5D02-3047 Murphy v. Hurst

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D02-3047

Case Date: 08/02/2004

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2004

APRIL MURPHY, Appellant, v. CASE NO. 5D02-3047

MARTHA C. HURST, M.D., ET AL, Appellee. / Opinion filed August 6, 2004. Appeal from the Circuit Court for Orange County, R. James Stroker, Judge. James C. Blecke of Deutsch & Blumberg, P.A., Miami,and Brasfield, Fuller, Freeman, Lovell & O'Hern, Pa., St. Petersburg, for Appellant. Richard S. Womble, David R. Kuhn of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellees, Martha C. Hurst, M.D., and Orlando Health Care Group. Thomas E. Dukes, III, G. Franklin Bishop, III, and Michelle M. Perez-Sotolongo of McEwan, Martinez & Dukes, P.A., Orlando, for Appellees, Richard S. Tejedor, M.D. & Central Florida Pulmonary Group, P.A. THOMPSON, J. April Murphy appeals a judgment for the defendants in a medical malpractice case. Murphy contends that she is entitled to a new trial because the court denied her mid-trial motion to strike

a juror, who, it was learned mid-trial, may have been treated five or ten years earlier for what may have been asthma by a doctor associated with one of the defendant medical groups. We affirm. Murphy sued two medical groups and two doctors, alleging that she had been misdiagnosed as having asthma and that she was injured by inappropriate doses of steroids over an extended period. Although only two doctors were named as defendants, several doctors fromthe two medicalgroups treated Murphy and were introduced during voir dire. The court asked the venire if they were acquainted with any of the doctors, and Juror Moore apparently did not raise her hand. Later, counsel asked the venire if any of them had ever had asthma. Juror Moore apparently did not raise her hand. After discussions with venire persons who responded affirmatively to the question, counsel asked: "Has anyone else had any problems associated with asthma," and Juror Moore apparently did not respond. Apparently, Doctor Decker, who was associated with Central Florida Pulmonary Group, thought he recognized Juror Moore, and the group verified through its records that Moore had been its patient. Later, as the proceedings were about to begin, defense counsel suggested to the court that Juror Moore should be questioned. The following transpired after Juror Moore was brought to the courtroom: THE COURT: Good morning, Ms. Moore, you may be seated. Ms. Moore, it has come to my attention that at some time several years ago, four or five years ago, you may have been treated yourself by someone at the Central Florida Pulmonary Group. Is that true? JUROR MOORE: Uh-huh. THE COURT: Did you forget about that during the voir dire? JUROR MOORE: Yeah, since I haven't had any more. THE COURT: Do you remember what doctor treated you?

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JUROR MOORE: I think Arado (ph).1 THE COURT: And as a result of that treatment did you get better? JUROR MOORE: Uh-huh. THE COURT: And the reason that didn't come out during the examination when people asked whether or not any of you had suffered from asthma? JUROR MOORE: Well, I just totally forgot about it since I haven't had it any more. But he did tell me that it would come and go. He said it might go away and it might come back and that's why he had gave me the inhaler, he said always have one with you. But I have one at work in the locker and one in my purse but I never had to use it since. THE COURT: Okay. Counsel, approach the bench, please. (A bench conference was had on the record.) MR. DUKES [Defense counsel]: I would like to ask her a couple of follow-up questions if that's okay. THE COURT: Like what? MR. DUKES [Defense counsel]: I think she saw Dr. Decker, does she remember seeing him and like what was her asthma like. THE COURT: Did you see any other doctors at the Central Florida Pulmonary Group? JUROR MOORE: No. MR. LOVELL [Plaintiff's counsel]: She might not know it was Dr. Decker. MR. DUKES [Defense counsel]: Did she ever have a sleep study done?

Central Florida Pulmonary states in its brief that Moore may have meant, or said, Dr. Aldarondo, who, unlike Dr. Decker, was not introduced to the jury. -3-

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THE COURT: Did you ever have a sleep study done? JUROR MOORE: No. MR. DUKES [Defense counsel]: I would like her to describe her asthma, what made her go see the doctors in the first place. THE COURT: And do you remember what your asthma symptoms were that caused you to go to the doctor in the first place? JUROR MOORE: I had bronchitis. THE COURT: Bronchitis. JUROR MOORE: That's what he said it was, a bronchitis. I told him I never had asthma before, he said it's just something that happens. THE COURT: All right. MR. DUKES: Does she remember

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