Jurors’ lawsuit against doctor only one of its kind

Three years ago, a jury of 12 citizens ruled in favor of Dr. Merle Rudy Busby.

Today, eight of those jurors are suing Busby, a Salisbury surgeon, in a civil case that appears to be different from any suit ever filed in North Carolina or the rest of the country, according to lawyers on both sides.

The N.C. Court of Appeals ruled in March that another jury should get a chance to decide if the surgeon wronged that first jury when he distributed an angry letter about its malpractice verdict.

Now, Busby’s attorney has asked the N.C. Supreme Court to intervene and throw the suit out.

The complicated case really began with the death of retired Salisbury banker Daniel Wright in 1995. Wright died after his appendix ruptured.

In a civil suit, Wright’s two sons accused four doctors, including Busby, of negligence. They argued that the doctors should have diagnosed the problem in time to save Wright’s life.

But lawyers for the doctors said Wright’s appendix had ruptured before he got to the hospital and he already was suffering from widespread blood poisoning. In such an advanced case, they said, the exact cause was too difficult to diagnose.

In May 1998, after a 212-week trial, the jury found only one of the doctors, Dr. Douglas Shellhorn, was negligent. The jurors awarded Wright’s sons $150,000 in damages.

But a day after the verdict, Busby wrote a letter that was delivered to the mailbox of every doctor with privileges at Rowan Regional Medical Center. The letter read:

Dear Colleagues:

Please be appraised of the following:

People who have sued doctors

Daniel W. Wright Jr., Charlotte, N.C.

Ashley D. Wright, Stanley, N.C.

Jurors who have found a doctor guilty

Adams, Billy (address)

Bowman, Charles (address)

Burgess, Linda (address)

Clement, Joy (address)

Eddleman, Bonnie (address)

Fisher, Meta (address)

Kesler, Terry (address)

Knox, Tommy (address)

Moore, Gene (address)

Pressley, Anita (address)

Sides, Mark (address)

Wade, Helen (address)

Others of whom I am leery

Mr. & Mrs. John Bennet Parker (address)

Elizabeth Parker Wright (address)

Betty Dan Spencer (address)

Judy Davis (address)

I am now back and offering a full line of general, vascular and thoracic surgery.

Rudy (signed)

Juror Terry Kesler learned of Busby’s letter and sent a copy to trial Judge Charles C. Lamm Jr., Rowan County Superior Court Judge Larry G. Ford and Rowan County District Attorney Bill Kenerly. Kesler wrote, in part: “Does the State of North Carolina reward its civically minded citizens by allowing and condoning retaliation against jurors for serving in this capacity?”

Lawyers for the Wrights called the letter “an affront to the legal system” and asked the judge to hold Busby in contempt.

But when the attorneys suggested that the surgeon could have violated felony criminal statutes about intimidating or threatening a witness or juror, the judge referred the question to District Attorney Bill Kenerly. Kenerly sent the case to the N.C. Attorney General’s office because Busby had operated on Kenerly twice and one of Kenerly’s assistant prosecutors, Bonnie Busby, is Rudy Busby’s sister-in-law.

The Attorney General’s Office declined to take action, citing two particular reasons. Because Busby didn’t send the letter to the jurors, a state official said, he apparently didn’t intend to communicate any threat or intimidation.

Also, all the names and addresses in the letter are part of the public record in the court case, and Busby did not “state expressly that medical treatment should be denied to these individuals,” the Attorney General’s office wrote.

That left jurors fuming, and eight of them went to the prominent Greensboro law firm of Black and Donaldson. On May 13, 1999, the eight former jurors — Burgess, Clement, Eddleman, Fisher, Kesler, Knox, Moore and Sides — sued Busby, asking for punitive damages.

The jurors’ lawyers made a number of legal arguments, including invasion of privacy and unfair and deceptive trade practices.

But in August 1999, Superior Court Judge Peter McHugh dismissed the entire suit. McHugh ruled out some of the complaint on technical grounds, and in general, he accepted the argument by Donald Barringer, Busby’s attorney, that the surgeon was simply exercising his right to free speech.

Last week, Barringer said people might not like Busby’s opinion, but that doesn’t necessarily give them the right to sue.

In March, however, the N.C. Court of Appeals, including Clarence Horton of Kannapolis, disagreed — and reinstated the jurors’ suit on two grounds.

In a unanimous opinion, the judges said that if the former jurors can prove their allegations, then another jury has a right to consider two types of damage: intentional infliction of emotional distress and common law obstruction of justice.

In the first case, the jurors said Busby’s letter prompted a number of fears: Would they be refused medical treatment in the future? Would doctors drop them as patients? And with Busby’s letter in their files, would health insurance companies refuse them membership?

Arthur Donaldson, one of the jurors’ attorneys, says doctors routinely file any type of letter they receive about a patient — medical or legal — “and it becomes a part of the person’s record forever and ever and ever.”

Noting that the jurors still must prove their case, the appeals court said also their allegations constitute a case for “common law obstruction of justice in that their suit alleges”:

• Busby “alerted health care providers to the names of the jurors in retaliation for their verdict.”
• “This retaliation was designed to harass” the jurors.
• Busby’s “conduct was meant to obstruct the administration of justice in Rowan County.”

The appeals judges also wrote, “The complaint also alleges all the necessary elements of obstructing justice through harassment of and communication with jurors.”

Donaldson, the jurors’ attorney, disputes the argument that Busby is protected by his First Amendment right to free speech. For one thing, Busby didn’t send the letter to the jurors or to the local newspaper “to make this a proper, public discourse,” Donaldson said.

“Freedom of speech is fine, but that’s not what he did ... Clearly, he was trying to implement some type of interference.”

The appeals court appears to agree. In their opinion, the judges wrote: Busby’s “alleged attempt to interfere with (the jurors’) health care because the jury found a doctor had committed malpractice is not protected speech.”

Donaldson also argues that to protect the integrity of the American legal system, jurors must be given special protections. But Barringer, Busby’s attorney, argues that jurors are protected “during the course of their work.” He said he doesn’t believe the Constitution protects them from disagreeable opinions about their verdicts after their work is done.

Next stop is the N.C. Supreme Court. Barringer said he has asked the high court to review the N.C. Court of Appeals decision. The Supreme Court can accept the case and schedule a hearing for more arguments.

Or if it refuses to review the case, the jurors’ suit returns to Rowan County for trial.

Donaldson and Barringer say they have found no other case quite like this one, and both the attorneys have asked their clients not to comment on the case.

In a second letter to his fellow doctors, Busby apologized for and retracted the first letter. He also asked doctors to throw the first letter away.

“I did not intend to imply or suggest to any of you that the persons named, or anyone else, should be denied treatment or that they should receive anything other than the best possible medical care that you can give,” he wrote.

Joy Clement, one of the jurors who sued Busby, said last week that she and her fellow jurors “feel very strongly about the case” and she looks forward to the day when she can have her say.