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Campbell v. Fox

OPINION FILED JULY 19, 1985.

PATRICIA RUTH CAMPBELL, PLAINTIFF-APPELLANT,

v.

RICHARD O. FOX, M.D., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Franklin County; the Hon. Loren P. Lewis, Judge, presiding.

PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

The plaintiff, Patricia Campbell, brought suit against the defendant, Richard Fox, M.D., for damages caused allegedly by his medical malpractice associated with the implantation of a silicone prosthesis in each of her breasts. A jury found in favor of the defendant, and the trial court denied the plaintiff's post-trial motion for a new trial. The plaintiff appeals from the judgment entered by the trial court upon the verdict, raising four issues: (1) whether the trial court abused its discretion in overruling a motion for mistrial upon extra-judicial contact between the defendant and a juror; (2) whether the trial court abused its discretion in overruling a motion for mistrial upon extra-judicial contact between a defense witness and a juror; (3) whether the trial court erred in refusing to admit into evidence letters between plaintiff's former counsel and a physician who had treated her after the defendant had; and (4) whether the trial court erred in refusing to grant a new trial upon defendant's improper closing argument.

On August 22, 1980, the defendant implanted a silicone prosthesis surgically in each of the plaintiff's breasts. About two months later she developed an infection in her left breast. Ultimately, on April 24, 1981, because of infection the defendant removed the prosthesis from the left breast. The removal occurred upon the plaintiff's return from a trip begun in January of 1981 as part of the plaintiff's work as a long-distance truck driver in cooperation with her husband. During that trip an opening developed in the plaintiff's left breast through which considerable drainage escaped and the prosthesis protruded. As a consequence of the infection the plaintiff's left breast was disfigured, and she subsequently underwent plastic surgery costing about $18,000, performed by another surgeon, Dr. Lorenzo Maun, in order to correct the disfigurement. At trial, which lasted four days, the testimony of the parties diverged widely on certain crucial matters about which we shall speak later.

• 1 With regard to the first issue presented for review, while plaintiff's counsel was making her opening statement, one of the jurors apparently became unconscious. After asking for some "C.P.R. treatment" the trial court asked that the jury be removed. Out of the presence of the jury, the trial court recited into the record a statement of what happened as follows:

"During the course of the opening statement, Juror Audrey Hart seemed to lose consciousness on a momentary basis. Her head rolled back and she appeared to be unconscious. The opening statements were interrupted and she was administered to by the defendant in this case, Doctor Fox, who carried her from her jury chair, her place in the jury box, to counsel table, at which point she seemed to regain consciousness and no further aid was administered at that time. The jury was removed from the courtroom and am ambulance was called. The ambulance attendants came in and removed Mrs. Hart, who was in a conscious condition at that time, and she has since been taken to the hospital and her husband is with her at the hospital and she appears to be alert and aware of what is going on.

* * * [A]t this point, it is my intention to proceed with the trial. We have already selected a jury. We are in the very early stages of the trial. We have an alternate juror present, and I don't see where this is going to be such a matter, at this point in the trial, as to be so inflammatory as to justify a mistrial, and I intend to proceed."

Counsel for plaintiff thereupon moved for a mistrial stating:

"[O]ur foundation for [the motion] is that Doctor Fox has, literally, scooped this lady up in his arms before the entire jury panel. He carried her out of the box, laid her on the counsel table, and administered her aid, all in view of the jury. And, in light of this case, which deals with treatment rendered to our client, we do not see how this jury can any longer be fair in arriving at a verdict, and we ask that a mistrial be declared on that basis."

The trial court denied the motion for mistrial

"for the reasons previously stated, coupled with the fact that I don't feel that the way he administered, or what he did for the lady in the presence of the jury, was not that extensive and was not that involved in the course of the whole episode to the extent that I feel it is so prejudicial to justify a mistrial at this point. So, that will be the ruling of the court."

Thereafter counsel for plaintiff furnished the trial court with two questions to be asked of each juror:

(1) "Did the treatment rendered to the juror by Doctor Fox prejudice you in any way?"

(2) "Do you still feel you can be fair and impartial?"

Upon the return of the jury to the courtroom, the trial court advised ...


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