On November 26, 2002, Shawn Murphy was born via C-section at Wheeling Hospital, and was immediately found to be in distress, suffering from a low respiratory rate and a faint heartbeat. He was diagnosed with acidosis, a condition in which the patient suffers from the effects of insufficient oxygenation.
Dr. Dennis Burech was on call at Wheeling Hospital and arrived at the hospital to lead resuscitation efforts. Dr. Burech then contacted the Neonatal Intensive Care Unit at West Virginia University Hospital to arrange for Shawn’s transfer to that unit, and he spoke with neonatal nurse practitioner, Melissa Asher during the telephone conversation.
There is a factual dispute regarding the contents of their conversation, with Nurse Asher contending that she told Dr. Burech to order bicarbonate, volume, and generous oxygen to be administered to Shawn. Although an order for volume had apparently existed prior to the telephone call, the volume order was later rescinded by Dr. Burech. It is undisputed that no volume or bicarbonate was provided to Shawn until Nurse Asher arrived about two hours later to facilitate the transfer.
Nurse Asher realized that Shawn had not received bicarbonate and volume, and she therefore ordered both. Shawn responded positively and was stable enough to be transferred to the Neonatal Intensive Care Unit at West Virginia University Hospital.
We filed a medical malpractice action, and the case proceeded to trial, and when the prospective jurors were asked questions, one of the first prospective jurors was a dentist, Dr. Walter.
Dr. Walter revealed that he had been a defendant in what he identified as a “frivolous lawsuit settled out of court….” and that “frivolous lawsuits cost everyone except the attorneys involved.”
Dr. Walter also stated that with regard to his own personal experience as a defendant in a medical malpractice action, “obviously, I’m going to be a little bit prejudiced,” and that he would award damages in cases “f it was a deliberate act, if it was something like that, I guess, deliberate—-if it was an accident, if it wasn’t. I don’t know, it would be a tough call, to be honest.”
We moved to strike Dr. Walter from the jury pool, but it was denied.
The case was tried, and then appealed to the West Virginia Supreme Court, which held that Dr. Walter showed extensive elements of prejudice and bias, and that the trial court improperly tried several times to rehabilitate Dr. Walter.
The West Virginia Supreme Court ruled that the temptation for a trial court or counsel to attempt to seek to “rehabilitate” a juror who has provided a questionable response has also been acknowledged as improper. The trial court must remove a prospective juror who makes a clear statement indicating a prejudice or bias.
The case was set for trial, but settled before the second trial began.