Patient Judge Not Recused

The Tennessee Court of Appeals  agreed with a trial judge that a comment made in a medical malpractice matter did not demonstrate bias requiring her recusal.

The comment

I can tell [a deponent]  how awfully I was treated in the emergency room recently, but that’s a whole other subject.

The court here

Appellants argue that the trial judge‘s negative characterization of the treatment she received at Methodist University creates an appearance of bias towards Methodist Healthcare and its employees. The judge made the comment at issue on the record during a discussion pertaining to the deposition of Methodist Healthcare CEO Gary Shorb in an unrelated case. In arguing against the deposition, one of the attorneys indicated that Mr. Shorb was not in his office being deposed each day, to which the trial judge responded as follows: “Well, I‘m sorry he‘s not. I can tell him how awfully I was treated in the emergency room recently, but that‘s a whole other subject.” As she subsequently explained in a discussion off the record, the judge‘s statement was made in reference to her experience in the emergency department at Methodist University. If required to consider the trial judge‘s statement standing alone, a reasonable person might infer bias against Methodist Healthcare and its employees; however, “[a]ny comments made by the trial court must be construed in the context of all the facts and circumstances to determine whether a reasonable person would construe those remarks as indicating partiality on the merits of the case.” Alley, 882 S.W.2d at 822 (citations omitted). Construed in its appropriate context, the judge‘s comment is not sufficient to require recusal…

…we cannot conclude that a reasonable person, knowing all of the facts known to the judge, would have any reasonable basis for questioning the judge‘s ability to act impartially as thirteenth juror in either of the cases before us. It appears the trial judge‘s comment was little more than a lighthearted reference to the unpleasantness that often accompanies emergency room visits. Though perhaps ill-advised, if only because of the time and expense it has taken to resolve the motions for recusal, the comment does not indicate partiality on the merits of the case when construed in the context of all the facts and circumstances.

(Mike Frisch)