Saxon v. Stokes

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT

BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING

EXCEPT AS PROVIDED BY RULE 239(d)(2),
SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

James Bruce Saxon, Jr.,       
Appellant,

v.

Curtis Stokes, M.D.,       
Respondent.

Appeal From Colleton County

John M. Milling, Circuit Court Judge

Unpublished Opinion No. 2005-UP-132

Submitted February 1, 2005 – Filed February
22, 2005   

AFFIRMED

James H. Moss, of Beaufort, for
Appellant.

Stephen L. Brown, John Hamilton
Smith, and Matthew K. Mahoney, all of Charleston, for Respondent.

PER CURIAM: In this medical malpractice
action, we must decide whether the trial court erred in seating two jurors,
one of whom identified herself as a current patient of the Respondent physician
and the other who identified himself as a former patient of another physician
in the Respondent’s medical practice.  Over Appellant’s objection, the trial
judge impaneled these jurors.  We find no abuse of discretion and affirm the
trial judge’s ruling.

FACTS/PROCEDURAL HISTORY

Appellant James Bruce Saxon, Jr., brought
this medical malpractice action against Respondent Curtis Stokes, M.D.  At the
time this case was brought to trial, Dr. Stokes was one of six doctors practicing
general medicine at Walterboro Family Practice, P.A., in Colleton County.  Walterboro
Family Practice, however, was not a party to this action. 

During jury venire, the trial judge asked
the pool of potential jurors whether they had any connection with Dr. Stokes
or the other physicians or employees of Walterboro Family Practice.  Twenty-nine
jurors responded affirmatively.  When individually questioned by the trial judge,
some jurors indicated they were current or longstanding patients of Dr. Stokes
or the other physicians in his practice, while others responded they were treated
only once or twice by these doctors—in some cases, years ago. 

Saxon requested that all jurors who were
being treated by Dr. Stokes and his associates be stricken for cause, arguing
this doctor-patient relationship would unavoidably hinder these jurors’ ability
to view the case impartially. The trial judge disagreed, finding all but one
of the twenty-nine affected jurors—based on their responses—could serve fairly
and impartially.

As the jury was being drawn, Saxon used
all four of his peremptory strikes to excuse jurors who had identified themselves
as having a connection to Dr. Stokes or his medical practice associates.  However,
two of the affected jurors were drawn after all of the peremptory strikes had
been exhausted.  These two jurors—juror number 125 and juror number 158—were
both impaneled on the jury despite Saxon’s general objection that any juror
who had been treated by Dr. Stokes or his associates be struck from the jury.

During the initial jury venire, both juror 125
and juror 158 were individually questioned by the trial judge.  Juror 125 identified
herself as a current patient of Dr. Stokes:

JUROR: My name is Robertson,
125.

THE COURT: Thank you.  Ms. Robertson,
whom is it that you recognize?

JUROR: Dr. Stokes and also Dr.
Hyatt.

THE COURT: And are they your
family physicians?

JUROR: Yes, sir.

THE COURT: And are you -- have
you seen them in the last six months?

JUROR: Yes, sir.

THE COURT: And as a result of
that type of relationship you have with those doctors, can you be fair and impartial
to both the Plaintiff and Defendant in connection with this case?

JUROR: Yes, I can.

Juror 158 identified himself as a former patient
of another physician practicing with Dr. Stokes:

THE COURT: Yes, sir?

JUROR: James Walker, Number 158.

THE COURT: Yes, sir, Mr. Walker.
Whom do you recognize?

JUROR: Dr. Johnson used to be
my doctor many years ago.

THE COURT: And as a result of
that type of relationship, can you be fair and impartial to the Plaintiff and
to the Defendant?

JUROR: Yes. 

Both of these jurors were impaneled on
the twelve-member jury that decided the case—finding in favor of Dr. Stokes. 
This appeal followed.

STANDARD OF REVIEW

The decision to disqualify a potential juror for
bias is committed to the sound discretion of the trial judge and that decision
will not be overturned absent an abuse of discretion. Abofreka v. Alston
Tobacco Co., 288 S.C. 122, 125, 341 S.E.2d 622, 624 (1986); Palmetto
Bank v. Rowland, 275 S.C. 38, 40, 267 S.E.2d 426, 426 (1980).

LAW/ANALYSIS

          Saxon claims the trial judge abused his
discretion in failing to disqualify juror 125 and juror 158 from serving on
the jury.  Saxon makes two legal arguments here: first, that this court should
adopt a per se rule that all ongoing patients of a physician involved
in a medical malpractice action be disqualified from serving on the jury, and,
alternatively, absent a per se rule, juror 125 and juror 158 should
nevertheless have been disqualified in this case.  Dr. Stokes, however, claims
that Saxon failed to preserve these issues for appeal.

I.  Preservation of Issues for Appeal

We first address the questions raised
concerning issue preservation. 

Respondent argues that Saxon failed to specifically
raise an objection to the qualification of jurors 125 and 158, thereby waiving
any right to appeal the trial judge’s decision to allow these jurors to serve.
[1]   We agree in part.

After carefully reviewing the transcript
of the jury selection process contained in the record before us, it is clear
that Saxon’s objection regarding juror disqualification focused primarily on
those jurors who had identified themselves as current patients of Dr. Stokes. 
Saxon voiced much less concern about those jurors who had been treated many
years ago or were treated by the other physicians of Walterboro Family Practice. 
Arguably, therefore, Saxon abandoned his request
to disqualify all but the current, ongoing patients of Dr. Stokes.  However,
despite this almost exclusive focus on the current patients of Dr. Stokes in
argument to the trial judge, Saxon’s counsel did, by way of caveat, add: “I
mean, we think that all former or current patients of the
firm should be stricken, but . . . ” (emphasis added).  While a close
question is presented, we find this statement preserves Saxon’s general objection
to any of the twenty-nine affected jurors being allowed to serve on the jury—whether
they were current or former patients of the defendant or any other physician
in his practice.

Part of Saxon’s argument to this court,
however, is that the trial judge was unable to reach a fully informed decision
about the ability of jurors 125 and 158 to serve impartially because he failed
to “reexamine” those two jurors individually as he had done with other jurors
specifically identified by Saxon.  We find this particular argument is
not preserved. 

The judge requested from Saxon a list
of the jurors in question.  Saxon furnished the list, and the judge agreed to
reexamine those jurors on the list.  Jurors 125 and 158 were not included on
the list, and they were not reexamined.  Following the judge’s reexamination
of those jurors identified on Saxon’s list, and just prior to jury selection,
the judge asked, “Anything else we need to do, as far as the plaintiff is concerned
prior to” the preparation of the strike sheet?    Saxon, through counsel, responded,
“No, sir, your honor.”  We find Saxon’s current challenge to the trial judge’s
failure to reexamine jurors 125 and 158 is not preserved. 

II.  Qualification of Jurors 125
and 158

Turning to the merits of Saxon’s broader
appeal, and in the application of current law, we find no abuse of discretion
by the trial judge’s qualification of jurors 125 and 158.

The circumstances of this case mirror
those in the case of  Roof v. Kimbrough, 297 S.C. 156, 375 S.E.2d 318
(Ct. App. 1988).  In Roof, the appellants claimed the trial judge erred
in “failing to strike for cause . . . any prospective juror who was being or
had been treated, or whose family members were treated” by the respondent physicians
in a medical malpractice action.  During voir dire, several members of the venire
responded that they themselves or a close relative had been treated by the respondents. 
The trial judge, however, individually questioned these jurors, and each responded
that his or her connection to the physicians being sued in that case would not
prejudice or prevent him or her from reaching a true and just verdict in the
case.  On appeal, this court found no abuse of discretion by the trial court
in impaneling those jurors. Id. at 158, 375 S.E.2d at 320.

We find the case at hand is squarely on point with
Roof.  As noted above, the trial judge included both jurors 125 and 158
individually in his initial questioning regarding the nature of their relationship
with Dr. Stokes and Walterboro Family Practice.  Both jurors responded unequivocally
that their respective connections to Dr. Stokes or his associates would not
prevent them from being fair and impartial.  Saxon cites no evidence indicating
these jurors were harboring any prejudice or otherwise being less than honest
in answering the trial court’s questions. 

Additionally, we must reject at this level
Saxon’s suggestion that such prejudice should be presumed and that we adopt
a per se rule barring any patient of a defendant in a medical
malpractice case from serving on the jury.
[2]    Our supreme court has signaled no intention to divest the trial courts
of the discretion to address the qualification of a juror in a medical malpractice
case as the circumstances of the individual case and the ends of justice require. 
We, as a mere error correction court, decline Saxon’s invitation to deviate
from precedent and adopt the suggested per se rule in medical
malpractice actions.  While we recognize the special relationship that exists
between patient and physician, policy matters such as this lie exclusively within
the supreme court.

CONCLUSION

Under existing law, we find no abuse of
discretion by the trial judge in denying Saxon’s request to disqualify jurors
125 and 158 from jury service in this case. 

AFFIRMED.

HEARN, C.J., KITTREDGE and WILLIAMS,
JJ., concur.        

    
[1] See United Student Aid Funds, Inc. v. South Carolina Dep’t of
Health and Envt’l Control, 356 S.C. 266, 273, 588 S.E.2d 599, 602 (2003)
(holding that an issue must have been raised to and ruled upon by the trial
court to be preserved for appellate review). 

    
[2] Saxon argues the circumstances of the present case are analogous to those
of Alston v. Black River Electric Cooperative, 345 S.C. 323, 548 S.E.2d
858 (2001), in which our supreme court adopted a rule that cooperative members
should per se be disqualified to serve on a jury where the cooperative
was a party.  The ruling in Alston was rooted in the court’s recognition
that cooperative members have an “inherent pecuniary interest in the case”
which would unavoidably hinder their ability to view the case impartially.
Id. at 331, 548 S.E.2d at 862.  Whether an Alston-type exception
should be recognized in a medical malpractice action—excusing for cause those
potential jurors who are current or former patients of the defendant physician—is
beyond the purview of this error correction court.