Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Stopping just short of calling a precedential Kentucky Supreme Court decision naive and ignorant, Kentucky’s intermediate Court of Appeals ruled on Dec. 31 that potential jurors who were an obstetrician’s present patients could not hear a malpractice suit against him. The first impression ruling throws out a jury’s 9-3 verdict in a suit filed against Dr. Kurt Jaenicke by Charlene McCarty and her husband, Shannon, following the stillborn birth of their baby boy after a 37-week pregnancy. McCarty v. Jaenicke, No. 2002-CA-002095. During voir dire, two potential jurors in the McCartys’ May 2002 trial had disclosed that they were Jaenicke’s patients. Nonetheless, the trial judge denied the McCartys’ motion to strike them for cause. Instead the court gave Jaenicke’s counsel the opportunity to rehabilitate the candidates and denied the McCartys’ motion to strike for cause all Jaenicke’s patients on the panel. Consequently, the McCartys were forced to exhaust their peremptory strikes on the patients. The McCartys’ lawyer had argued that trying the case before the defendant’s patients was unduly burdensome. “If these were clients of the lawyer they certainly wouldn’t be sitting on the jury,” he said. On appeal, they asked that Kentucky adopt a rule that a defendant obstetrician’s current patients be excused for cause. Jaenicke countered that in Altman v. Allen, the Kentucky Supreme Court specifically rejected such a rule. That 1992 case concerned an obstetrician’s former patients sitting in judgment of him. Reinstating a verdict for the defendant obstetrician, the high court had said, “no court should speculate so as to presume a special bond between a woman and her obstetrician.” Noting that both the McCartys and Jaenicke cited cases from other jurisdictions to support their positions, the Court of Appeals applied precedent from decisions on lawyers associated with potential jurors and held that the trial court erred in failing to dismiss the doctor’s patients for cause. While it noted that the state Supreme Court’s commentary in Altman was mere dicta, and distinguished former patients from present patients, the appeals court took a backdoor route to criticize the high court’s reversal of its own Altman ruling. “While we do not go so far as to say that our Supreme Court’s dicta in the Altman case is ‘incredibly naive’ or ‘ignores reality’ as asserted by Justice Charles M. Leibson in his dissent in that case, we do hold that the failure of the trial court to strike the two jurors who had a current doctor-patient relationship with the defendant doctor in this case warrants a new trial.”

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.