You do everything right, but….

FLORIDA LAW WEEKLY

VOLUME 48, NUMBER 40

CASES FROM THE WEEK OF October 6, 2023

EVEN THOUGH THE TRIAL COURT CLEARLY ERRED IN FAILING TO EXCUSE A JUROR FOR CAUSE, THE PARTY FAILED TO PRESERVE THE ISSUE FOR REVIEW BECAUSE HE DID NOT RAISE AN OBJECTION BEFORE THE JURY WAS SWORN

Greathouse v. State, 48 Fla. L. Weekly D1913 (Fla. 2^nd DCA Sep. 27, 2023):

A juror in a sexual assault trial admitted that she would probably not be the right juror, due to her concerns about her ability to remain fair and impartial.  The defendant subsequently moved to strike the prospective juror for cause, but the trial court had no recollection of what the woman had said. When the state tried to refresh the court’s recollection even agreeing with defense counsel that the prospective juror had expressed doubt about her ability to be fair and impartial, the trial court still denied the cause challenge. 

The denial forced the defendant to use his sole remaining peremptory challenge to keep the prospective juror off the jury. He then had no strikes left to strike another juror, who he had also previously unsuccessfully moved to strike for cause. 

The defendant properly moved for an additional peremptory challenge, but because there was only one person left after that on the venire, the trial court asked if the defense lawyer if her goal was NOT to get a jury.

Defense counsel reiterated her request for an additional peremptory, which the court declined, making the potential juror whom the defendant wanted to strike, the last person to sit on the jury. 

When seating the alternate arose, there was a language issue, and the court asked if the plan was to go with six jurors or whether there was somebody the state had already kicked out that they could all live with, because it was either that, or try the case with only six jurors. 

Defense counsel then agreed to a previously stricken juror to be the alternate.  Before swearing in the jury, the trial court confirmed with the parties the final composition of the jury, six plus one alternate, and read off each juror’s name.  The defendant made no further objection at that time, nor when the court called the venire back into the courtroom. The court then announced the jury and swore the jurors in. 

Despite the appellate court’s plainly expressed belief that the trial Judge had abused his discretion in failing to excuse the first juror for cause, the court found that the defendant failed to preserve the issue.  Preservation requires a renewed objection before the jury is sworn. 

The rule is not a mere technicality, or designed to place onerous burdens on overstressed trial counsel.

Instead, it gives the court one last chance to correct a potential error and avoid a possible reversal on appeal, and also allows counsel to reconsider the prior objection once a jury panel has been selected.

Painfully, while the court explicitly agreed that the trial court had erred in denying the cause challenge in not affording him an additional peremptory challenge to strike the second objectionable juror, the failure to preserve the error prevented the court from reversing on appeal.

AMENDMENT 7 DOES NOT APPLY TO INTERROGATORIES – – PHYSICIAN IN NEGLIGENT CREDENTIALING CASE HAD TO ANSWER QUESTIONS WHEN ASKED ABOUT WHEN HE WAS GRANTED PRIVILEGES, AND HAD TO IDENTIFY ALL THE PEOPLE HE INTERVIEWED IN THE PROCESS OF OBTAINING PRIVILEGES – – MUST ALSO ANWER WHETHER HIS REQUEST FOR PRIVILEGES FROM A HOSPITAL WAS EVER REJECTED

Regala v. McDonald, 48 Fla. L. Weekly D1935 (Fla. 6^th DCA Sep. 29, 2023):

The plaintiff, who broke a bone in his foot while on a ladder and ended up losing his leg due to the alleged malpractice of his physician, sued the physician as well as the hospital’s surgery center, for negligence and negligent credentialing.

The plaintiff propounded several interrogatories to the physician and to the surgical facility defendant where the physician held staff privileges.  The interrogatories first asked the facility to identify each person who had responsibility for determining whether the facility would issue privileges to the doctor to treat patients.

The other three questions asked the physician to identify the date that he was granted privileges at the facility, and to identify each person who interviewed him during that process. 

Another interrogatory asked if he had ever been the subject of a risk management, peer review or quality assurance investigation arising out of an adverse medical incident, and if so pursuant to Amendment 7, asked him to identify all documents created as a result.

Finally, the last interrogatory asked whether he had ever sought privileges or had asked to be reinstated at any hospital or other facility.

As an initial matter, the court found that Amendment 7 by its plain language does not apply to interrogatories, and instead only applies to the right to access records of adverse medical incidents.

After reaching that conclusion, the court then evaluated each of the four interrogatories to determine whether the information sought was immune from discovery by section 395.0191 (8) or 395.0193(8).

The court concluded that requiring the facility to list the names of persons who interviewed the physician in the process of determining whether he should be given staff privileges as part of the credentialing process, was a departure from the essential requirements of law.

However, the court also concluded that the physician himself could testify as to matters he independently had knowledge of, specifically the date he was granted privileges and each person who interviewed him during the process of obtaining those privileges.  To the extent the physician had independent knowledge of those facts, he could respond to that interrogatory.

Any question about whether the physician had ever been the subject of a risk management or peer review proceeding arising out of adverse medical incident though, did violate the statute. 

Still, the part asking for identification of documents arising out of adverse medical incidents fell within Amendment 7, leading the court to rule that the defendant had to produce those documents.

Finally, the court found that the doctor could not testify as to any knowledge he gained solely from the credentialing process; only as to matters that he had knowledge of independent of the credentialing process.