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CLARA L. HUDSON v. DR. MICHAEL TALEFF

JUNE 07, 1989

CLARA L. HUDSON
v.
DR. MICHAEL TALEFF



BEFORE HAWKINS, P.J., PRATHER AND PITTMAN, JJ.

PRATHER, JUSTICE, FOR THE COURT:

The application of the right to a fair and impartial jury trial in a medical malpractice civil case is the subject of this appeal. Clara Hudson brought this action in the Circuit Court of Lauderdale County, Mississippi, alleging negligence arising out of eye surgery performed by Dr. Michael Taleff. The jury found in favor of Dr. Taleff. Feeling aggrieved, Mrs. Hudson brings this appeal and assigns as error the following:

(1) Appellant did not receive a fair and impartial trial because the jury was not selected according to law resulting in a jury being selected prejudiced in favor of appellee against appellant.

 (2) The court erred in granting instruction D-8 over objection of appellant.

 (3) The court erred in granting instruction D-7 over the objection of appellant.

 (4) The verdict of the jury and judgment of the court is

 contrary to the overwhelming weight of the law and evidence and not supported by any law or evidence and the court erred in not directing a verdict for appellant and in rulings on the objections.

 I.

 Dr. Michael Taleff has practiced medicine specializing in ophthalmology in Meridian, Mississippi since 1969. Dr. Taleff and his associates have treated Clara Hudson, age 84 at the time of trial, since 1974.

 On January 30, 1984, Dr. Taleff examined Mrs. Hudson and found that the cataract in her right eye was ready for surgery. He informed her that it was possible to implant intraocular lens inside her eye to correct her vision; Mrs. Hudson allegedly consented to the procedure and to the implantation of a lens. Dr. Taleff performed cataract surgery and implantation of an anterior chamber lens implant on Mrs. Hudson's right eye on February 1, 1984. Mrs. Hudson experienced iritis/inflammation after surgery. She also contends she suffered severe pain. Dr. Taleff last saw Mrs. Hudson on September 4, 1984. At that time, her vision had improved to 20/50 as compared to 20/400 she experienced prior to surgery.

 Mrs. Hudson never returned to Dr. Taleff and elected to go under the care of Dr. Lynn McMahan, an ophthalmologist practicing in Hattiesburg. Dr. McMahan saw Mrs. Hudson on September 24, 1984, and found a malposition of the anterior chamber lens. Dr. McMahan removed the lens placed in Mrs. Hudson's right eye by Dr. Taleff and implanted another lens of the same type. Nevertheless, Mrs. Hudson continued to suffer from iritis and inflammation following Dr. McMahan's surgery. Finally, the second lens was completely removed by Dr. Wayne Beyer, Dr. McMahan's partner. Mrs. Hudson lost the vision in her right eye.

 Mrs. Hudson filed a complaint for medical negligence against Dr. Taleff on January 22, 1986, alleging that he had negligently performed the cataract surgery and lens implantation and that he did not provide adequate follow-up medical care. Dr. Taleff answered that he had not deviated from the accepted standards of medical care for ophthalmology in performing the cataract surgery, in the implantation of the lens, or in providing follow-up care. Mrs. Hudson produced an expert witness, Dr. Kenneth Fox, who testified that the acts of Dr. Taleff were below the minimum standard of care. Dr. Taleff produced an expert witness, Dr. Sam Johnson, who contradicted Dr. Fox and asserted that Dr. Taleff's actions were entirely appropriate. Such were the factual issues submitted to the jury. The trial resulted in a verdict in favor with Dr. Taleff.

 II.

 DID MRS. HUDSON RECEIVE A FAIR AND IMPARTIAL JURY PANEL?

 During voir dire, counsel for Mrs. Hudson moved the court to quash the jury panel for alleged violations of the applicable jury statutes and for fraud. Mrs. Hudson contends that: (A) the jury was not properly summoned by the Lauderdale County Sheriff in that the circuit clerk mailed summonses to prospective jurors rather than attempting personal service through the sheriff or some other officer; and (B) the method of selecting the jury was prejudicial and that Mrs. Hudson was forced to try her case before jurors who had been patients of Dr. Taleff, or patients of his two partners, Drs. Dan and Lowery Moore.

 A.

 The selection of a jury is controlled by Miss. Code Ann. 13-5-1, et seq. The following sections have application to the issues presently before the court.

 Miss. Code Ann. 13-5-8 provides that:

 (1) In April of each year, the jury commission for each county shall compile and maintain a master list consisting of the voter registration list for the county.

 (2) The circuit clerk of the county and the registrar of voters shall have the duty to certify to the commission during the month of January of each year under the seal of his office the voter registration list for the county.

 Miss. Code Ann. 13-5-10 provides in part:

 The jury commission for each county shall maintain a jury wheel into which the commission shall place the names or identifying numbers of prospective jurors taken from the master list . . . . In April of each year, . . . the wheel ...


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