Hardy v. Tanner Medical Center, Inc.

499 S.E.2d 121, 231 Ga. App. 254, 98 Fulton County D. Rep. 1371, 1998 Ga. App. LEXIS 432
CourtCourt of Appeals of Georgia
DecidedMarch 17, 1998
DocketA97A2035
StatusPublished
Cited by12 cases

This text of 499 S.E.2d 121 (Hardy v. Tanner Medical Center, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hardy v. Tanner Medical Center, Inc., 499 S.E.2d 121, 231 Ga. App. 254, 98 Fulton County D. Rep. 1371, 1998 Ga. App. LEXIS 432 (Ga. Ct. App. 1998).

Opinions

Pope, Presiding Judge.

On the morning of September 4, 1987, 13-month-old Kristy Hardy awoke congested and feverish. Kristy’s parents, who are the plaintiffs in this case, took her to Parkway Regional Hospital, where Kristy’s temperature was recorded at 102 degrees. Plaintiffs were instructed to take Kristy home to rest, but instead, they went to her grandmother’s house and ran errands with Kristy. When plaintiffs and Kristy finally arrived home at approximately 6:30 p.m., Kristy quit breathing. After her mother resuscitated Kristy, an ambulance took her to defendant Tanner Medical Center, Inc.

At Tanner, Kristy originally was seen by an emergency room physician. Thereafter, she was examined by defendant Dr. Eric Baret. Baret admitted Kristy for the night. When Kristy began having trouble breathing again, she was transferred to the intensive care unit, where she died early the next morning.

Pursuant to Kristy’s death, plaintiffs filed a medical malpractice action against Tanner and Baret. During a jury trial, Tanner twice moved for a directed verdict as to its liability. The trial court reserved ruling on Tanner’s motions. Thereafter, the jury returned a defense verdict.1 Subsequently, the trial court entered judgment on the jury’s [255]*255verdict in favor of Tanner and Baret. It also granted Tanner’s motions for a directed verdict. Following the denial of their motion for a new trial, plaintiffs appeal. We affirm.

1. During trial, plaintiffs’ expert witness, Dr. Weber, was allowed to show the jury a photocopied textbook picture of an x-ray of a person with an endotracheal tube placed in the person’s airway in order to permit Weber to demonstrate to the jury how an x-ray of a properly placed tube should look. Plaintiffs contend that the trial court .committed reversible error in failing to further allow plaintiffs to place the photocopy in evidence for the jury’s review because it was relevant to their contention that Baret had improperly placed an endotracheal tube in Kristy’s airway. We cannot agree. The trial transcript reflects that the photocopy was merely illustrative, and there is no evidence that it depicted the only proper placement of an endotracheal tube. Additionally, the photocopy was cumulative of Dr. Weber’s expert testimony in the case. Under such circumstances, there was no abuse of discretion in the trial court’s refusal to allow the photocopy to be placed into evidence. Wood v. Browning-Ferris Indus., 206 Ga. App. 707, 708 (3) (426 SE2d 186) (1992).

2. The record in this case demonstrates that the trial court did not qualify prospective jurors with regard to whether they had any employee relationship with Tanner. Plaintiffs contend that because they had requested such qualification prior to jury voir dire in their proposed pre-trial order and orally, they are entitled to a new trial. There is no support for this contention. A review of plaintiffs’ proposed pre-trial order, which never actually was entered, demonstrates no request on plaintiffs’ part to have prospective jurors qualified regarding any employee relationship with Tanner. The transcript in this case likewise contains no such request. And plaintiffs’ attempt to supplement the record with affidavits from their attorneys stating that an oral request, for the above qualification was made prior to jury voir dire does not comply with the dictates of OCGA § 5-6-41 (f), and thus creates no record evidence for purposes of this appeal.

In the absence of record evidence of a request to have prospective jurors qualified as to any employment relationship they might have with Tanner, we conclude that the trial court did not err in failing to blanketly qualify prospective jurors on that matter. See Seaboard Coast Line R. Co. v. Smith, 131 Ga. App. 288, 291 (1) (b) (205 SE2d 888) (1974). Instead, we further conclude that it was left to the parties to inquire into the matter, and upon finding that a prospective [256]*256juror had such a relationship, move the court to remove the potential juror for cause, if that was desired. See Daniel v. Bi-Lo, Inc., 178 Ga. App. 849, 850-852 (1) (344 SE2d 707) (1986).

3. Plaintiffs’ contention that they are entitled to a new trial based on the make-up of the jury venire, which they claim was heavily weighted with former and current employees of Tanner, is merit-less. The record fails to demonstrate that plaintiffs ever objected below to the jury list or the venire, nor did they challenge the array. Under such circumstances, plaintiffs have waived the right to do so now. Scott v. State, 243 Ga. 233, 234 (2) (253 SE2d 698) (1979).

4. We reject plaintiffs’ contention that the trial court committed reversible error in failing to grant their request to strike juror Vicky Scudder for cause. During voir dire, Scudder testified that she had worked for Tanner approximately 19 years earlier, not that she was a present employee of Tanner. Therefore, the trial court was not required by our holding in Daniel to strike her for cause. See 178 Ga. App. at 850-852 (1). While it is true that Scudder initially stated that she might not be able to be totally impartial in deciding the case, upon further inquiry, she indicated that she could listen to the evidence in the case and that she would be very fair in doing so. She also indicated that she had no leanings in favor of one party or the other and that she would do her best to make a decision based on the evidence presented at trial. Additionally, she stated that she did not believe she would be persuaded one way or the other by the fact she had once worked for Tanner so many years ago.

“A juror is not disqualified if he [or she] can lay aside whatever opinions or impressions he [or she] may have had and decide the case based upon the evidence presented in court.” Spivey v. State, 253 Ga. 187, 196 (6) (d) (319 SE2d 420) (1984). Furthermore, the trial court is in the best position to determine a prospective juror’s credibility regarding such matters, and its decision regarding whether to retain or dismiss a juror is given great deference. Cohen v. Baxter, 267 Ga. 422, 423 (1) (479 SE2d 746) (1997). We will reverse a trial court’s decision in matters of this type only upon a showing of manifest abuse of discretion. Hill v. Hosp. Auth. of Clarke County, 137 Ga. App. 633, 636 (1) (b) (224 SE2d 739) (1976). Based on all of Scudder’s responses to voir dire in this case, we find no manifest abuse of discretion in the trial court’s refusal to strike her for cause.

5. We also find no manifest abuse of discretion in the trial court’s refusal to strike juror Glenda Williamson for cause. Contrary to plaintiffs’ contention, there is no more than mere speculation that Williamson was an employee of Tanner. And while she stated that she knew a pathologist that might testify, and upon initial inquiry, indicated that she might have a tendency to believe what he said, she later agreed that she could listen to all the witnesses and render a [257]*257truthful verdict in the case. Under such circumstances, her dismissal for cause was not required. See Foster v. State, 248 Ga. 409, 410-411 (3) (283 SE2d 873) (1981); Taylor v. State, 243 Ga. 222, 224 (2) (253 SE2d 191) (1979); Seaboard Coast Line R. Co., 131 Ga. App. at 291 (1) (b).

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Hardy v. Tanner Medical Center, Inc.
499 S.E.2d 121 (Court of Appeals of Georgia, 1998)

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Bluebook (online)
499 S.E.2d 121, 231 Ga. App. 254, 98 Fulton County D. Rep. 1371, 1998 Ga. App. LEXIS 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardy-v-tanner-medical-center-inc-gactapp-1998.