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Somerville v. Ahuja6/3/2005
Mary Somerville, the Personal Representative of her deceased husband's (Richard Somerville's) estate, appeals from a final judgment , after a jury trial, which denied her any damages in a medical malpractice case filed pursuant to sections 768.16-768.27, Florida Statutes. Mary sought to prove at trial that Doctor Ahuja deviated from the standard of care owed by practitioners in his field by failing to properly treat Richard's heart problems, by not ordering more testing prior to discharging him from the hospital, and by not prescribing additional cardiac medication upon discharging him.
Although there were other defendants involved, this appeal relates only to Dr. Ahuja, a cardiologist, who was called in for a consult on August 8, 2000 when Richard was admitted to Fish Memorial Hospital, complaining of rib cage pain. Tests revealed Richard had severe cardiac problems, and a cardiac surgeon recommended coronary by-pass surgery. Dr. Ahuja made the decision to discharge Richard from the hospital because he thought Richard was stable, and could gain strength resting at home, while awaiting the surgery. Unfortunately Richard suffered a fatal heart attack about 13 hours after being discharged.
The sole issue on appeal in this case is whether or not the appellant was denied a fair trial because the judge denied her four juror challenges for cause. Four prospective jurors answered questions during the voir dire, which appellant argues, demonstrated their lack of ability to be unbiased and without prejudice in deciding this case: Love (juror no. 4); Garner (juror no. 15); Beckwith (juror no. 12); and Walls (juror no. 17). The appellant exhausted her peremptory challenges against Love, Garner, and Beckwith, and after being denied an additional peremptory challenge, was forced to accept Walls, over protest, as a juror. We reverse for a new trial.
The issue of failing to excuse a juror for cause was preserved. Florida case law establishes that it is reversible error to require a party to exhaust all of that party's peremptory challenges against prospective jurors who should have been excused for cause, and thereby force that party to accept on the jury a person the party identifies and states they would have exercised a peremptory strike against, had they been granted an additional peremptory strike, or had they had an additional strike remaining. Although appellant's trial counsel did in fact ask for an additional preemptory strike to remove Walls from the jury, that is not a requirement to preserve the issue. We will discuss each prospective juror, including Walls, separately.
Prospective Juror Love
One of the difficulties in picking this jury was the number of persons on the venire panels who harbored bad feelings about malpractice suits against doctors. They were concerned about the number of such suits, the potential problems which could make it difficult for them to find a doctor to treat them and their families, and the rising insurance costs for doctors, which they thought were caused by malpractice lawsuits.
Love responded that her uncle is a physician, and he had talked to her about rising insurance costs caused by too many malpractice lawsuits against doctors. Appellant's counsel asked her if she would have a problem bringing back a verdict against a health care provider, because of the cumulative effects of such lawsuits, and her ability to get good medical care. She replied, "I guess so, but I - but I still think that I could separate that from --once I heard the .[evidence]." When appellant's counsel pressed her on whether or not she could assure him she would not let her preference play any role in her decision, she continued to vacill
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