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Jury Dismissal on Racial Grounds

Posted on Thursday, April 21st, 2016 at 10:01 am    

The following post is part of our Law Student Blog Writing Project, and is authored by James Haney, a Juris Doctor student at NKU Chase College of Law, Northern Kentucky University.

Jury Dismissal on Racial Grounds

The Constitutional Implications of Judge Olu Stevens’s Jury Dismissal

To say the least, race has come back to the forefront of the collective American mind. Racial division is rampant in the media, especially the news. Strife sells. In Louisville, Kentucky, race has placed itself at the core of a current case being heard by the Kentucky Court of Appeals. Judge Olu Stevens dismissed a jury panel, citing a lack of racial diversity as the reason for wiping clean the pool. The Commonwealth’s Attorney’s office then appealed the decision, which is now up for review. There is, no doubt, a constitutional issue to be raised.

In order to better understand the case, both the history of the case, the Constitution, and some Kentucky law needs to be examined.

The case in question involves one Charles Evans Jr. Evans was arrested and convicted of robbery and assault. When a jury is involved, the jury must first be selected. In this case, forty-one (41) members of the community were selected, at random, to be a part of the jury selection pool. Of those, three (3) were black.

This is where a major contention comes in from Judge Stevens. The fifth (5th) amendment to the United States Constitution provides that no civilian shall be denied due process. That is to say, anyone not in the military has a legal right to civilian court proceedings, before the state may deprive such a person of their life, liberty, or property. The sixth (6th) amendment, then, goes on to speak to criminal prosecutions. Accordingly, “the accused shall enjoy the right to a…public trial, by an impartial jury…” This is where the idea of a jury of one’s own peers comes form. The idea being that, because the United States is an amalgamation of cultures, peoples, beliefs, etc., then a jury should represent that same diversity. Judge Stevens’s dismissal of the jury pool is grounded in this part of the Bill of Rights. In his eyes, it seems, three (3) out of forty-one (41) is not an accurate cross-section of the people of Louisville.

The Constitution of Kentucky provides that no person has a right to a jury of any particular composition, merely that there may be no systematic exclusion, resulting in a reasonably representative jury. This is how the 6th Amendment of the United States Constitution has been interpreted, as well.

Since the dismissal, Judge Allison Jones, an Appeals judge in Kentucky, has ruled that Evans’s case will not be heard until the Court of Appeals has the opportunity to determine whether or not Stevens’s assertion was valid. This makes sense, as an appeal based on lack of racial diversity of the jury would be a virtual certainty, regardless.

Interestingly, though not necessarily relevant to the 6th amendment claim by Judge Stevens, a 1st amendment complaint has been raised by the Commonwealth Attorney’s Office. Judge Stevens placed a gag order on the prosecution and defense, forbidding either side from speaking about the proceedings. The order has been deemed improper by an undisclosed First Amendment attorney. This is, of course, only the person’s opinion, and not representative of any official stance being taken by the state, as of yet.

According to the prosecution, there is no evidence of any purposeful discrimination. It is worth noting that this is not the first time Judge Stevens and this Commonwealth’s Office have crossed paths. The Supreme Court of Kentucky has agreed to hear allegations that the judge was abusing his power, dismissing juries because he deemed them not inclusive enough. In November of 2015, Judge Stevens dismissed a jury for a theft case, citing that he found it “troublesome” that there were no black members of the 13-person jury. In this case, too, the defendant was black. Stevens is also facing six (6) charges of misconduct, stemming from the same ongoing feud between the judge and the commonwealth attorney. The hearings are scheduled for April 19.

Castaneda v. Partida, a Texas case that made its way to the US Supreme Court, deals with a similar situation, but farther down the line in the legal proceedings. On the petition of the state to be heard by the Supreme Court, it was noted that, although Mexican-Americans comprised roughly 79% of the population in which the jury pool was draw from, in an eleven (11) year period, only 39% of potential jurors had been Mexican-American. From this case, it can be seen where Judge Stevens might have a legitimate grievance. Were this case the only authority, it would likely boil down to previous jury selections as compared to the general population of the county. However, this is only a single case, and would likely be used only in the same capacity in which it is used here: as an example. A single example does not an argument make.

It is my belief that the appeal made by the Commonwealth Attorney’s Office will fail or succeed based on previous jury pools. If it can be shown, such as in Castaneda, that there is a history of disproportionality, then the dismissal will likely stand. However, if no such trend appears, then such cases will be seen as anomalies, rather than the norm. According to the US Census taken in July 2015, the population of Jefferson County is around 760,000. The most recent racial data comes from one year prior, in 2014, and places the white population at about 73%, and the black population at about 21%. Judging purely on those numbers, which is admittedly an oversimplification of a much more nuanced dispersion, then about one of every four jury members would be black. Clearly, in the case of this discussion, such is not the case. Again, it will almost certainly come down to what patterns are shown to occur. If such disparity happens often enough that the Court of Appeals deems it alarming, then not only will the dismissal stand, but there may well be an investigation opened. However, if no pattern of discrimination reveals itself, Judge Stevens may be asked to take a leave of absence.

Such a case is sure to have lasting effects on the criminal law system of Kentucky, and, quite possibly, on the rest of the country. Race based cases tend to find their way into the annals of nationally recognized law. This is very much an ongoing case. Something of this level of importance is destined to be heard in more than one appeal. Currently, there simply is not enough information available to the public at large in order to form an informed opinion as to the legitimacy of Judge Stevens’s claim, or to the claim of the Commonwealth Attorney’s Office of Jefferson County. Right now, it is anyone’s game, so to speak, with clarity coming through further revelation of facts.

The Tort of Negligent Credentialing

Posted on Thursday, April 7th, 2016 at 12:34 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by James Haney, a Juris Doctor student at NKU Chase College of Law, Northern Kentucky University.

The Tort of Negligent Credentialing:

A Look at a New Law in Kentucky, Regarding the Credentialing of Independent Physicians

Employees are, traditionally, under the umbrella of responsibility carried by their employers. Basically, if an employee behaves in a negligent way, while acting in regards to the job, then the employer is held equally responsible. Think of it this way: one would not want to hire a toddler to design a building. The ensuing catastrophe would be equally the fault of the person who decided that would be a good idea. Likewise, it would seem, a hospital would be held responsible for the actions of its staff, physicians included. This has not, nor it is now, always been the case, though.

The tort of negligent credentialing is currently recognized by at least twenty-eight (28) states. For the purposes of explanation, let us assume that the number is exactly twenty-eight (28). Commonly, physicians are seen as independent contractors, simply working in the hospital as a venue, rather than as an employee of the hospital. For a hospital, this meant that it could receive the benefit of having physicians on hand, without bearing any of the responsibility of the actions of the physicians. To put it more simply, a lawsuit against a physician would not also put the hospital at risk. Now, though, that protection is gone, thanks to the tort of negligent credentialing.

Negligence, in its base meaning, is when an entity acts in a way not in accordance with how it should act, and someone or something is damaged as a result. Credentialing generally refers to a person or group that signs off and attests to the abilities of another. Here, negligent credentialing would be a hospital allowing a physician to perform medical services, without ensuring the physician’s ability to do so. Again, to make it stark, think of a hospital allowing a toddler to perform a surgery. As an aside, no physicians or architects should take any of this as being called toddlers. Negligent credentialing is broken down into three (3) parts, each of which must be proved by a preponderance of the evidence (a greater than 50% certainty that the evidence says what either side contends that it does) before the plaintiff may succeed in the action. These parts are: 1) the defendant hospital owed the patient a duty to ensure a competent medical staff; 2) the hospital breached that duty by granting privileges to an incompetent or unqualified physician; and 3) the physician caused harm to the patient. Peter Schmit, 18 Causes of Action 2d 329 (2002).

A recent case in Kentucky has brought the tort back into the limelight. In 2011, the Kentucky Supreme Court discussed the tort, but then decided to leave adopting it in Kentucky “for another day…” in Trover v. Estate of Burton. The case that has brought the issue back up is Spalding v. Spring View Hospital. A number of other cases joined on the appeal, all claiming a breach of the tort of negligent credentialing. Jones, Adams, and the Spaldings all seek for the court to recognize the tort, allowing them the ability to seek redress. Originally, the various claims were dismissed, as Kentucky did not, at the time, recognize the tort. The appeal, now, asks the court, not to create law, but recognize law already in existence in numerous other jurisdictions.

In previous years, we have seen a major shift in hospital ownership from private firms, to large non-profit organizations. This has been the most significant argument for the rationale of recognizing negligent credentialing. Secondarily, courts have argued the expansion of recognition of torts (such as negligent hiring), negligent supervision, and corporate negligence. Kentucky, incidentally, recognizes all three. Ohio and Utah, though, have totally abolished the claim, thus granting hospitals full immunity to any such action. City of Hazard Mun. Housing Comm’n v Hinch is the basis of the law in Kentucky, stating that hospitals are not responsible for the actions of the physicians practicing within them, referring to the physicians as independent contractors. In fact, the court, in Spalding, even goes so far as to say that this is still the law. However, that said law does not bar a plaintiff from collecting based on a negligent credentialing claim.

The Spaldings, Jones, nor Adams brought a claim based on the idea that the hospital should be liable for the actions of physicians working within them. Instead, each desires that a hospital be held liable for hiring said physicians. Whereas respondeat superior (the notion that an employer is responsible for its employees), vicarious liability, and ostensible agency all rest in the idea that an employer is responsible for the actions of its employees, essentially. However, the various parties want the hospitals held directly liable for negligently credentialing their physicians involved in the cases. This idea, then, must be accepted in order for the parties to have their claims even considered. Otherwise, there is no claim.

The court notes that corporate negligence is the most appropriate context in which to view these cases. This is because hospitals are, almost exclusively, owned by corporations. Backing this decision, the court quotes Insinga v. LaBella (Fla. 1989), in which the Florida court said that hospitals “thus have an independent duty to select and retain competent independent physicians.”

Spring View and LCRH (Lake Cumberland Regional Hospital) both contended that recognition of such a claim would create a “chilling effect” on the participation of credentialing committee members, as they would be concerned about the prospect of personal liability. The two hospitals also argue that adding the liability would further add to the already high cost of healthcare within the state. The court denied both contentions, though, stating that the first was too speculative, and the second was irrelevant. The court said that imposing liability would only make the hospitals insure themselves against their own negligence of contracting with a physician that did not meet a certain standard.

That is the crux of the tort. A hospital would not be held liable for a physician who simply screws up one day. Rather, a hospital would only be held liable for hiring a physician that it either knew, or reasonably should have known, would act in a manner that would be considered less than satisfactory. Hospitals were, in fact, one of the only institutions immune from such a standard of responsibility.

Trover, the case introduced in 2011, in which the court decided to leave the question of negligent credentialing for another day, was decided in 2014. Now, in 2016, the Kentucky Court System has determined that “today is that day.” Negligent Credentialing is now a legally recognized cause of action within the state of Kentucky. Of course, this will almost certainly be appealed to the Kentucky Supreme Court by either LCHS or Spring View, if not both. This decision came down on March 11, 2016. As of today, April 4, 2016, no appeal has been filed.

Should the decision stand, Kentucky will officially join the ranks of the other states which have adopted the doctrine of Negligent Credentialing. This means that hospitals will be held responsible for who they contract with. It seems to stand to reason, as companies in other fields are held to the same standard. Physicians, who hold in their hands our very lives on a daily basis, should, then, be at least as scrutinized by a potential employer, thus mitigating the risk not only to us, but to themselves.

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