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TX: did '100% certainty' criteria taint jury?: jury verdict for defendants in med-mal upheld.

CASE FACTS: Dr. David Smith, a dentist, underwent aortic valve replacement surgery to correct a blood flow problem that Dr. William Dean, a cardiovascular surgeon, had helped diagnose. During the surgery, which was performed by Dr. Dean and Dr. Olyn Walker, the patient suffered an injury due to inadequate blood flow. Consequently, the patient required a heart transplant, which he received eight days later. Consequently, the patient and his wife sued Dr. Dean and his practice group for medical malpractice alleging direct and vicarious health care liability claims. At voir dire, the plaintiffs' attorney questioned several of the prospective jurors about their feelings regarding medical malpractice claims and the burden of proof required to find economic damages. Many of the prospective jurors subjected to voir dire by the plaintiffs' attorney responded that they would have to be absolutely positive that a physician was guilty of medical malpractice before they would award damages to a patient who claimed to be a victim of medical malpractice. Subsequent to voir dire, the trial judge conducted a hearing outside of the presence of the prospective jurors regarding the first seven jurors whom the plaintiffs' attorney challenged for cause because they said they could not follow the trial court's instructions on the burden of proof even after the trial court had clarified the process. The trial judge granted those challenges. The trial judge also granted the plaintiff's challenges to another juror who said he would "require 100 percent certainty before making the defendants pay any type of damages. The trial judge next addressed what was termed a "block group" all of whom, when asked how they felt about the prospective juror with the "100 percent certainty" criteria, stated they agreed with him. Eight of the members of the "block group" ended up on the jury. The plaintiffs argued that if the trial judge permitted the eight jurors to be seated on the grounds that they had been "rehabilitated" would constitute error by the trial judge. The trial judge denied the plaintiffs' request. The plaintiffs appealed the jury's verdict for the defendants.

COURT'S OPINION: The Court of Appeals of Texas affirmed the judgment entered on the jury verdict for the defendants. The court held, inter alia, that the jurors were not biased as a matter of law and were successfully rehabilitated by the defendants' attorney and the trial judge, and that the trial judge did not abuse his discretion in overruling the plaintiffs' challenges and seating the eight jurors. Editor's Note: It is respectfully submitted that not all courts' would have reached the same decision the court did in this case. Smith v. Dean, TXCA No. 2 2-06-042 (05/10/2007) S.W.3d -TX

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Title Annotation:Medical Law Cases of Note
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Date:Jun 1, 2007
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