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Physician Not Dismissed as Juror; Failure to Diagnose Diverticulitis


A woman who had recently been diagnosed with diverticulitis by her primary care physician went to the emergency room (ER). The ER physician examined the woman and took a history. The woman told the ER physician about the diagnosis of diverticulitis. The ER physician diagnosed and treated the woman for irritable bowel syndrome.

 

The woman’s bowel ruptured. The woman underwent emergency surgery. The surgery removed 90% of the woman’s large intestine and left the woman with a colostomy bag.

 

The woman sued the ER physician for medical malpractice. The complaint asserted that the ER physician’s negligent care and treatment caused the woman’s injuries. Specifically, the complaint claimed that the ER physician improperly diagnosed and treated the woman for irritable bowel syndrome.

 

The ER physician argued that the ER physician met the standard of care in the treatment of the woman in the ER. The ER physician asserted that nothing, including antibiotics or a CAT scan, would have prevented the woman’s injuries. According to the ER physician, after the ER physician diagnosed the woman with irritable bowel syndrome in the ER, the woman developed an obstruction. The obstruction led to a perforation located on the other side of the woman’s bowel from where the diverticula is located. The ER physician argued that the obstruction and perforation, which were not present during the examination of the woman in the ER, were what led to the surgery.

 

The case proceeded to a jury trial. During jury selection, one prospective juror explained having been an internal medicine physician for 20 years. The prospective juror explained that the prospective juror had experience diagnosing and treating diverticulitis and irritable bowel syndrome. The prospective juror stated that it would be difficult to sit on a jury on a medical malpractice case and be totally fair and impartial, but that the prospective juror would certainly try. The Cuyahoga County Court of Common Pleas asked the prospective juror whether the prospective juror could be fair and impartial and the prospective juror answered yes. The woman asked if the prospective juror would file a medical negligence claim against a fellow physician if the prospective juror thought that the doctor was negligent. The prospective juror responded that the prospective juror would not. The prospective juror stated that the believe that most medical malpractice cases were legitimate and that the prospective juror would be comfortable returning a verdict in favor of a patient. The prospective juror told the trial court that the prospective juror could follow the burden of proof in the case, weigh the testimony of the experts, test the credibility of the witnesses, and set aside any prejudices in rendering a verdict.

 

The woman asked the prospective juror about the signs, symptoms, and manner in which the prospective juror diagnosed diverticulitis and whether there was a difference in the diagnosis of diverticulitis in the office setting as opposed to the ER setting. The ER physician objected. The trial court sustained the objection.

 

The woman asked the trial court to excuse the prospective juror for cause. The woman argued that the prospective juror was an internal medicine physician who leaned in favor of the defense because the prospective juror would not pursue a medical negligence case against a fellow colleague even if the prospective juror believed there were good grounds to do so. The trial court refused to excuse the prospective juror.

 

The Eighth District Court of Appeals of Ohio, Cuyahoga County, affirmed. The court held that the trial court did not abuse its discretion when it refused to excuse a potential juror, who was an internal medicine physician, for cause; and the trial court did not err in refusing to allow the prospective juror to answer questions about diverticulitis.

 

The trial court did not abuse its discretion when it refused to excuse a potential juror, who was an internal medicine physician, for cause. The court found that the record was void of evidence that the prospective juror would not follow the law or would not be fair and impartial. Specifically, the court found that the prospective juror’s answers to the voir dire questions did not disclose that the prospective juror could not follow the law or be fair and impartial or that the prospective was biased in favor of the ER physician. The court declined to adopt the position that any potential juror who has specialized experience, education, or knowledge about a field of study at issue in a case, must be excused for cause even if that prospective juror states that he or she will be fair, impartial, and will follow the law. The court reasoned that to find that the prospective juror’s specialized knowledge required automatic dismissal would contradict the very reason why Ohio law permitted the impaneling of “good jurors”-- those whose knowledge and experience can lend wisdom to the jury. The court concluded that the woman failed to establish the existence of facts to support a valid principal challenge that the prospective juror would not be fair and impartial, would not follow the law as given by the trial court, or was biased, which would have required the trial court to automatically excuse the prospective juror for cause.

 

The trial court did not err in refusing to allow the prospective juror to answer questions about diverticulitis. The court reasoned that the questions asked by the woman were aimed at the very issues dispositive of the medical malpractice case. Permitting the prospective juror to answer had the potential of confusing and tainting the views of other prospective jurors about a material fact that should only have been decided by the jury based upon the evidence presented at trial.

 

The Eighth District Court of Appeals of Ohio, Cuyahoga County, affirmed the trial court’s entry of judgment on a jury verdict in favor of the ER physician.

 

See: Cordova v. Emergency Prof’l Servs., Inc., 2017 WL 3530922 (Ohio App. 8 Dist., August 17, 2017) (not designated for publication).

 

See also Medical Law Perspectives Report: Gut-Wrenching Pain: Liability Risks Related to Gastrointestinal Disorders

 

See also Medical Law Perspectives Report: When Urgency Leads to Errors: Liability for Emergency Care

 

 

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