Powell v. Amin

Barnes, Judge,

concurring specially.

I fully concur in the result in this case, and in Divisions 1, 3, and 4. I write separately because the trial court should have excused juror Burch for cause. Unlike the situation in Kim v. Walls, 275 Ga. 177 (563 SE2d 847) (2002), in which the trial court would not allow the plaintiff’s counsel to further question a juror who was a nurse working with the defendant doctor, the trial court in this case merely offered Powell the opportunity to ask for the fourth time whether this juror, a current patient of the defendant’s, could be fair. Since the juror had already answered that question three times regarding her various relationships with the doctor, Powell’s decision not to ask yet again does not constitute failure to conduct further voir dire to establish the basis for her objection.

In addition to the fact that the defendant in this case delivered the juror’s children, she was a current patient of the defendant’s. Powell moved to strike her for cause because she was a current *764patient and submitted that “a current patient of a doctor cannot be fair and impartial in a case like this.” The trial court pointed out that the issue was not the doctor-patient relationship itself, but whether the juror could be fair and impartial without being influenced by the fact that she was the defendant’s patient. The trial court then offered Powell the opportunity to question the juror again on that issue, to which Powell replied, “I think we’ve already asked [her] that. . . .” The trial court responded that Powell could ask again, to which she replied, “I think we’ve already asked them one [time].”

Defense counsel pointed out that the relationship itself did not disqualify the juror, and Powell noted that the decision was within the court’s discretion. The trial court replied, “I’m going to leave that for a future appellate decision. I’m going to follow the law,” and did not excuse the juror for cause.

The juror’s earlier responses to whether she could be fair are mostly equivocal at best. Upon learning that the juror was a current patient of the defendant’s, Powell asked, “Ms. Burch, realizing all these relationships that you’ve told us about previously and the fact that you are currently a patient, do you feel that you could be fair and impartial in this case?” The juror replied, “All I can say is I’ll try my best to.” This response came after Powell had the following exchange with the juror, who was a nurse at the hospital perinatal department where she had contact with the defendant:

POWELL: Realizing that relationship and that you’re going to be seeing Dr. Amin after this is over with, would your relationship with him affect your ability to be fair and impartial in this case?
JUROR: I. . . .
POWELL: Would you feel uncomfortable sitting on the case?
JUROR: (Nods head up and down.)
POWELL: Would you rather not sit on the case?
JUROR: Yes, sir.
POWELL: I’m going to ask the question, try to, what Judge Blount asked you. Could you take the evidence that is presented in this case and the law that’s going to be given to you by Judge Blount and render a fair and impartial verdict based on strictly the evidence and the law, not giving any consideration to any outside influence such as your relationship with Dr. Amin?
JUROR: I could be fair.

In the next exchange, after the juror said that the defendant had delivered her children, Powell asked, “Realizing that he delivered one of your children and realizing the close relationship that exists there *765between doctor and mom, could you be fair and impartial?” The juror responded, “I could be fair; but, I mean, it’s going to be hard for me.”

Decided July 15, 2002 Reconsideration denied July 29, 2002 Ronald W. Hallman, Berrien L. Sutton, James D. Hudson, for appellant. Coleman, Talley, Newbern, Kurrie, Preston & Holland, Wade H. Coleman, Gregory T. Talley, Keith H. Solomon, for appellee.

In exercising its broad discretion as to strikes for cause, a trial court should consider the peculiar nature of the relationship between an obstetrician and his pregnant patient. It is difficult to imagine many more intimate relationships than this one. Further, this defendant apparently delivered more than one child for this juror, who therefore thought enough of him to return to him for the delivery. Based on the juror’s equivocal responses about her ability to be fair in this situation, the trial court abused its discretion in declining to strike this juror from the panel for cause.