May a judge hear malpractice cases against a spouse's or child's current doctor?

Plain-English summary

Two circuit judges faced malpractice suits involving their spouses' obstetrician-gynecologist and their minor children's pediatricians. The doctor-patient relationships were ongoing, and the judges asked about recusal, waiver, and reassignment.

The Commission found a reasonable question about impartiality in both sets of cases and held the judges disqualified under the general Canon 3C(1) provision. That ground could not be remitted. Citing Ex parte Jim Walter Homes, it also said a disqualified judge could not assign the case to another judge and described the required reassignment route.

In practice

The opinion's holdings concerned current treatment relationships. It said a past isolated treatment might require a different, fact-specific analysis.

Common questions

Q: Were the judges disqualified when current family doctors were defendants?

A: Yes. The Commission found recusal required for the spouse's doctor and the children's pediatricians in the stated malpractice cases.

Q: Could the parties remit this disqualification?

A: No. The Commission said a disqualification under the general Canon 3C(1) provision was not remittable.

Q: Could the disqualified judges assign the cases themselves?

A: No. The opinion applied Ex parte Jim Walter Homes' procedure instead of reassignment by a disqualified judge.

Background and rules framework

The Commission applied Alabama Canon 3C(1)'s objective impartiality standard while assuming no actual bias under Canon 3C(1)(a). It treated remittal and reassignment as separate consequences of the general recusal ground.

Citations and references

Alabama Advisory Opinions 92-454, 94-531, 99-740 and 00-759; Ex parte Jim Walter Homes, Inc., 776 So. 2d 76 (Ala. 2000); In re Sheffield, 465 So. 2d 350 (Ala. 1984).

See also

• AL Judicial Ethics Op. 02-797: YMCA Membership

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 02-794

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: APRIL 26, 2002 ADVISORY OPINION 02-794
DISQUALIFICATION WHEN THE
JUDGE’S SPOUSE’S DOCTOR OR THE
JUDGE’S MINOR CHILD’S DOCTOR IS A
PARTY
ISSUES
I. Is a judge disqualified to hear cases in
which the defendant is his wife’s
gynecologist? Answer: Yes.
II. Is a judge disqualified to hear a case in
which the judge’s minor children are patients
of two of the three pediatrician/defendants?
Answer: Yes.
III. If the judge is disqualified under either of
the foregoing circumstances, is the
disqualification subject to remittal? Answer:
No.
IV. If disqualified, may the judge assign the
cases to another circuit judge? Answer: No,
the procedure for reassignment is set forth in
Ex parte Jim Walter Homes, Inc.
FACTS
The presiding judge in a judicial circuit
inquires concerning disqualification issues in
three pending medical malpractice cases.
There are two active judges in the circuit.
Another judge who did not seek a further term
during the last judicial elections continues to
hear some cases by special authorization and
assignment. The three medical malpractice
cases are assigned to the active judges.
I n t w o o f t h e c a s e s , a n
obstetrician/gynecologist is the only
defendant. This doctor is the gynecologist for
the spouse of one of the two active judges and
is the obstetrician/gynecologist for the spouse
of the other active judge. Both of the judges’
spouses have family practice doctors in
addition to this specialist.
In the third case, a general surgeon from one
group and two pediatricians from another
group are defendants. Minor children of both
of the active judges are patients of the
pediatricians. Neither the judges nor their
spouses nor their children are patients of the
general surgeon.
DISCUSSION
The Commission has previously addressed
disqualificationwhenthejudge’sdoctororthe
judge’s spouse’s doctor is a party. In
Advisory Opinion 99-740, the Commission
wrote that, absent disqualifying bias under
Canon 3C(1)(a), this situation is governed by
the general provision in Canon 3C(1)
requiring disqualification whenever the
judge’s impartiality might reasonably be
questioned. The Commission assumes that
the judges in the current case have no personal
bias or prejudice concerning a party arising
from the doctor/patient relationships in
question.
Recusal is required under Canon 3C(l)
when ‘facts are shown which make it
reasonable for members of the public
or a party, or counsel opposed to
question theimpartialityofthejudge.’
Acromag-Viking v. Blalock, 420,
So.2d 60, 61 (Ala. 1982). See, also,
Wallace [v. Wallace, 352 So.2d 1376,
1379 (Ala.Civ.App. 1977)].
Specifically, the Canon 3C(l) test is:
ADVISORY OPINION 02-794
PAGE 2
‘Would a person of ordinary
prudencein the judge’s position
knowing all of the facts known to the
judge find that there is a reasonable
basis for questioning the judge’s
impartiality?’ Thode, The Code of
Judicial Conduct - The First Five
Years in the Courts, 1977 Utah L.Rev.
395, 402.”
In re Sheffield, 465 So.2d 350, 355-356 (Ala.
1984). The reasonable person/appearance of
impropriety test stated in Canon 3C(1)
sometimes disqualifies judges who have no
actual bias. Id., at 357.
In AdvisoryOpinion 99-740, the Commission
decided that a person of ordinary prudence
knowing all the circumstances could conclude
there is a reasonable basis for questioning the
impartiality of a judge when a party to
individual litigation is currently the judge’s or
the judge’s spouse’s doctor. The Commission
distinguished this situation from one in which
a family doctor is a single defendant in
complex litigation involving hundreds of
parties, indicating that disqualification in that
situation depends on the circumstances in the
case.
ConsistentwithAdvisoryOpinion 99-740,the
Commission concludes that a judge is
disqualified to hear a medical malpractice
action when the sole defendant is the judge’s
s p o u s e ’ s g y n e c o l o g i s t ( o r
obstetrician/gynecologist). The Commission
also is of the opinion that a person of ordinary
prudenceknowingall the circumstancescould
conclude there is a reasonable basis for
questioning the impartiality of the judge in a
medical malpractice case involving two
pediatricians and a surgeon when the judge’s
minor children are patients of the
pediatricians.
It should be noted that the situations presented
involve ongoing doctor-patient relationships.
Other doctor/patient relationships might not
create a reasonable question as to the judge’s
impartiality, e.g., a defendant who, as an
emergency room doctor, set the judge’s
child’s broken arm, or a defendant who, as a
radiologist, performed and read an MRI on the
judge three years before. Whether the
relationship causes disqualification when it is
not ongoing depends on the circumstances in
the particular case.
Since disqualification in both of the situations
presented is under the general provision in
Canon 3C(1), it is not subject to remittal.
Advisory Opinions 92-454, 94-531, and 00-
759.
In Ex parte Jim Walter Homes,Inc., 776 So.2d
76 (Ala. 2000), the Alabama Supreme Court
decided that a judge who is disqualified to
hear a case may not reassign the case to
another judge, finding that to do so would be
contrary to Canon 3C because the impartiality
of the reassignment might reasonably be
questioned. Id., at 80. Thus, both active
circuit judges are disqualified and they may
not reassign the case to another judge.
In its opinion in Jim Walter Homes, the
Court adopted a procedure for initiating
reassignment of a case where the judge
presiding over it is disqualified under the
canons of judicial ethics. In a circuit with
more than one circuit judge, the disqualified
presiding judge is to notify the next most
senior judge in the circuit of the
disqualification. If the judge so notified is
ADVISORY OPINION 02-794
PAGE 3
also disqualified, he or she is to enter an order
notifying the next most senior judge in the
circuit of the disqualification. If the judge
notified is not disqualified, he or she becomes
the judge to whom the case is assigned, unless
that judge assigns the case to another judge in
the circuit who is not disqualified and agrees
to take the case. If no judge with authority to
hear the case is available in the county in
which the case is pending, the case must be
referredto theAdministrativeOfficeofCourts
for assignment of a judge. Id.
REFERENCES
Advisory Opinions 92-454, 94-531, 99-740,
and 00-759.
Alabama Canons of Judicial Ethics, Canons
3C(1) and 3C(1)(a).
Ex parte Jim Walter Homes, Inc., 776 So.2d
76 (Ala. 2000).
In re Sheffield, 465 So.2d 350 (Ala. 1984).
This opinion is advisory only and is based on
the specific facts and questions submitted by
the judge who requested the opinion pursuant
to Rule 17 of the Rules of Procedure of the
Judicial Inquiry Commission. For further
information, you may contact the Judicial
Inquiry Commission, P. O. Box 303400,
Montgomery, Alabama 36130-3400; tel.:
(334) 242-4089; fax: (334) 353-4043; E-mail:
[email protected].