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The question of when a potential juror should be removed automatically from a medical malpractice case because she has too close a relationship with the doctor-defendant returns to the Georgia Supreme Court next week. It’s an issue that has divided not only the state’s plaintiffs’ lawyers and the medical defense bar, but also the judges of the Georgia Court of Appeals and the justices of the high court. Six years ago, Presiding Judge Marion T. Pope Jr. wrote for a three-judge appeals court panel that allowing a patient of a doctor-defendant to sit on a jury was unfair to the plaintiff and “makes a mockery of our judicial system in the eyes of the public.” The case was Baxter v. Cohen, 220 Ga. App. 893 (1996). The next year, however, a unanimous Georgia Supreme Court reversed, saying it would not create a rule that automatically removed patients of doctor-defendants from the jury pool. “A per se rule cuts too broadly and is inconsistent with the traditional discretion given trial courts in this area,” wrote then-Presiding Justice Norman S. Fletcher. Fletcher added that a bright-line rule against jurors who were patients of the defendant would make it hard to obtain a full jury panel in rural counties. Cohen v. Baxter, 267 Ga. 422 (1997). For an oral argument set for April 16, the justices have asked lawyers in another medical malpractice case to explain how the Cohen decision applies to a trial judge’s refusal to remove for cause a nurse who had worked with a doctor-defendant. QUESTION OF UNBALANCED SCALES The new case comes from Albany, Ga., where Ed Walls sued Dr. Tae Won Kim, who had treated Walls’ wife, Patricia, after she went to an emergency room complaining of a cramp in her left calf and shortness of breath. Kim ordered tests, but the woman died a week later of a pulmonary thromboembolism, according to court records. Ed Walls sued Kim for wrongful death, and a trial started in 2000 before Judge John F. Salter Sr. of Dougherty State Court. At voir dire, the jury pool included a nurse, identified in court briefs only as “Juror McDole,” who had worked with Kim in the emergency room — though not when Walls was admitted. Walls’ lawyer, Del Percilla Jr. of Albany, asked McDole, “Given your relationship with Dr. Kim, would you, knowing nothing about the case, hope that things came out Dr. Kim’s way?” “Probably,” the nurse answered. Percilla then asked whether it was fair to say “we don’t start off with the scales equally balanced because of your professional relationship with Dr. Kim.” “That’s a fair statement,” McDole said. Percilla then asked Salter to strike McDole from the jury pool for cause, meaning Percilla would not have to use one of his six peremptory strikes on the nurse. Before ruling, Salter asked McDole whether, after hearing all the facts and being charged with the law, she could “set aside your personal feelings and make a decision in this case which speaks the truth based upon the evidence that you’ve heard?” “Yes, sir,” she replied. Percilla jumped back in, pressing McDole that it was fair to say “we don’t start out even with the defendant.” “Yes, sir,” McDole said, but then she started to reverse course. Percilla asked, “I’ve got to come up to even and then go above that to convince you: Correct?” “I don’t think so,” McDole said. “Well, you said we don’t start off even,” Percilla reminded her. “It’s only because I know Dr. Kim,” she said. “I mean, I’ve only worked with him, met him. I’ve never met the defendant [sic].” Percilla continued, “You favor one side over the other without having heard anything about the evidence — is that correct?” “No, sir,” McDole said. Salter maintained that McDole could not be removed for cause. Percilla used a peremptory strike to remove her. After about three days, the jury found that Kim was not liable for Patricia Walls’ death. REHABILITATION But last year, a seven-judge panel of the Georgia Court of Appeals voted 6-1 that Walls was entitled to a new trial because Salter should have removed the nurse automatically. “In too many cases,” Presiding Judge Edward H. Johnson wrote for the majority, “trial courts confronted with clearly biased and partial jurors use their significant discretion to ‘rehabilitate’ these jurors by asking a version of this loaded question: After you hear the evidence and my charge on the law, and considering the oath you take as jurors, can you set aside your preconceptions and decide this case solely on the evidence and the law? “Not so remarkably,” Johnson added, “jurors confronted with this question from the bench almost inevitably say ‘yes.’ ” Walls v. Kim, 250 Ga. App. 259 (2001). Pope, who authored the appeals court’s Cohen decision in 1996, joined Johnson, along with Presiding Judge J.D. Smith and Judges Anne E. Barnes, John J. Ellington and Herbert E. Phipps. But Judge John H. Ruffin Jr., who had joined Pope in Cohen, dissented. Despite agreeing with almost all of the majority opinion, Ruffin said the result “ignored controlling Supreme Court precedent” — the 1997 Cohen decision that overturned the appeals court. Ruffin added, “While it is almost certainly true that many potential jurors enter the jury pool with certain biases, that does not justify creating per se rules excluding broad classes of jurors, such as co-workers.” Kim appealed to the Georgia Supreme Court, which in January voted 6-1 to grant certiorari. Curiously, now-Chief Justice Fletcher voted against reviewing a decision that Ruffin said ignored Cohen, which Fletcher had written. Representing Kim, Albany lawyer W. Earl McCall wrote that, “the Court of Appeals has attempted to create a rule of exclusion based on the nature of the relationship” — a rule that would necessarily require the supreme court to overturn Cohen. ‘POTENTIAL DEVASTATING EFFECT’ In an amicus brief for malpractice insurer MAG Mutual Insurance Co., Atlanta lawyer Thomas S. Carlock repeated Fletcher’s concern in Cohen that a per se rule could make it hard for rural communities to impanel juries. Predicting a “potential devastating effect” on Georgia’s medical community if the appeals court ruling is upheld, Carlock pointed out that 80 of the state’s 159 counties have fewer than 20,000 residents, and 26 percent of Georgians are younger than 18 years and are disqualified from sitting on a jury. In an amicus brief authored by a group of prominent plaintiffs’ lawyers — James E. Butler Jr., Joel O. Wooten Jr., Thomas W. Malone and Richard A. Griggs — the Georgia Trial Lawyers Association argued the appeals court ruling does not create a hard and fast rule that the Cohen decision would not allow. The lawyers argued that the appeals court decision merely gives trial judges clear instructions on how to use their discretion in voir dire. Judges are not to use “leading questions” to “rehabilitate” biased jurors, the lawyers added, and “[T]he trial judge is now cautioned to err on the side of dismissing a biased juror rather than retaining the purportedly rehabilitated juror.” In criminal cases, both the appeals court and the supreme court have taken a hard stance against judges rehabilitating jurors with follow-up questions during voir dire. In a 1992 case, Lively v. State, 262. Ga. 510, the supreme court reversed the conviction of an alleged murderer because a juror was the victim’s employer and had been a pallbearer at the funeral. Percilla, the plaintiff’s lawyer in the case to be argued at the high court Tuesday, said the appeals court decision “doesn’t help the plaintiffs bar or the defense bar.” He said each side has had to use peremptory challenges to remove jurors who should have been removed automatically. Indeed, Percilla said that in the Wall v. Kim trial, the defense used one of its peremptory strikes to excuse a juror who was the next door neighbor of the dead woman’s parents — a woman who said she could not be impartial in a case involving someone she had watched grow up.

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