*1 66,047 No. Lydia Ray Saucedo, M.D., Winger, Appellant, v. Appellee.
(
Lydia Saucedo commenced a malpractice against action Ray Winger, alleging that negligent the doctor’s diagnosis and treatment caused or substantially contributed to the death of her husband, Pablo, from cardiac infarction or cardiac arrhythmia. Dr. Winger’s defense was that Pablo died of respiratory failure from inhaling vomit lungs, into his not of a heart attack. Medina,
At Ralph a friend of Pablo and Lydia, testified that during he, Thanksgiving brother, Day his and Pablo con- sumed as much as four and one-half cases of Lydia beer. testified that she believed house, Pablo had about 12 beers at Medina’s but Pablo and the two others could have consumed as much as four and one-half cases. Lydia estimated that they left Medina’s house around 2:30 A.M. She stated that she teased Pablo about having hangover a the morning after Thanksgiving.
Pablo, Lydia, and their young two sons went to the office of Dr. Winger that morning. Lydia and her sons were with Pablo throughout the visit to Dr. Winger’s nurse, office. Dr. Winger’s Patricia Phillips, inquired as to Pablo’s complaints and took a brief history. She noted on the chart: “Sharp pain in chest— started 2 numb; about ago; Meds; B/P-130/84; Arms No [hrs] NKA; T-98.0.”
Dr. Winger examined Pablo and ordered a chest x-ray. Dr. Winger diagnosed having Pablo as gastroenteritis possible with given injection Pablo was of an antibiotic
bronchitis. quantity of Maalox antacid. Pablo was then sent home with in- antacids, rest, taking structions continue and to return if get he did better. office, leaving Winger’s testified that after
Lydia they picked up paycheck place employment Pablo’s at his and when they returned home Pablo down on the couch. went lay Lydia to hang outside the house some clothes. When she came back house, later, in the or minutes she saw Pablo on the lying floor jerking, lips and cheeks were purple. Lydia her neighbor stay next-door with Pablo she get while went her home, When Lydia sister. returned body lying Pablo’s on blanket, the floor covered and she was told that Pablo had died.
Hospital records indicated that when crew the ambulance ar- *3 commenced, signs, rived Pablo had no vital CPR was and Pablo transported was the hospital. The emergency room chart in- “D.O.A.,” dicated that was Pablo with vital signs. no A variety techniques resuscitative attempted was in the emergency room. emergency room notes indicate: “[Rjepeated to in- attempts tubate unsuccessful. . . . Continuous emesis stomach con- tents, with [high percentage] of what is apparently At antacid.” Lydia’s request, no autopsy was conducted. Perkins,
Dr. plaintiff’s expert witness, medical testified Jack it was that that unlikely Pablo died inhaling from vomit into his or lungs as a complication gastroenteritis. of bronchitis and Al- Dr. though agreed Perkins Dr. Winger’s diagnosis that Pablo bronchitis, it was opinion that Pablo’s death due to a cardiac infarction arrhythmia. Dr. Perkins that testified Dr. Winger negligent ordering further tests to determine the condition of Pablo’s heart. uncle, deposition Lydia’s Rodriquez, was admitted Jesse
into Rodriquez evidence. stated that he last saw Pablo on the day Thanksgiving (two before days before died). Pablo Rodriquez said that when he arrived at the hospital, just after Pablo had died, he met Winger Dr. in the hospital and inquired as to the cause Pablo’s death. Rodriquez Winger testified that Dr. told him that Pablo could have died of a heart attack. witnesses, including several two mem- presented The defense bers of the ambulance crew that treated Pablo. Kenton Brech- buhler, members, one of the crew stated that there was vomit on the side of Pablo’s face. He described the vomit as “a mixture gastric during white and contents.” He stated that CPR Pablo’s stomach moving contents were into Pablo’s mouth with each com- member, pression Hickey, of his chest. another crew de- Janice scribed a white carpet substance on the and around Pablo’s mouth. witness,
Dr. Lawrence Perry, defendant’s expert medical tes- tified his opinion Pablo probably died from respiratory failure of some sort. Dr. indicated Perry struggling jerking change and a in coloration could indicate that lungs Pablo’s were not functioning. It was Dr. Perry’s opinion that was unlikely Pablo died from a myocardial infarction or any type of heart attack.
It is important to note that is conflicting there evidence as to what occurred during Dr. Winger’s examination of Pablo. Dr. Winger noted on Pablo’s chart “Spanish speaking only. . . . Low sternal pains chest epigastric & pain also vomit 6-7 this [times] A.M. . . . Both children had that resolved two days vomit/dia ago. Lungs . . . clear but shallow breath. x-ray with in- [Chest markings. bronchial creased] epigastrium, [ijmp: [T]ender Gas- troenteritis possible] [with] Bronchitis.” Winger admitted that he made these notations on Pablo’s chart after he had learned of Pablo’s death.
In his deposition trial, prior taken Dr. Winger first stated that he had obtained that information daugh- Saucedos’ from (The ter. Saucedos have boys two and no daughter.) At *4 but, testified he talked to in Spanish Pablo when he had Pablo, difficulty understanding he asked one of the boys help him. Dr. Winger said he was not sure whether the information about Pablo vomiting that morning came from Pablo or from the boys. He also said that the information about the having children diarrhea and vomiting two days earlier had come from either Pablo or one of the boys.
Lydia’s testimony of what during occurred the doctor’s exam- ination of Pablo directly Winger’s contradicted Dr. version of events. Lydia testified that spoke Pablo English some to Dr.
Winger during the examination. testified Lydia she was fluent in English both Spanish. (Dr. Winger was not aware of this until Lydia deposition fact Saucedo’s was taken prior trial.) She said that the children did not say anything during the ex- Winger amination and that no one told Dr. that Pablo had vom- ited that morning. Lydia claimed that Dr. Winger’s notations on Pablo’s record that there was no history high blood pressure, vomitus, no history pains, chest no blood in and no blood in stools had no basis in fact subjects because these were not dis- during cussed the examination. She stated the notation about the being children totally sick was false because the children had not been sick and the doctor had not asked the children whether they Lydia had been sick. Winger stated that Dr. never listened lungs during Pablo’s heart or the examination nor did he physically touch her husband.
Near the end of son, Pablo’s now 11-year-old Eric Saucedo, was called to the stand plaintiff to demonstrate Winger did not obtain any medical history from Pablo through Eric as an interpreter boy, because the years who was 8 examination, old at the time of the could not speak Spanish. Eric testified: Eric, you speak Spanish do at all?
“Q. “A. No. you Spanish? Do understand “Q. “A. No. you your Do Spanish? ever talk to mom in “Q. “A. No. you? Can “Q. “A. No. Eric, you do day died, your remember back the “Q. having gone dad your to the doctor with your your mom and dad and little brother? No, “A. I don’t remember. being You don’t remember “Q. at the doctor’s office? “A. No.” After the evidence had been presented instructed, and the jury the jury given a series of special questions to answer which included: procedures 'T. Did the making used diagnosis
rendering care and treatment to Pablo Saucedo fall below the standard of *5 Kansas, required general family practitioner Hugoton, care of a or com- size, existing?” munities of similar under the circumstances Saucedo, Winger’s diagnosis “2. Did Dr. and treatment of Pablo or the thereof, lack cause or contribute to Pablo Saucedo’s death or lessen his chances for survival?” jury question
The answered the first “Yes” and ques- the second tion “No.” The trial judge judgment Winger entered for Dr. and discharged jury. trial, Lydia
After the submitted to judge the trial affidavits of jurors three which admitted misconduct and a motion to recall All jury. three affidavits indicate that while jury was Bultman, deliberating, juror, Alan jury informed the that his daughter attended school with Eric Saucedo. According to the affidavits, Bultman told the that after Eric Saucedo had testified Bultman asked his daughter if Eric could speak Spanish daughter and that his told him that Eric speak could Spanish did so regularly. Two of allege the affidavits also that during deliberations unnamed stated that Pa- Rodriquez, Jesse uncle, blo’s was a cocaine dealer and that it possible that Pablo died of a cocaine All overdose. three affidavits indicate that majority of the jury voted initially “yes” to both of the questions submitted. judge agreed that the statements of Bultman con- misconduct,
stituted but found that the juror’s was limited to whether negligent in his exam- ination of Pablo and did not substantially affect the jury’s deter- mination as to the cause of Pablo’s death. As to the juror’s comment dealer, Rodriquez was a cocaine the trial Jesse judge stated was “the sort of a ‘wild part comment’ that is processes the mental hammering out a verdict” and could not be seriously affecting considered as the judgment of the jury; therefore, it grounds was not for a new trial. judge denied Lydia’s motion to recall the jury request and her for a new trial. Plaintiff appealed. parties
Both
prior
cite
Kansas
in support
argu-
cases
of their
ments
to whether under these
facts the misconduct so prej-
udiced the
plaintiff
was entitled to a new trial. Lydia
Stuart,
relied on State v.
129 Kan.
(1930),
findings upon
regularly
evidence
introduced in
trial
the
and not
upon
personal knowledge
the
A
jurors.
of
of
statement
fact
aby
juror to his fellow
of
jurors
personal
knowledge
facts in-
misconduct,
the
volved in
case is
but not
every act misconduct
requires
granting
trivial,
the
a new
If
trial.
the
or not such as to influence the
jury,
misconduct will not
vitiate a verdict. But if facts outside of the
brought
evidence are
before the
personal
based on the
knowledge
of a
and
those facts are likely to have
influenced
minds of other jurors,
Duncan,
verdict should
(State
883,
be set aside.
v.
70 Kan.
[1904];
Lowe,
183,
injuries he received in an
collision.
automobile
returned
in actual
plaintiff
more than the
claimed
only
a verdict for
$300
claiming
Kincaid
the verdict
so inade-
damages.
appealed,
prejudice
because of
miscon-
quate
passion
indicated
.
a new
it was
hearing
At the
on Kincaid’s motion for
duct.
in an automobile
jurors
revealed that three
followed the defendant
habits,
driving
her
which were at issue in the case.
to observe
The Kincaid court noted it was misconduct for members of a
being
parties
to follow an automobile
driven
one of the
observing
for the purpose of
the driver’s habits where the infor-
mation obtained is then used
deliberations and failure
jury’s
display
stop
signal
or turn
was a material factual
issue
the case. It
a juror may
questioned
observed
not be
or evidence
received,
verdict,
for the purpose
challenging
as to what
process
influenced the mental
jurors
concerning
*7
process
mental
which a
by
verdict was reached. The Kincaid court
that,
concluded
challenging
a verdict for misconduct of the
a
jury,
juror may
questioned
be
received
phys-
evidence
as to
facts, conditions,
occurrences,
ical
either within or without the
room,
being
which were material to the issues
determined.
The Kincaid court held the conduct of the jury
prejudicial
was
granted
a new trial.
Arney,
relies on State v.
Kan.
218
544 P.2d
Fenton,
(1975),
334
and State v.
Kan.
On the Amey court noted it was not disputed such conduct on part juror wrongful the of the and in violation 22-3413, of K.S.A. thereby subjecting juror the errant to the possibility of contempt proceedings. The question for the court to determine on the motion for new trial was whether the juror’s misconduct necessitated a argued new trial. Defendant the
juror’s personal investigation permitted the to consider mat- deprived ters which were not in evidence and him thereby him, right against the constitutional to confront witnesses as provided the Sixth Amendment to the United by States Consti- the Bill of Rights tution of the Kansas Constitution. § Amey agreed court criminal a defendant is denied right his constitutional the against confront him when witnesses juror investigation a conducts an a independent of material issue reports of fact and jury during the results thereof its Amey majority deliberations. The court observed that the question states which have considered the of the unauthorized view of a juror the scene of crime have followed rule that such grounds conduct is not be considered for reversal in the absence of showing rights that the material of the accused prejudiced thereby. It if observed that even were accused right denied his constitutional to confront against the witnesses when him an independent investigation conducts of a material issue fact and reports results thereof to the jury deliberations, during its it will be grounds if reversal juror’s beyond misconduct is harmless a reasonable doubt. Al- though Amey misconduct, acknowledged that this clearly noted the defendant challenged had not sufficiency evidence and that the court considering trial the evidence in support the motion for new trial was aware that the evidence guilt establishing of the defendant was substantial. In addition victims, to eyewitness identifications three persua- there was sive' circumstantial evidence implicating defendant. The matter improperly investigated by and discussed with the other *8 members of the did to a relate material issue in dispute. Amey The court refused to reverse conviction because there was no evidence that the defendant was prejudiced by the jury’s misconduct. Fenton, days several after the defendant had murder,
been first-degree convicted of a juror told the defendant that three the jurors of told the other members of the they had heard a threat that Fenton would kill jurors he if was convicted. trial, The filed defendant a motion for new claiming jury misconduct prevented receiving him from a fair trial. The trial court held an evidentiary hearing to determine the nature prejudicial had a the threat whether the threat of and source hearing three evidentiary the At rights. the defendant’s on effect prior the threat about had heard that they testified jurors about heard remaining jurors nine The jury’s deliberation. to the the verdict but after room in the while still the threat each judge, trial questioned When determined. been decision. his or her affect did not the rumor stated jurors trial. for a new motion Fenton’s denied judge The trial court has this years in recent that noted Fenton court cases criminal civil and rule in both to the adhered consistently trial, reversal, new or grounds for is not misconduct that substantially prejudiced to have it is shown mistrial unless has the burden claiming prejudice rights. party party’s which has is a broad label misconduct It stated that proof. jurors as communications to describe such matters been used reading of others, or viewing premises, the unauthorized from under the that The Fenton court concluded articles. newspaper jurors questioned properly there the trial court presented facts It ob- their decision. alleged upon of an threat about the effect placed which had been was not a matter served that the threat The court in verdict itself. inherent or a matter evidence matters inquiry into extraneous permits that K.S.A. 60-444 noted of the ver- bearing validity have a material may which rights of the defendant that the The trial court’s conclusion dict. jurors’ substantially prejudiced were not upheld appeal. on proving major hurdles to overcome Lydia
At had three First, that prove she needed to malpractice medical claim. her standard Winger’s required Pablo fell below the treatment of Second, care, i.e., negligent. she had that Dr. negligence substantially contributed prove the doctor’s caused Third, had to she sustained prove to Pablo’s death. she although jury found that Pablo’s death. The damages because of fell below and treatment of Pablo diagnosis Dr. Winger’s care, diagnosis Winger’s negligent required standard contribute Pablo did not cause treatment of of survival. death or lessen his chances Pablo’s Appeals and the Court of judge with the trial agree We daughter’s to the about juror Bultman’s communication *9 Spanish-speaking as to Eric Saucedo’s abilities and the statement unknown statement that Pablo’s uncle was a cocaine dealer juror’s possible and it that Pablo died of a cocaine overdose con- not, in the question stitute misconduct. The as stated by parties, cases discussed whether this misconduct substan- tially plaintiff’s rights to a trial whether prejudiced fair but rights of plaintiff substantially were affected misconduct 60-259(a) See K.S.A. jury. First.
As to the first question jury, submitted the Court of Appeals noted that the concluded Dr. did not con- examination, e., adequate duct an Winger’s i. Dr. conduct fell required below the standard of Appeals care. The Court of con- cluded that the jury’s ability to Eric’s to speak Spanish had not the jury’s influenced determination the ulti- mate cause of Pablo’s death.
The Court of then Appeals considered whether the unnamed juror’s statement that Rodriquez was a dealer cocaine Jesse juror’s conclusion that Rodriquez since Pablo and to- were death, gether days two might before Pablo’s Pablo’s death have been caused a cocaine overdose improperly influenced the finding jury’s that the doctor’s treatment of Pablo did not cause contribute to Pablo’s death. It noted district that, ruling is, court’s being human nature what it if every wild expression of opinion in made room in the throes of ham- mering retrial, out a verdict could be made the basis for verdicts could seldom be preserved. The Court of Appeals stated verdicts, such inquiries into the validity based on mental processes Kansas, the jurors, are foreclosed formerly by case Hardin, law and now by 517, 523, statute. Brown v. (1966). P.2d 912 The Court of Appeals concluded the district court did not abuse its discretion in denying the motion for new trial or jury. recall of the
We agree with the Court of Appeals’ statement upon inquiry as the validity of a verdict anor indictment no evidence statement, can be received conduct, to show the effect of any event, or condition mind of a as influencing him or her to assent dissent from the verdict or indictment or concerning the mental processes by which it was determined. K.S.A. A 60-441. verdict may not impeached be by (1) questions *10 conclusions, to the (2) as questions or views or jurors to a determining those used in or as to factors for those views reasons views conclusions, what influences those involving (3) questions in reach- process the mental which influence involving factors reaching in of a process juror mental ing such conclusions. mental cannot process influence the the factors which a verdict or a verdict. Public impeaching purpose into for the inquired be for a on these matters the of a questioning forbids policy i.e., reason, the possible way is no to test there very obvious Wade, Kan. at Kincaid v. 196 of the answers. veracity truth or 178. Constitution sets to the United States
The Sixth Amendment in Section right to a fair trial a criminal action. forth an accused’s the Rights guarantees Bill of com- 5 of the Kansas Constitution Implicit trial in civil actions. the right mon-law to a right trial a fair trial. The right constitutional to a civil is to against of a impeachment of K.S.A. 60-441 statutory prohibition that or her apply party verdict does not when a claims right to a trial to 5 of the Kansas by jury pursuant constitutional § Rights by Bill been violated misconduct. Constitution has rights of a are party See K.S.A. 60-444. Where opposing is an matter by juror, affected the misconduct of a there granted. trial bemay to be considered and a new public policy part of a 60-259(a). Improper K.S.A. conduct on See unit, as a charged panel, jurors operate to the entire as the and, discouraged that misconduct be public policy and demands to We have found advisable possible, prohibited. insofar as which comes to the misconduct permit inquiry juror’s into a be verified or may other members of the and attention of panel Heathman, 417, 420, 690 236 Kan. City denied. Ottawa v. seeking an order (1984). party P.2d The burden is on the 1375 order. recalling jurors necessity to show the for the answer recalling of a new trial or to for granting the trial court. is within the sound discretion of Macomber, 244 Kan. 769 60-259. See State v. K.S.A. (1989). P.2d 621 judicial according judgment; act to one’s and
“Discretion is the freedom to
act, applying
judge
the rules
implies
liberty
to act as a
should
discretion
examining
weighing
analogies
after
and
of the law to the facts found
consideration,
judicial
arbitrarily.
the evidence —to act
fair
and not
acting
When so
in a matter
to the discretion
committed
of the court
ought
court,
judgment
reviewing
law the
not
to be
overruled
right
deny
given by
be
do so would
to exercise
the discretion
Foren,
654, 658-59,
law itself.” State v.
(1908).
Kan.
cumstances permitted the decision would be to stand.’ Overton, Discretion, Meaning 3, in Discretion of Judicial Judicial (Smithbum 1991).
“Legal discretion is a readily comprehended
It
concept. means
nothing more than the application of statutes and principles
to
all of the facts of
62,
a case.” Shopiro v. Shopiro, 153 P.2d
(Cal. App. 1944). “Discretion in performing an act arises when
it may be performed in
way,
than one
any]
[more
of which would
lawful,
be
and where
is
left to the will
judgment
performer
to determine
in
way
which
it shall be performed.”
Arant,
Texas Indemnity
Ins. Co. v.
171 S.W.2d
919 n.1
(Tex. Civ. App. 1943). A decision which is
contrary
the evi
dence or the law is sometimes
referred to
abuse of dis
cretion, but it is nothing more than
decision,
an erroneous
or a
judgment
rendered in
State,
violation of law.
v.
12 Ga.
Griffin
615, 621,
App.
The trial has unfettered discretion when ruling is not subject to appellate situation, review. “In this the trial judge king is much like the fictional of common law who ‘can do no ” Wallach, Much, in wrong.’ Discretion: How Judicial Judicial right grant Discretion 9. An is the or to example judge’s grant probation refuse to where there is no statutory presumption against for or probation. high degree
A of appellate judge’s deference is allowed a trial trial, exercise in assessing of discretion the texture and feel of the witnesses, credibility the perceived impact of an al- circumstances, legedly prejudicial event. these de- appellate recognize cisions presumption often validity the exercise of discretion superior vantage point because of the trial judge. judge’s will though decision be affirmed even appellate might tribunal otherwise be inclined to take a precisely opposite view of the An example matter. of this presumptive validity of the trial judge’s ruling includes sustaining orders verdict and denying motions for a mistrial a civil case particularly where the unsuccessful challenger relies alleged insufficiency of the evidence to sustain the jury verdict. Another example is the trial judge’s conclusion that the miscon- counsel, duct of or some other untoward event in the course of grave was not sufficiently disturb verdict. A third example judge’s granting adjournments or denying and/or continuances. degree judicial amount and vary depending “[T]he discretion will on question presented the character of the *12 determination. the vast ma- instances,
jority non-discretionary judge’s choice must be made be- law, competing tween properly categorized, rules of and once the case is apparent the result perhaps proposition is ineluctable. Less is the that once discretionary ruling appears, occasion for a the amount and character vary widely. of the discretion will quantum Yet variance subject Wallach, degree systematic discretion is to some assessment.” at 12. violated,
If a constitutional or a statutory right has been the trial judge’s use of discretion is limited. Under these circumstances greater there is a need for by judge articulation the trial reasons for his “discretionary” decision. Discretion must be ex- ercised, to, with, in opposition not but accordance established principles of law. It is not arbitrary power. In its practical
732 state, judicial in this discretion is application syn- onymous with judicial power.
An exercise of discretion which results in an error of consti magnitude may tutional is serious and not be held to be harmless willing to a belief that it harmless unless the court declare Thus, a beyond may reasonable doubt. before a judge declare harmless, judge error must be able to a beyond declare little, reasonable doubt that the if any, error likelihood Bowser, having changed the result of the trial. State v. 252 Kan. White, 246 See State v. 582, 2, (1993). ¶ P.2d 1231 847 Syl. 393, 950, P.2d Kan. modified aff'd (1990). P.2d Here, the jurors were instructed not to discuss the case with who persons jury only were not members of the and to consider during the evidence introduced their jurors deliberations. The violated their oath and discussed statements that were material to the issue which were not made subject under oath and jurors’ cross-examination. Because the misconduct was not dis- verdict, covered until after the had rendered a the trial judge did not have opportunity question the jurors about give their additional protecting instructions right party’s affected to trial jury. a Where a juror’s misconduct issue, relates to a material the only way for a trial court to determine if the misconduct improperly jury’s influenced the ver- dict is inquire. to recall the
A review of the cited Kansas cases indicates the statutory pro- against hibition receipt of impeach jury evidence to a verdict showing the process by mental which the verdict was determined does not apply where party a claims the right constitutional a trial has by jury been by jury violated misconduct which has a substantial effect on the rights of that Where a party. party misconduct, alleges jury judge the trial is required to recall the if judge cannot determine that the supporting evidence party other is substantial and the jury misconduct did recalled, relate to a dispute. material issue in When the jury is may questioned be or evidence received as to physical facts, conditions, misconduct, juror’s occurrences either room, within or without the which were material to the being issues determined.
We note that counsel has cited no cases where there were two addition, separate acts of misconduct by jury members. Appeals Court of in its statement of facts failed to consider that (1) the doctor first stated he obtained information young from the daughter, (2) the doctor was unaware that Pablo’s wife was fluent English Spanish until deposition her prior was taken trial, (3) the doctor made the notations on Pablo’s chart after he death, and, learned of Pablo’s (4)all three affidavitsindicated that a majority of the jury initially voted “yes” questions to both submitted judge. We have reviewed the record and the Court of Appeals’ unpublished opinion and plaintiff conclude that has shown that right her to a fair trial was substantially affected by the jury misconduct.
A party right is denied the to a fair trial when juror introduces evidence on material issues of fact to the jury during its delib- erations. Plaintiff because, did not receive a fair trial under the case, facts of this the two incidents of jury misconduct introduced extraneous evidence during jury deliberations which had a sub- stantial effect the issues and the validity the verdict. The trial judge’s refusal to recall the jury and determine whether the extraneous evidence substantially affected the jury’s verdict was error requires which that plaintiff receive a new trial.
Reversed and remanded for a new trial.
Davis, J., not participating. J., dissenting: The issue before us is whether or
McFarland, not the trial court’s denial of plaintiff’s motion for a new trial constitutes an abuse of judicial discretion. discretion is abused judicial when action is arbitrary, Judicial
fanciful,
unreasonable,
which is another way of saying that
discretion is abused only when no reasonable person would take
the view adopted by the trial court. If
persons
reasonable
could
differ as to the
propriety
court,
the action taken by the trial
then it cannot be said the trial court abused its discretion. State
Lumbrera,
v.
¶
Syl.
A the Kansas of of panel Appeals of Court Larson, Davis, and Rulon reviewed herein and has the record judicial concluded of has unanimously no abuse discretion been (Memorandum 1992.) agree filed I opinion May shown. panel’s conclusion. involving very
Issues claims of misconduct fact specific, are both as to what misconduct and the nature occurred as to of the trial, including pertinent evidentiary matters and issues involved. Therefore, alleged in order to view the in proper perspective, it is forth necessary to set a rather detailed account of the pertinent issues and trial evidence. Inasmuch this is a dissenting opinion, an effort must be unduly made riot to be repetitive of which forth in majority opinion. is set agree I with the and majority opinion opinion Court Appeals that the comment ability as to the child’s to speak Spanish speculation of cocaine overdose constitute jury misconduct.
As noted in the in majority opinion, order to prevail plaintiff “First, had to prove three claims: prove she needed Winger’s treatment of Pablo fell below the required standard of care, i.e., Second, that Dr. Winger negligent. she had to prove the negligence doctor’s substantially caused or contributed Third, to Pablo’s death. she had to prove that she sustained damages because Pablo’s death.”
It is uncontroverted that plaintiff damages sustained as a result death, of Pablo’s and that claim not herein. involved claim, Let us first look at the Winger first that Dr. neg- ligent. An unknown man in his mid-30’s a physician’s comes to office complaining of pain chest and numbness in his arms. Both plaintiff’s medical experts testified that symp- virtue these toms (especially in a patient) new heart had disease to be con- possible sidered as a cause thereof. In order to rule cardiac out, problems Dr. Winger should have ordered EKG test. One of experts felt enzyme certain tests should also have been ordered. Both testified the failure to order the EKG was negligence, with one expert testifying the failure to order the enzyme testing was negligent. also following special questions were submitted to the jury: procedures Winger diagnosis making “1. Did the used in rendering care and treatment Saucedo Pablo fall below the standard of required Kansas, family general practitioner Hugoton, care of a or com- size, existing?” munities of similar under the circumstances Saucedo, Winger’s diagnosis “2. Did Dr. and treatment or Pablo thereof, lack cause or contribute death Pablo Saucedo’s lessen his chances for survival?” 1 in question answered No. the affirmative. Whether spoke the child Spanish was relative only determining whether Dr. adequate conducted an examination of Pablo at the It nothing doctor’s office. to do with the issue of the *15 cause of death. Pablo’s On issue of Dr. Winger’s whether care, fell conduct below the plaintiff standard prevailed. The plaintiff has the proof burden of to show prejudice. Inasmuch as prevailed she the only on claim that the comments about the to, child related I find concluding no basis for that the trial court’s grant refusal ground a new trial on this constitutes an abuse of discretion.
Let us focus on the that plaintiff second claim had to prove— Dr. Winger’s that conduct caused contributed to Pablo’s death. This is the claim involved in the cocaine comment. autopsy performed
There was no herein plaintiff’s request. at Accordingly, pathologist no testified as to the cause of death. Plaintiff called two physicians (the to establish cause death care). same two who testified as to facts standard available to each were Pablo’s medical compiled day records on of his (from Winger death Dr. and the local hospital). Winger Dr. di- agnosed suffering Pablo as gastroenteritis. from bronchitis and plaintiff’s Both of experts agreed diagnosis. this It theory was the of the plaintiff that Pablo from coronary died disease, myocardial either a arrhythmia. infarction or cardiac It theory was asphyxia inhaling defendant’s that Pablo died of from vomit. There was evidence each of these supporting possible causes of death. Plaintiff’s did experts give strong testimony death, on the cause of but purposes herein let us assume death was coronary from What was there disease. evidence Winger Dr. caused or contributed Pablo’s death? morning
On question, in Pablo went to work. He came home about a.m. complaining 10:00 of chest arm numb- pains and regular
ness. Pablo had no so Pablo his physician, family and went Dr. It Winger morning. was after 11:00 A.M. when by Winger. Pablo was examined The doctor’s is a short office distance from hospital adjacent nearby building. the local consultation, After the Pablo was directed to walk to the hospital x-ray. for a chest This he family Winger and his did and Dr. joined them when notified the x-ray ready. Winger it, looked at was dissatisfied with quality picture, directed that another be taken. This was done.
Pablo was sent home a little before stopped by noon. He workplace where his paycheck was picked up and went home from there and laid down. immediately, Almost he went into convulsions, and his face purple. turned An ambulance was sum- him, moned. Despite attempts to revive signs no vital were ex- hibited. He was transported back to the hospital. Plaintiff testified that about 30 minutes had elapsed between the time left they the hospital and returned thereto. Resuscitation was attempted and Pablo pronounced dead shortly p.m. before 1:00 lacking
Evidence significant. this case Neither of plaintiff’s experts medical testified Dr. should have treated Pablo as a medical him emergency transported for immediate hospitalization. Neither faulted Dr. Winger for having patient walk to the hospital for the x-ray. expert One persons testified having myocardial good infarction have survival *16 if hospitalized, rate but neither said Pablo should have been hospitalized by Winger. One expert stated an EKG takes minutes, about 10 and the enzyme test can take as little as one hour to perform.
One keep must in mind the short time frame involved herein. The evidence of Dr. Winger’s falling below the pro- standard of fessional conduct was failure to order additional tests. There was no testimony that the failure to order the test or tests caused or that, contributed to Pablo’s death or if Winger performed properly, Pablo would have survived or been more likely to survive. facts,
In the context of these we juror have a comment that plaintiff’s uncle was a cocaine dealer and had been with Pablo two days previous to his death and the speculation that Pablo might have died drug of a overdose. explanation One note of is having in The uncle’s been with Pablo two days order here: before in part his death came out the evidence and was not a of the misconduct. jury
The trial court herein characterized the cocaine statement as comment,” a “wild which was a part processes mental hammering jury out a verdict that cannot be considered seriously affecting judgment grounds as and is not for a new trial. The court found the comments of Bultman jury to be miscon- duct, but that this did affect the jury’s determination of the cause of Pablo’s death. herein, affirming
In judgment the Court Appeals stated: ruling allegation directly pages “The district court’s on this came from the Hardin, 517, 523, (1966), of Brown v. Kan. P.2d 912 where the court said: is, being every expression ‘Human opinion nature what it if wild made hammering in a room the throes of out a verdict could be made preserved. the basis for retrial verdicts could seldom be Such in- verdicts, quiries validity processes into the based on mental Kansas, law, jurors, formerly by are foreclosed in case now statute.’ 60-441, referring “The statute to which the Brown court is is K.S.A. which reads: ‘Upon inquiry validity as to the of a verdict or an indictment no statement, conduct, any evidence shall be received to show effect of influencing event or condition the mind of a him or her to concerning assent to or dissent from the verdict or indictment or the mental ” processes by which it was determined.’ great In this country reposed confidence is in trial by jury. On well, the whole system works and no one has devised a better However, system securing justice. jurors beings are human is, being and human nature what it wild or “off-the-wall” state-
ments are during bound to be made jury deliberations. For ex- ample, seeking in trial damages whiplash for a injury, would surprising might not be at all that jurors comment on the seri- ousness or lack whiplash injuries thereof of If acquaintances. tape-recorded deliberations were and made available to coun- sel, there would unchallenged doubtless be few verdicts.
It easy in this case to let aspects some of the facts obscure the real issues. our society constantly health-conscious which is warnings, bombarded with health lay people few would not be *17 alerted possible heart attack problem by just hearing about a. Assuming and numb all pains
Pablo’s chest arms. complained-of Winger’s how Dr. examination of Pablo plaintiff’s statements (as opposed Winger’s versions), are true to Dr. was conducted Winger’s criticize in Dr. there is much to actions. However, tragic.
Pablo Saucedo’s death was in order to find therefor, liable advised it had properly Winger’s to find Dr. conduct caused or contributed to Pablo’s death or specific question lessened chance survival. This jury. was asked of the It deliberated six hours and answered the negative. A question “yes” answer would have had to be based upon expert testimony lacking herein. —evidence I find no abuse discretion the trial denial of court’s motion for a new trial. The cocaine statement was a wild comment which has not been shown to have prejudiced plaintiff’s case under the I facts herein. would affirm the district court and the Appeals.
Court of
Six, J., joins foregoing dissenting opinion.