowell Memorial Hospital (Hospital), Dr. Bill Barnett, Bill Barnett P.S.C., and Danville Anesthesia Associates, as against appellants Sylvia and Harold Davenport, husband and wife. The trial court entered judgment accordingly. Appellants' complaint against appellees alleged that Sylvia suffered severe personal injury while a patient at the hospital which was a result of the appellees' medical negligence. We reverse the judgment of the trial court, and remand the action for a new trial.
Sylvia was admitted to the hospital for comparatively minor surgery. She had had a heart condition for several years which was described as mitral valve prolapse with atrial fibrillation, meaning her heart would quiver rather than beat strong and healthy. The surgery was for the purpose of exploring for cancer and closure of a colostomy. The anesthesiologist was appellee, Dr. Bill Barnett. The surgeon was Dr. Chris Jackson. One of the anesthetics administered was Sufenta. The surgery went without complications.
Sylvia was taken to the recovery room at 11:35 a.m. She was connected to a heart monitor which was equipped with an alarm to sound in case her heartbeat stopped. She was awake and cogently spoke with Dr. Barnett about the operation. Her vital signs were normal. Dr. Barnett and a nurse, Wilma Pence, noted that Sylvia's heart had converted to a normal sinus rhythm and was pumping properly. Dr. Barnett left the recovery room, and placed Sylvia in the charge of nurse Louise Sexton. Dr. Jackson came into the room, briefly spoke with Sylvia, and left.
Nurse Sexton again took Sylvia's vital signs at 11:45 a.m. She then walked to a nearby nurses' desk. Another nurse, Beverly Wolfe, noticed at 11:46 a.m. that Sylvia was not breathing and was turning blue. The heart monitor was showing a flat line, but had sounded no alarm because its alarm system had either not been activated or its volume had been adjusted low enough to be inaudible.
CPR was commenced and Drs. Barnett and Jackson returned to the recovery room and continued efforts to resuscitate Sylvia. Sometime later spontaneous cardiac activity returned. Sylvia remained comatose and was placed on a respirator. She is now permanently comatose.
Appellants' first argument for reversal of the judgment is that the trial court erred twice during the jury selection process. They complain first that it was error to allow the co-appellees to jointly exercise six peremptory strikes when their interests were not antagonistic; and second, that it was error not to sustain their motion to strike two members of the jury panel for cause.
CR 47.03(1),(2) states that:
In civil cases each opposing side shall have three peremptory challenges, but coparties having antagonistic interests shall have three peremptory challenges each.
If one or two additional jurors are called, the number of peremptory challenges for each side and antagonistic coparty shall be increased by one.
Additional jurors were called.
The record reveals that during discussion in chambers counsel for Dr. Barnett, Barnett, P.S.C., and Danville Anesthesia Associates, informed the court that the interests of the co-appellees were not antagonistic.
Having heard this, counsel for the appellants then argued the court to allocate four peremptory strikes to the appellants and four collectively for the co-appellees, to be exercised in collaboration. The trial court decided to allow appellants four peremptory strikes and the co-appellees collectively si
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