Case Note: Ronald Eggemeyer vs. Dr. Ted H. Jefferson, COA, Published 6/12/2015

Mistrial granted when insurance defense lawyer repeately disobeys trial judge's order on defenses AND second mistrial in med mal case following defense misconduct

COAPanel.Lambert.Jones.Acree

Court of Appeals Judges Lambert, Jones and Acree

Ronald Eggemeyer vs. Dr. Ted H. Jefferson, COA, Published 6/12/2015

[Editor’s note: This decision reflects a major miscarriage of justice which will result in a third trial on a medical negligence issue.  It is a worthy read and should be an eye-0pener to insurance companies and judges alike on the abusive techniques that a defense lawyer feels free to take.  Judge James Lambert wrote a well-reasoned and clearly delineated opinion, joined by Judge Jones, with a dissent by Judge Acree invoking the name of Henry Clay reading a the new trial standard as unchanged over the years as the starting point that an abuse of discretion is relative and did not occur in the case sub judice.  Of course,  I am reminded of more sound legal thought than Henry Clay simply opening a book; wisdom that can be found in the jurisprudential thought of Oliver Wendell Holmes, to wit:

“It is something to show that the consistence of a system requires a particular resuly, but it is not all.  The life of the law has not been logic; it has been experience.  The felt necessities of the of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” O.W. Holmes, Jr., The Common Law, 1881, page 1.

Keep in mind further that the events that transpired in this case have broader applicability because at the heart of the order was that the defense could not profit from the taking of proof by a mistrial it had caused and thus use this additional time to build up their defense.  Nothing in this opinion questioned the legitimate ends of the trial judge’s order forbidding the defense to from using new evidence, theories, defenses, etc.

Now compare this to you having a trial date, and you are meeting all the pretrial deadlines, to include expert disclosures, then one side or the other asks for a continuance with a new trial date. Should the person seeking the continuance be allowed a new set of pre-trial deadlines or should those deadlines be frozen in time and/or requiring the party or parties to meet those deadlines as stated based upon the original trial date and the only change being the pretrial and trial dates?  Or your trial date gets bumped by the court’s crowded docket?  Just a thought.]

The appeal was before Chief Judge Acree and Judges Lambert and Jones with Judge Lambert writing the majority opinion, Acree dissenting, and Jones concurring but adding a concurrence. The COA reversed and remanded.

Here we go (with all quotes from the actual opinion):

This is a medical malpractice case arising out of the underlying Defendant, Dr. Ted Jefferson’s, alleged failure to properly repair Eggemeyer’s broken arm by placing enough screws below the fracture site and by failing to diagnose a post-operative infection. The first trial in this case took place in August 2012. During that trial, Dr. Jefferson violated the court’s instructions and orders by repeatedly referring to Eggemeyer’s medical insurance. The trial court declared a mistrial and held Dr. Jefferson in contempt, but did not make a determination of the sanctions until after the second trial.

* * *

Additionally, after the mistrial, the Court instructed counsel that the case would be retried as it now sits. There would be no new experts or theories or anything else that was not disclosed in the first trial. This was in an effort to keep the costs to a minimum and to shorten any delay in retrying the case.

Following the mistrial, Dr. Jefferson replaced attorney E. Frederick Straub with attorneys Scott Whonsetler and Jeffery Thompson.  Plaintiff then renewed the above motion at a pre-trial conference, and the court reiterated its position and the new “Defense counsel stated that they would abide by this ruling.”  Defense counsel did not, and plaintiff submitted a brief address 12 of the most egregious errors etc., and following a hearing the Judge Craig Clymer issued the following oral ruling (followed by a written order):

And I mean not even get up and tiptoeing to the line. Because, this is a pretty egregious violation of the rules, and it’s an ambush. And, particularly I think when we were sitting there yesterday talking about this and saying no new issues of legal liability in this case, I think you’re sitting there and you knew that you were going to do this. And, we couldn’t pull it out of you. And you stand up in front of that jury and tell them that, you completely went against the ruling of the Court, in doing that. And so, I don’t know…I don’t know what the outcome is going to be right now other than I’m going to be watching to make sure we don’t get anywhere near any of that. And, Dr. Jefferson as well. Now, you may be asking some question and, if Dr. Jefferson believes he’s going to bring that in, I have no problem at all with enforcing the Court Order by either a civil contempt, or a criminal contempt. And the civil contempt or criminal, either one can be by imposing fines or it can be jail. And, I don’t tend to try this case another time. And so, ya’ll [indicating Whonsettler and Dr. Jefferson] need to get your act together on this. And, if I hear anything, I don’t have time to go through all of these things and say, “Ok, We can’t do this. We can’t do that.” This is all stuff that should’ve been handled by reputable attorneys, ethical attorneys, a long time ago. That here’s what this trial is going to be about, and we understand. Maybe I just have the luxury of dealing with attorneys who play fairly and by the rules, and I don’t have these problems.

And defense counsel, still failed to follow this order –

During closing arguments, Mr. Whonsetler again referenced Dr. Jefferson placing “three screws below the fracture line.” Eggemeyer again objected and the trial court ruled from the bench, “And I just know now, again, you have violated a Court order in this case.” The court admonished the jury to disregard the statement. Undeterred, Mr. Whonsetler immediately turned to the jury and said, “Ladies and Gentlemen, you will have the x-rays. Take a look and you will see that below the fracture line there are three screws that go from cortices to cortices. The cortices are the white portion of the bone, at either side of the bone and you will see that. You can measure it up against the original film and you will see that it is beneath the fracture line.” Eggemyer objected again, and the objection was sustained; however, counsel was not permitted to approach and no admonition was given. The court stated, “Just go on to something else. I’ll decide how we’ll handle that.”

The jury returned a defense verdict, and the plaintiff appealed claiming the trial court abused its discretion denying his motion for a new trial.  Dr. Jefferson cross-appealed the award of sanctions against him for attorney’s fees of $58,858.82 (and the court stating these were because of Dr. Jefferson’s direct defiance of its orders throughout the first trial).

[Editor’s note: Nothing in the appeal showed defense counsel attempting to preserve these issues by an avowal.]

As the Court of Appeals held:

We agree with Eggemeyer that CR 59.01 is absolutely designed to prevent the conduct that occurred in the instant case. The trial court clearly and unequivocally ruled, after first declaring a mistrial, that the second trial would not be an opportunity for the defense to present new theories or evidence. In fact, the trial court explicitly prohibited the defense from presenting the exact evidence and theories they attempted to get in during the first trial. While Dr. Jefferson attempts to couch this as an innocent mistake of the trial court’s meaning in his brief to this Court, we are not persuaded. Instead, we agree with the trial court that defense counsel attempted to ambush Eggemeyer and directly violated specific repeated orders of the Court. The record reflects a clear intent by defense to proceed however they pleased, in direct contradiction of the trial court’s instructions and in direct contradiction of the promises they made to the court prior to the beginning of the second trial.

To be clear, we hold that the trial court’s failure to grant Eggemeyer a new trial was an absolute abuse of discretion, and we find palpable error under CR 61.02. [emphasis added].

With regard to the sanctions, the Court of Appeals held:

Dr. Jefferson argues that the amount of sanctions was excessive, contending that Eggemeyer’s counsel was likely paid on a contingency basis. A review of the record indicates that the trial court considered the amount of sanctions and lowered the amount from that originally requested by Eggemeyer. We do not find the sanctions to be excessive and will not disturb them on appeal.  * * *

Judge Jones joined in the majority opinion and filed a separate concurring opinion–

I join in the majority opinion, but write separately because I do not believe that it was necessary for the majority to engage in a palpable error review. The palpable error standard is reserved for review of unpreserved errors. I believe that Eggemeyer preserved the new trial issue making palpable error review unnecessary.

Eggemeyer objected throughout the trial to argument and evidence concerning the new theories. Despite being repeatedly instructed to avoid those issues, defense counsel persisted in inserting those issues into the trial from the beginning to the end of the trial. While each isolated incident may not have been enough to warrant a new trial, the cumulative effect of repeatedly hearing those -15- theories referred to throughout trial, without a stronger admonition from the court, cannot be ignored. Indeed, the statements so infected the trial one wonders whether any admonition would have been effective to cure the prejudice.

“This court has condemned, in every instance when it has been brought to its attention, statements made by counsel not supported by the record, and where such statements are persisted in, and a party recovers a verdict when it is reasonably inferable that the improper statements affected the minds of the jury, the judgment should not be allowed to stand.” Connecticut Fire Ins. Co. v. Colker, 16 S.W.2d 761, 762 (Ky. 1929).

Judge Acree’s dissent wiped away the cobwebs from the books as he referenced the statute from the 1851 Code, raised the name of Henry Clay, and compared the code to what was then to what is now with a heavy reliance upon the trial judge’s discretion.  In fact, cases granting the trial judge “wide legal discretion” and “very strong reasons for granting a new trial” from 1984 and 1952, respectively came to the forefront of his analysis.  Judge Acree then states “Nothing in our jurisprudence suggests we are today less reluctant to find abuse of a trial court’s discretion on this issue. That discretion is my touchstone.”

The dissent then gets confusing from this point forward when Acree refers to legal authority stating

Where an attorney “‘deliberately go[es] outside the record in the jury argument and make[s] statements, directly or 3 The motion was made and granted in open court but the order was entered on November 19, 2012, after the jury deliberated following the second trial. -20- inferentially, which are calculated to improperly influence the jury,’ . . . prejudice . . . may be presumed.” Smith v. McMillan, 841 S.W.2d 172, 175 (Ky. 1992) (quoting Louisville & N.R. Co. v. Gregory, 144 S.W.2d 519, 522 (Ky. 1940)). But what, in practice, does this “presumed prejudice” mean?

* * *

Prejudice varies by degree.

* * *

Skilled practitioners make use of the variability of presumed prejudice as part of their trial strategy. While a counsel’s reference to facts not in evidence occurs accidentally from time to time, 4 it would be naïve to presume it is never the result of counsel’s conscious decision and intentional act. How far to push this envelope is trial strategy. How opposing counsel reacts is also trial strategy. While all improper argument will justify sustaining an objection to it, the offense may be so slight that opposing counsel, as a matter of trial strategy, will choose not to object 5 or, if she does object, will choose not to follow up by requesting an admonition.6 Counsel must weigh both the effectiveness and impropriety of an argument before requesting an admonition, knowing that the admonition will repeat and even showcase it.

The remainder of the dissent then seems to bounce around trial strategy and the use of objections and admonitions.  “At this point, again, strategy comes into play. Counsel objecting to the improper closing must decide whether to move for a mistrial, i.e., ask the trial court to discharge the jury before a verdict is ever reached. However, doing so has an effect similar to objecting or seeking an admonition – it brings further attention to the improper comments. Counsel must then undertake an analysis similar to that just outlined. ”

And, the concluding paragraph of the dissent goes – –

Though the case before us may be closer than others, I simply do not see “very strong reasons for granting a new trial [or] reasonable certainty that injustice or wrong would result” by affirming the trial court’s exercise of discretion here. Gray v. Sawyer, 247 S.W.2d 496, 498 (Ky. 1952). Clear it was that the trial court did not appreciate the liberties taken and indiscretions exercised by Dr. Jefferson’s counsel. That is evident from the trial court’s rebukes and admonitions. But while the trial court sanctioned Dr. Jefferson by a separate order, the court did not sanction counsel for improper conduct. Because the trial judge was in a better position to make the determination whether a new trial was justified, and because this is not a case clearly justifying reversal of that determination, I would affirm.

[Editor’s Note:  It would seem that “trial by ambush” and repeatedly ignoring trial court orders goes beyond the pale of inadvertence and, in my opinion, strikes at the very heart of justice.  This is not gamesmanship where counsel’s abuse of the rules amounts to trial strategy which then forces opposing counsel to make trial strategy decisions in response to intentional misconduct.  The insurance lawyer, in this case of the second trial, did more than play fast and loose with the law and trial orders, he exhibited open defiance and disrespect which ambushed plaintiff’s counsel, and should not be characterized as boys will be boys.  Odd and unusual case, and while those on Olympus play, the mere mortals pay because with a third trial on the horizon it is beyond cavil that it now appears that justice delayed is nothing more than justice denied.  Those old equity principles have a moral foundation to them which should not escape their application to achieve the ends of  justice today.

Editor’s Note:  Why weren’t these issues raised by Whonsetler in the second trial raised by Straub in the first trial?]

Case Note – When common law medical negligence instruction given, no need for separate failure to consent instruction (Horsley vs. Dr. Kenneth Smith and KS Eyeworks, COA Published, 2/13/2015)

New Adair County Judicial Center, Columbia, Kentucky.

New Adair County Judicial Center, Columbia, Kentucky.

COA affirmed jury verdict in favor of defendant, Dr. Kennth R. Smith and KS Eyeworks in a medical negligence and informed consent claim. The basic facts were that Dr. Smith advised he should have cataract surgery on both eyes, explained the risks, and indicated he would anesthetize the eyes either with eye drops or an injection. Surgery on right eye was successful with Dr. Smith injecting the anesthetic which was his usual practice. Surgery on the second eye did not go so well when the needle ruptured a blood vessel in Horsley left eye resulting in blindness in the left eye.

The allegation in the complaint were common law negligence and informed consent. The informed consent claim was based upon Dr. Smith not explaining the alternative risks of eye drops versus injections.  After a 3-day trial, the jury returned a defense verdict.

The complaint stated:

4. [I]t was the duty of [Dr. Smith] to exercise that degree of learning, skill, ability, care, attention, diligence, prudence, common sense and vigilance ordinarily possessed by physicians, surgeons and ophthalmologists, practicing under the same or similar circumstances and to obtain [Horsley’s] informed consent regarding the surgical procedures to be performed . . . .

5. [Dr. Smith was] negligent in the care and treatment of [Horsley] in that [he] failed to use the same degree of skill, diligence and care as is possessed by prudent, skillful, careful and knowledgeable physicians, surgeons and ophthalmologists under the same or similar circumstances and otherwise deviated from the standard of care applicable thereto.

6. [Dr. Smith] failed to obtain [Horsley’s] informed consent regarding the surgical procedures performed upon [Horsley].

7. As a direct and proximate result of [Dr. Smith’s] negligence, deviations from the standard of care and lack of informed consent, [Horsley] sustained severe, permanent and disabling injuries . . . .

The case culminated in a three-day jury trial. Horsley argued both that Dr.
Smith negligently administered the anesthesia, and that he failed to adequately
explain the anesthesia could have been administered by using numbing drops
instead of injection. Horsley claimed that had Dr. Smith made him aware of these alternative methods, his decision to undergo surgery may have been different.

On cross-examination, Horsley’s counsel presented Dr. Smith with a page
from the American Medical Association (AMA) website. Dr. Smith agreed with
the statement there that, depending on the situation, it is appropriate to inform a patient of alternatives to the proposed course of treatment and associated risks.

Dr. Smith admitted further that although there are several ways to administer
anesthesia before cataract surgery, his standard practice was to perform an
injection. While Dr. Smith recalled discussing with Horsley the different ways of
administering anesthesia, he conceded that he did not give Horsley the option of selecting his choice of anesthesia.

Horsley also tendered a second instruction which he attributed to Palmore,
Kentucky Instructions to Juries, Fifth Ed., § 23.10. The instruction stated: “With
respect to disclosing to [Horsley] the risks of the surgical operation he proposed to perform on him, it was the duty of [Dr. Smith] to exercise the degree of care and skill expected of a reasonable competent practitioner specializing in ophthalmology and acting under similar circumstances.” (Plaintiff’s Tendered
Instruction No. 2). Except for the introductory clause regarding disclosing risks, the two proposed instructions are substantively identical. However, Horsley did
not offer this instruction as an alternative, but in addition to the first instruction.

Largely consistent with Horsley’s first instruction and paragraph 4 of his complaint, the circuit court instructed the jury as follows:

It was the duty of Dr. Kenneth Smith in treating Wilbert Horsley to exercise the degree of care and skill of a reasonably competent ophthalmologist acting under similar circumstances. If you are satisfied from the evidence that Dr. Smith failed to comply with this duty, and further satisfied that such failure was a substantial factor in causing the injuries complained of by Wilbert E. Horsley, then you will find Dr. Smith at fault.

The jury found for Dr. Smith. Horsley’s motions for a new trial or judgment notwithstanding the verdict were denied, and the trial court entered judgment in accordance with the verdict. Horsley now brings this appeal.

The COA disagreed with Horsley’s claim the doctor had a duty to alert his patient to alternative anesthesia methods and then the duty to obtain consent.

Specifically, the COA “*conclude[d] that informing the patient of risks and options and obtaining consent to surgery are just a few of the many medical responsibilities expected of physicians who must abide by a standard of care defined by the medical profession itself, the failure of which constitutes the breach of a legal duty. All such medical responsibilities can be adequately addressed in a single duty instruction. They always have been and they were in this case.”*

With but one exception which we shall discuss later [Oghia v. Hollan, 363 S.W.3d 30 (Ky. App. 2012)], we have never deviated from the approach in VanMeter, but followed it through an evolving jurisprudence and despite legislative tinkering (as also discussed infra). As discussed below, we have steadfastly applied the bare-bones approach and stuck with a single instruction defining the whole duty of the physician to his patient whether the breach alleged was a physician’s:

(1) “failure to consider the history given by the patient[,]” Mackey v. Greenview Hosp., Inc., 587 S.W.2d 249, 254 (Ky. App. 1979);

(2) “failure to timely diagnose and treat” the patient’s disease, Dennis v. Fulkerson, 343 S.W.3d 633, 634 (Ky. App. 2011);

(3) “improperly administer[ing] anesthesia[,]” Cohen v. Alliant Enters., Inc., 60 S.W.3d 536, 538 (Ky. 2001) (citing Copeland v. Humana of Kentucky, Inc., 769 S.W.2d 67 (Ky. App. 1989);

(4) “failure adequately to inform the patient” of risks associated with treatment, Keel v. St. Elizabeth Medical Ctr., 842 S.W.2d 860, 862 (Ky. 1992);

(5) “negligence . . . in performing the surgery[,]” Engle v. Clarke, 346 S.W.2d 13, 15 (Ky. 1961).

(6) “improper treatment[,]” Johnson v. Vaughn, 370 S.W.2d 591, 597 (Ky. 1963);

(7) “get[ting] beyond the field of the operation and injur[ing] some sound portion of the patient’s body not involved in the operation,” Fields v. Rutledge, 284 S.W.2d 659, 661 (Ky. 1955); or

(8) “negligence . . . in postoperative care[,]” Engle v. Clarke, 346 S.W.2d 13, 15 (Ky. 1961).

In none of these cited cases did the court give a separate jury instruction, specific to the identified medical responsibility, to supplement the general legal duty instruction. A second, more specific instruction risks improperly “giv[ing] undue prominence to certain facts and issues.” Fields, 284 S.W.2d at 662.

However, Horsley points us to a particular passage in Campanell “that instructions should not blend distinct legal concepts. Liability can be premised separately based on lack of informed consent and deviation from the standard of care.” Id. We interpret this bit of unpublished dicta consistently with established case law and our analysis that lack of informed consent is not a separate tort. At most, this passage is an unartful way of saying what was first said more than a hundred years ago in VanMeter, supra.

The COA spent a significant portion of their efforts in affirming the defense verdict addressing what some refer to as a malpractice crisis and Defendant’s expert Dr. Smith who sent newspaper articles to Horsley anonymously and then testified falsely at trial.  The Trial Court’s sanction of denying a default judgment but ordering the disclosure of the false testimony was admissible at trial.

COA affirmed the defense verdict.

Click on “continued reading” for the full text of the opinion.

Case Notes: A River Runs Through It in Jurisdiction issues in case involving medical treatment in Louisville but followup surgery across the Ohio River (Cooper vs. Dr. Ajith Nair, Kentuckiana Pain Specialists and Metro Specialty Surgery Center, COA NPO 1/9/2015)

 

Screenshot capture from Google Maps.

Screenshot capture from Google Maps.

This decision highlights what the risks are when you select a Louisville physician who then ships you across the river to Indiana for surgery (where there is more favorable medical malpractice protection for the doctor but a most tortuous path for those who have been injured when trying to get their lives back from a doctor’s mistakes).  The doctors say it keeps their costs down by operating in Indiana, but another way to look at it is that it frustrates the patient’s care and needs, especially when the procedure is believed to have been botched.

Here’s the case and a recommended read for the limits of prosecuting medical negligence claims when a river runs through it.  Note, the decision indicates the actual act of negligence arose from the surgery in Indiana which has a two year statute of limitation with Kentucky having a one-year statute.  The lawsuit was filed in Kentucky on the eve of the one year Kentucky SOL (statute of limitation), and the trial court ruled nearly a half-year prior to the two-year SOL for Indiana.  Nothing was said in this opinion whether they was concurrent or subsequent filing in Indiana, and one can clearly understand the fight to stay in the Commonwealth to avoid the harsh and nearly insurmountable obstacles to recovery through the Indiana medical malpractice system.  Thus, the results might not be so harsh as originally suspected if there was concurrent filing in Kentucky and Indiana.  And, this my friends is why medical malpractice prosecution and defense is not for the faint hearted, and why the traffic snarls are not the only reason to stay on this side of the river when it comes to medical treatment.

And, of course, these litigants have yet to address the choice of law issues in this one, and will still have to navigate how the office visits and treatment might allow personal jurisdiction over Dr. Nair and Kentuckiana Pain Specialists.

Medical Negligence.  Venue and in personal jurisdiction re Indiana surgery center; Long Arm Statute (interesting read since physicians treated plaintiff in Louisville, but physician performed surgery in Indiana at the Metro Specialty Surgical Center)

Teddy Cooper vs.  Dr. Ajith Nair, M.D.
COA NPO 1/9/2015
Affirming in part, vacating in part and remanding;  Jefferson County

Teddy Cooper and Lori Cooper, his wife, appeal from the order of the Jefferson Circuit Court dismissing their negligence action against Dr. Ajith Nair; Kentuckiana Pain Specialists, P.S.C.; and Metro Specialty Surgery Center, L.L.C. On appeal, the Coopers argue that the trial court erred in determining that Jefferson County was not the proper venue for their claims and that the court lacked in personam jurisdiction over Metro Specialty Surgery Center, a business entity organized under the laws of Indiana and domiciled there. Having reviewed the record and the arguments of counsel, we affirm in part, vacate in part, and remand.

In this case, a Hardin County resident was treated by Dr. Nair at Kentuckiana Pain Specialists for 22 separate visits for low back complaints, but has back surgery in Indiana at the Metro Specialty Surgery Center.  One day before the one-year anniversary of the surgery, Cooper filed suit in Jefferson County against Dr. Nair, Kentuckiana Pain, and Metro Specialty Surgery Center claiming they deviated from the standard of care.  What was not included in the complaint was the basis for jurisdiction over Metro Surgery who raised personal jurisdiction and venue in defense.  It was not disputed that the med-mal claim was based upon the Indiana surgery.

Judge Bisig, Jefferson Circuit Court, dismissed the claims against Metro Surgery for lack of jurisdiction and dismissed the claims against Dr. Nair and Kentuckiana Pain for lack of venue.

Jurisdiction was noted to be a two-step process.   First was jurisdiction authorized under the long arm statute?  Second, does jurisdiction comport with federal due process.

While the Coopers are required to set forth the necessary facts supporting a finding of jurisdiction, they failed to identify to the trial court which of these circumstances was relevant to its  determination. Nor have they offered any basis for the exercise of  personal jurisdiction in their brief on appeal. Instead, the Coopers argue that they are entitled to an opportunity to conduct further discovery since they adduced evidence sufficient to show: that Dr. Nair is an agent of Metro Specialty Surgery Center; that other Kentucky doctors have a relationship with the surgery center; and that the surgery center maintains contact and does business with Kentucky patients. The Coopers contend that the trial court erred by denying them the opportunity to conduct further discovery with respect to these issues.

The Court of Appeals in an opinion written by Judge Combs concluded there was no personal jurisdiction over Metro Specialty Surgery Center.

It is undisputed that Metro Specialty Surgery Center is an Indiana business entity with its principal place of business in Jeffersonville, Indiana. It is not registered with the Kentucky Secretary of State, and it is not authorized to conduct business in the Commonwealth. In fact, given the breadth of services that it offers on an outpatient basis, it is specifically prohibited from conducting business here. It is undisputed that the surgery center  as not involved with the care and treatment that Teddy Cooper was offered or  provided in the Commonwealth. The surgery center provided care to him only  in Indiana. The surgery center does not supply goods nor does it contract to supply goods in the Commonwealth. It has no agents or employees working on its behalf in Kentucky. It maintains no office in Kentucky; it does not insure any party in the Commonwealth; it does not own property here; and the Coopers have never alleged that it caused tortious injury here. Under these circumstances, we  conclude that the requirements of our long-arm statute have not been satisfied.

However, with regard to personal jurisdiction over Dr.  Nair and Kentuckiana Pain Specialists, the COA vacated the order of the Jefferson Circuit Court “dismissing the claims asserted by the Coopers against Dr. Nair and Kentuckiana Pain Specialists and remand for further proceedings. However, based upon the foregoing analysis, we affirm the order of the court dismissing the claims asserted by the Coopers against Metro Specialty Surgery Center. ”

[continue reading below for the entirety of the appellate opinion]

Kentucky Court of Appeals Decisions (Minutes ) for August 23, 2013 (Nos. 802-828); 27 decisions posted and no cases are “To Be Published”)

Sample Medical Illustration for Use in Court Prepared by Medical Illustrator Delilah Cohn, MFA, CMI http://www.medillustrationstudio.com

Sample Medical Illustration for Use in Court Prepared by Medical Illustrator Delilah Cohn, MFA, CMI http://www.medillustrationstudio.com

Medical illustrations can take your diagnostic images and put them in an illustration that can be  used in court, mediation or depositions to be more easily understood by jurors, adjusters, mediators and with more impact!

Your expert can use the illustration to portray their testimony, and jurors can take the hard copy back into the jury room.  Digital images can be incorporated into your media presentation for opening and closings.

Please note the above image is a picture of the illustration prepared by Delilah Cohn for my last trial and enabled me to obtain a $300,000 plus verdict.  A picture is worth a thousand words, and can be worth 300,000  dollars!  The actual image was of  better quality, and my testifying radiologist loved it!  It provided an excellent comparison comparing before and after MRI studies of the disk and its damage from the collision.  Wham!  An actual MRI slice does not depict the graphic consequences of an extruded disk and its encroachment on the spinal column and nerves like a colorful illustration.

Delilah Cohn, MFA, CMI (click here to go to her web site)

Delilah Cohn is an award-winning, board certified medical illustrator with over 30 years of experience. She earned a Bachelor of Science degree in Medical Art from the University of Illinois Medical Center in Chicago. She holds a Master of Fine Art degree in Illustration from Syracuse University and takes numerous continuing education programs in art and medicine to maintain her certification.

For those who wonder how I was able to “blur out” the name of the person in the image? Well,  I used a free program called “skitch” from Evernote.  Very useful.  To reduce the resolution of the image to a more manageable size for the internet, I used Pixelmator (a cheaper and easier to use version similar to Photoshop from Adobe ™). You can most definitely use photoshop or a stripped down version of Elements for both Mac and Windoze.  All Delilah provided me with high qualit digital images, I did not use them in this post but simply to a digital picture and made sure the image was only 72 DPI.  Good enough for the web, but not good enough for court.

Please note, a medical illustration can be tailored to your particular x-rays etc., or you can save some money and use “stock” photos which are helpful but lack the laser focus connection to your particular case.

Published and Unpublished Decisions from the Kentucky Court of Appeals for August 23, 2013 (click here for AOC set of minutes)

The Court of Appeals announced 18 decisions this date, designating four of those decisions for publication (“To Be Published”).

Click here for complete list of all archived Court of Appeals Minutes that you can download from the Administrative Office of the Courts web site.

Short summary of the published decisions for this week are (click on the link for the full text of the decision from AOC):

Guess what none were designated to be published this week!

Download (PDF, Unknown)

Medical Records: Statute entitling patient one free copy means what it says one free copy and no charging! (Erikson vs. Gruner & Sims, COA, Pub. 5/17/2013)

Kentucky’s statute requires medical providers to provide their patients a free copy, but in the published decision of Eriksen PSC  vs. Gruner & Simms PLLC, the COA held in a unanimous decision written by Judge Acree that when the statute says to give a patient a free copy of his or her medical records that means one free copy, no charges, and includes providing to his or her attorney requesting that free copy.

The procedural history of this decision was a declaratory judgment action filed by the law firm against a chiropractor who insisted on charging for providing copies of his records.  The law firm filed the petition, the Jefferson Circuit Court (Judge Judith McDonald-Burkman) granted summary judgment in favor of the law firm’s request for a free copy, and Judge Acree and the COAKY affirmed.

Here is the decision:

490. CIVIL PROCEDURE. FREE COPY OF MEDICAL RECORDS
ERIKSEN, P.S.C. (WILLIAM C.) VS. GRUNER & SIMMS, PLLC
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND THOMPSON (CONCURS)
2012-CA-000563-MR
TO BE PUBLISHED
JEFFERSON

ACREE, CHIEF JUDGE: William C. Eriksen, P.S.C. d/b/a Eriksen Chiropractic Centers, appeals from a summary judgment granted by the Jefferson Circuit Court to Gruner & Simms, PLLC.

This appeal concerns the interpretation of Kentucky Revised Statutes (KRS) 422.317(1), which provides as follows:

Upon a patient’s written request, a hospital licensed under KRS Chapter 216B or a health care provider shall provide, without charge to the patient, a copy of the patient’s medical record. A copying fee, not to exceed one dollar ($1) per page, may be charged by the health care provider for furnishing a second copy of the patient’s medical record upon request either by the patient or the patient’s attorney or the patient’s authorized representative.

Gruner & Simms, PLLC, a law firm, filed a petition for declaratory relief in the Jefferson Circuit Court after Eriksen refused to provide Gruner with a free copy of one of its client’s medical records. Eriksen’s policy is outlined in a letter sent to one of Gruner’s attorneys:

Pursuant to Kentucky statute, we provide our patients one free copy of their medical records. This one free copy of records is provided to our patients in order to enable them to educate themselves with regard to their medical history.

All other persons including attorneys and authorized representatives requesting records on behalf of an Eriksen Chiropractic patient must first notify us in writing by mailed letter that they agree to pay $1.00 per page in copying fees associated with tendering the patent’s records. An invoice for these copying fees will be sent with the records after your letter agreeing to pay these fees for the specified patient is received by our office. Please be advised that due to the large volume of records requests received by our office, we cannot provide total records copying costs in advance.

Please tender a letter to the address above . . . agreeing to pay the copying fees associated with your records request in order to receive the records you desire.

(Emphasis in original.)

Eriksen filed a counter-petition, presenting an alternative interpretation of the statute and also challenging its constitutionality.1 The circuit court granted summary judgment in favor of Gruner on March 2, 2012. This appeal by Eriksen followed.

Furthermore, state government often passes laws that increase the cost of doing business. Whether health care providers factor into their pricing the possibility of incurring expenses associated with statutory compliance is a business decision the government usually does not make for a business. At least it has not in this case. These constitutional arguments, therefore, necessarily fail.

The order granting summary judgment is affirmed. ALL CONCUR.

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TORTS. WRONGFUL DEATH. MEDICAL MALPRACTICE. DIRECTED VERDICT. Marlow vs. Buck, COA, NPO 4/12/2013

MARLOW(PATRICIA), AS ADMINISTRATRIX, ET AL.
VS.
BUCK (JAMES)
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
MOORE (CONCURS) AND TAYLOR (CONCURS IN RESULT ONLY)
2012-CA-000125-MR
2012-CA-000189-MR
NOT TO BE PUBLISHED 4/12/2013

NICKELL, JUDGE: Patricia Marlow, on behalf of the estate and minor children of Doveanna Marlow, deceased, (collectively “Marlow”) has appealed from the December 22, 2011, denial of her motion for a judgment notwithstanding the verdict (“JNOV”) following a jury verdict and subsequent judgment entered by the Fayette Circuit Court on December 2, 2011, in favor of James Buck, M.D. Dr. Buck has filed a protective cross-appeal. After a careful review of the record, the briefs and the law, we affirm.

Marlow’s executrix brought this action against Dr. Buck on December 31, 2008, and the case proceeded to a jury trial on November 14-17, 2011. The jury was presented evidence and testimony on three general issues: whether Dr. Buck breached the standard of care; whether such breach was a substantial factor in causing Marlow’s death; and damages. Of importance to this appeal, Dr. Buck admitted he had been the only person pushing the needle that pierced Marlow’s aorta and took responsibility for causing her death. He could only speculate as to why the guide needle was inadvertently advanced too far, but vehemently denied that he breached any standard of care. He stated he had performed thousands of CT-guided procedures without incident and confirmed he had acted in “the same careful and deliberate way” during Marlow’s procedure. Experts called by both sides universally agreed that bad results could occur absent medical malpractice in biopsy procedures.

At the close of Marlow’s case-in-chief, and again at the close of all the proof, Marlow moved the trial court to direct a verdict in her favor. She argued Dr. Buck and his retained causation expert made judicial admissions that removed the issue of causation from the jury. Dr. Buck opposed the motions and contended that although he had admitted he caused the guide needle to puncture Marlow’s aorta, there had been no admission he violated the standard of care or that he was legally responsible for Marlow’s death based on such breach. The trial court denied the motions and reasoned sufficient evidence existed to send the matter to the jury.

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Medical Negligence Statute of Limitations not tolled for continuous course of treatment (Litsey v. Allen, COA, Pub., 6/1/2012)

Retired (and Senior Judge) Joseph Lambert’s decisions are almost always a breath of fresh air in succinctness, analysis, and lack of extraneous issues.  In the following decision, Senior Judge Lambert addressed the applicability of the tolling provision to medical malpractice cases arising from the “continuous course of treatment.”  In this case, the patient had alleged inappropriate sexual advances by her treating physician during the putative tolling period, and claimed that the Xanax prescriptions impaired her ability to exercise proper judgment about her course of treatment and his misconduct.  As stated by the COA —

However, in her deposition, Litsey testified that she had “no doubt” that Dr. Allen’s conduct was inappropriate at the time she left his office on August 27, 2007. Although Litsey continued to have her prescriptions renewed by Dr. Allen after that date, she does not allege that she was relying on him to correct the consequences of poor treatment. This is not a case for the continuous course of treatment doctrine, and there was no tolling of the statute of limitations.

485. STATUTES OF LIMITATION.  MEDICAL NEGLIGENCE (CONTINUOUS TREATMENT AND TOLLING ADDRESSED)
LITSEY (DEVON)
VS.
ALLEN (JACK), ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
DIXON (CONCURS) AND VANMETER (CONCURS)
2010-CA-001777-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, SENIOR JUDGE: Devon Litsey appeals from a summary judgment of the Jefferson Circuit Court dismissing her claims against Jack Allen, M.D., his medical practice Gray & Allen, P.S.C. (collectively, “Dr. Allen”) and his insurance carrier, State Farm Fire and Casualty Company (State Farm). Litsey argues that the trial court erred by holding that her claims for malpractice and intentional infliction of emotional distress were barred by the one-year statute of limitations in KRS 413.140(1)(e). We agree with the trial court’s conclusion that Litsey’s claim for malpractice was not tolled following her last visit with Dr. Allen, and that her claim for intentional infliction of emotional distress was subject to the one-year limitation period.

With respect to the medical malpractice claim, KRS 413.140(1)(e) provides that “[a]n action against a physician, surgeon, dentist, or hospital licensed pursuant to KRS Chapter 216, for negligence or malpractice[]” “. . . shall be [brought] within one (1) year after the cause of action accrued[.]” Litsey admitted that her last visit with Dr. Allen occurred on August 27, 2007, more than one year prior to the filing of her claim. However, after her last visit, Litsey continued to have her prescriptions filled through Dr. Allen’s office until January of 2008. In addition, Litsey scheduled an appointment with Dr. Allen for January 17, 2008, but she did not keep the appointment. Litsey contends that the one-year limitation period was tolled by the “continuous course of treatment” doctrine and that the action filed in December of 2008 was timely.

In Harrison v. Valentini, 184 S.W.3d 521 (Ky. 2005), the Kentucky Supreme Court applied continuous treatment rule to medical malpractice cases. As applied, the “continuous course of treatment doctrine” provides that “the statute of limitations is tolled as long as the patient is under the continuing care of the physician for the injury caused by the negligent act or omission.” Id. at 524. (Footnote omitted). Since Litsey remained a patient of Dr. Allen’s until at least January of 2008, she maintains that her action filed in December of 2008 was timely.

In support of its decision, the Court in Harrison noted “that the trust and confidence [which] marks the physician-patient relationship puts the patient at a disadvantage to question the doctor’s techniques, and gives the patient the right to rely upon the doctor’s professional skill without the necessity of interrupting a continuing course of treatment by instituting suit.” Harrison, 184 S.W.3d at 524. By tolling the statute of limitations for medical malpractice, the continuous course of treatment doctrine gives the patient the right to rely upon the physician without interrupting treatment by instituting suit. The doctrine “also gives the physician a reasonable [opportunity] to identify and correct errors made at an earlier stage of treatment.” Id. at 524-25, citing Watkins v. Fromm, 108 A.D.2d 233, 488 N.Y.S.2d 768, 772 (1985). Consequently, the Court held that,

where a patient relies, in good faith, on his physician’s advice and treatment or, knowing that the physician has rendered poor treatment, but continues treatment in an effort to allow the physician to correct any consequences of the poor treatment, the continuous course of treatment doctrine operates to toll the statute of limitations until the treatment terminates at which time running of the statute begins.

Id.at 525.

In this case, Litsey alleges that Dr. Allen made inappropriate sexual advances to her on her last two office visits, March 29, 2007 and August 27, 2007. Litsey contends that her reliance on Dr. Allen for Xanax prescriptions impaired her ability to exercise proper judgment about her course of treatment and his misconduct. However, in her deposition, Litsey testified that she had “no doubt” that Dr. Allen’s conduct was inappropriate at the time she left his office on August 27, 2007. Although Litsey continued to have her prescriptions renewed by Dr. Allen after that date, she does not allege that she was relying on him to correct the consequences of poor treatment. This is not a case for the continuous course of treatment doctrine, and there was no tolling of the statute of limitations.

Damages: Increased risk of harm and lost opportunity of recovery in medical negligence cases: Gill v. Burress, COA, 4/13/2012, Published

In medical negligence cases, a misdiagnosis creates two difficult problems for the injured claimant which do not appear to be fully appreciated by our appellate courts, usually under the misguided belief that it would be speculative or too speculative.  These two area are:

(1) lost chance or opportunity to be cured or even have their pain, suffering reduced or diminished.  I have always been amazed at the lack of realistic appraisal, if not naivite’, of the jurists in failing to comprehend that a misdiagnosis resulting in smaller chance of recovery is a wrong that should be compensated.  Whether the lost opportunity or reduction is 90% or 10%, patients/claimants are entitled to all of the chances and all the opportunity that should have been afforded to them to physically recover, have their life physically improved, have their pain mitigated or ameliorated in quantity or quality, and just to be simply free of the worry caused by bad medicine.

(2) in the following decision, the COA further buttresses Kentucky law on the damages of increased likelihood of future complications.

 

345. MEDICAL NEGLIGENCE. DAMAGES (INCREASED LIKELIHOOD OF FUTURE COMPLICATIONS)
GILL (PAULA K.)
VS.
BURRESS (SUSAN M.)
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
MOORE (PRESIDING JUDGE)
ACREE (CONCURS) AND VANMETER (CONCURS)
2011-CA-000332-MR
TO BE PUBLISHED
FAYETTE

MOORE, JUDGE: Paula K. Gill, D.M.D., appeals a summary judgment entered by the Fayette Circuit Court in favor of Susan M. Burress, M.D., after the circuit court determined that Burress conclusively proved that Gill would be unable to establish damages arising out of Burress’s alleged professional negligence in failing to detect a mass in Gill’s breast consistent with ductal carcinoma for a period of approximately eighteen months. We find that issues of material fact exist relating to certain elements of damage properly recoverable by Gill, but that other damages claimed by Gill are not recoverable in this case as a matter of law. Therefore, we affirm in part, reverse in part, and remand for further proceedings.

We begin our analysis by identifying Gill’s injury. Gill has had cancer. Burress makes the point in her brief of stating that her negligence, if any, did not cause the cancer. Gill argues, however, that she can prove that the virulent and life-threatening effect of the disease has been exacerbated by Burress’s negligent treatment and diagnosis. Specifically, Gill alleges that due to Burress’s negligence, her tumor grew unchecked for a period of approximately eighteen months and required stronger and more expensive treatment to cure.

In sum, Gill’s claim against Burress is not based upon the infliction of an injury, but upon the aggravation of an existing condition. Kentucky has long recognized the negligent aggravation of an existing condition as a cognizable injury in its own right. See, e.g., Louisville Taxicab & Transfer Co. v. Hill, 304 Ky. 565, 201 S.W.2d 731, 733 (1947). The same is true in other jurisdictions, like Kentucky, that refuse to recognize a loss of chance at a better outcome, or an increased risk of future harm, as an injury. See, e.g., Kilpatrick v. Bryant, 868 S.W.2d 594, 603 (Tenn. 1993) (holding that a plaintiff must prove it was more probable than not that medical negligence was the cause of her injuries, but “[t]his is not to say that a plaintiff could not recover for an aggravation of his physical condition if he proves by a balance of probabilities that the negligent act or omission caused the harm when there was a better than even chance of recovering to begin with.”)

A fair reading of Gill’s complaint reflects that she sought the following categories of damages relating to her injury: 1) mental anguish, emotional distress, and a loss of ability to enjoy life due to an increased fear of cancer recurrence or death; 2) compensatory damages arising as a result of her chemotherapy treatment and the surgical removal of her ovaries (which Gill did, purportedly, upon her physician’s advice to mitigate complications relating to chemotherapy); 3) a five to twenty-five percent decreased chance of remaining cancer-free; and 4) future medical treatment relating to a potential recurrence of cancer. As she did before the circuit court, Gill argues that summary judgment was inappropriate because evidence exists in the record indicating that she suffered these damages within a reasonable degree of medical certainty and as a proximate result of Burress’s alleged negligence in allowing a malignant tumor to improperly remain in her breast for approximately eighteen months. Upon review, we find that the trial court erred in granting summary judgment as to the first and second of the above-referenced categories of damages, but properly granted summary judgment with respect to the latter two.

In sum, Gill’s claim against Burress is not based upon the infliction of an injury, but upon the aggravation of an existing condition. Kentucky has long recognized the negligent aggravation of an existing condition as a cognizable injury in its own right. See, e.g., Louisville Taxicab & Transfer Co. v. Hill, 304 Ky. 565, 201 S.W.2d 731, 733 (1947). The same is true in other jurisdictions, like Kentucky, that refuse to recognize a loss of chance at a better outcome, or an increased risk of future harm, as an injury. See, e.g., Kilpatrick v. Bryant, 868 S.W.2d 594, 603 (Tenn. 1993) (holding that a plaintiff must prove it was more probable than not that medical negligence was the cause of her injuries, but “[t]his is not to say that a plaintiff could not recover for an aggravation of his physical condition if he proves by a balance of probabilities that the negligent act or omission caused the harm when there was a better than even chance of recovering to begin with.”)

A fair reading of Gill’s complaint reflects that she sought the following categories of damages relating to her injury: 1) mental anguish, emotional distress, and a loss of ability to enjoy life due to an increased fear of cancer recurrence or death; 2) compensatory damages arising as a result of her chemotherapy treatment and the surgical removal of her ovaries (which Gill did, purportedly, upon her physician’s advice to mitigate complications relating to chemotherapy); 3) a five to twenty-five percent decreased chance of remaining cancer-free; and 4) future medical treatment relating to a potential recurrence of cancer. As she did before the circuit court, Gill argues that summary judgment was inappropriate because evidence exists in the record indicating that she suffered these damages within a reasonable degree of medical certainty and as a proximate result of Burress’s alleged negligence in allowing a malignant tumor to improperly remain in her breast for approximately eighteen months. Upon review, we find that the trial court erred in granting summary judgment as to the first and second of the above-referenced categories of damages, but properly granted summary judgment with respect to the latter two.

As to the first category of damages, Kentucky recognizes that where substantial evidence of probative value supports an increased likelihood of future complications resulting from a negligently inflicted injury and that increased likelihood, in turn, initiates serious mental distress, the resulting mental distress is compensable. See, e.g., Kemper v. Gordon, 272 S.W.3d 146, 150-51 (Ky. 2008) (citing Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984)). Moreover, the increased likelihood of recurrence that is responsible for the ensuing mental distress need not be anything more than a mere possibility. See Davis, 672 S.W.2d at 931, and at 933-34, J. Vance dissenting (“The drastic consequences which may befall movant are only possibilities and, according to the medical testimony, not very great possibilities, certainly nothing even approaching a probability.”).

We are mindful of Burress’s contention that it would be difficult for Gill to attribute any specific part of her existing mental anguish that is specifically related to her five to twenty-five percent increased likelihood of having cancer again, as opposed to what her mental anguish would have been even if she had been timely diagnosed with cancer. Nevertheless, this difficulty should not preclude Gill from presenting her case to the finder of fact. In this respect, we are persuaded by the logic of our sister court illustrated in Swain v. Curry, 595 So.2d 168, 172 (Fla. 1st DCA), rev. denied, 601 So.2d 551 (Fla. 1992). There, the failure to timely detect a breast tumor resulted in a radical mastectomy, whereas earlier detection would have resulted in a lumpectomy. Testimony was presented that Mrs. Swain had a sixty-five percent probability that she would develop a recurrence of the cancer, whereas a timely diagnosis would have resulted in only a five to ten percent possibility of recurrence. In addressing the issue of recoverable damages, the Swain Court noted:

Mrs. Swain is entitled to attempt to prove that her emotional damages are presently greater as a result of such increased fear of recurrence of cancer as has resulted from any provable negligence. Such damages are recoverable, not as a separate cause of action, but as an element of personal injury damages. . . . Claimant in this case certainly faces a formidable obstacle in attempting to demonstrate to the satisfaction of the finder of fact that her emotional distress is of a demonstrably and quantifiably different degree now, as compared to the case of prompt diagnosis and treatment. Difficulty of proof will not, however, deprive a plaintiff of the opportunity to present her case.

Id. at 173 (citation omitted). Importantly, the analysis set forth in Swain was in no way dependent upon that increased risk of recurrence being greater than fifty percent.

As to Gill’s claim that she suffered damage resulting from her chemotherapy treatment and the surgical removal of her ovaries in anticipation of chemotherapy, we likewise find the evidence is sufficient to present a question for the jury. Generally speaking,

[a]ll recoverable damages are subject to some uncertainties and contingencies, but it is generally held that the uncertainty which prevents a recovery is uncertainty as to the fact of damage and not as to its amount. Where it is reasonably certain that damage has resulted, mere uncertainty as to the amount does not preclude one’s right of recovery or prevent a jury decision awarding damages. Johnson v. Cormney, 596 S.W.2d 23, 27 (Ky. App. 1979) (emphasis added), overruled on other grounds by Marshall v. City of Paducah, 618 S.W.2d 433 (Ky. App. 1981); see also Hanson v. American Nat’l Bank & Trust Co., 865 S.W.2d 302, 309 (Ky.1993) (to the same effect), overruled on other grounds by Sand Hill Energy, Inc. v. Ford Motor Co., 83 S.W.3d 483, 495 (Ky. 2002).

We find no error, however, in the circuit court’s determination that any future medical treatment relating to a potential recurrence of cancer is non- compensable. As noted above, Kentucky law allows a plaintiff to recover for damages only where the fact of damage is reasonably certain. See Cormney, 596 S.W.2d at 27. Here, according to the evidence of record, Gill is currently cancer- free and it is at least seventy percent likely, e.g., more likely than not, that she will suffer no recurrence of cancer and, therefore, require no future medical treatment for it.

Similarly, we find no error in the circuit court’s determination that Gill’s purportedly five to twenty-five percent decreased chance of remaining cancer-free is non-compensable. Without laboring the point, a majority of jurisdictions consider a decreased chance for long-term survival, or lost chance for recovery or a better medical result (due to negligence), as a compensable injury,5 a

[[fn 5 A review of the reported cases that have considered the doctrines of “increased risk of harm” and “lost chance” indicates a wide disparity in acceptance and application. See, e.g., Causation- Loss of Chance, 54 A.L.R.4th 10 (1987); Damages-Loss of Chance, 81 A.L.R.4th 485 (1990). Nevertheless, we believe, like the Supreme Court of Delaware, that “Since loss of chance and increased risk of harm both rely on similar theoretical underpinnings . . . it would not be coherent to adopt increased risk without also adopting loss of chance.” United States v. Anderson, 669 A.2d 73, 75-76 (Del. 1995).]] minority of jurisdictions do not,6 [[fn 6 For a fairly recent breakdown of these jurisdictions, as well as an extensive analysis of the policies behind allowing for this type of recovery, see Matsuyama v. Birnbaum, 890 N.E.2d 819 (Mass. 2008). Notably, Tennessee, Delaware, and Florida, whose law we have briefly surveyed as persuasive authority, are among the jurisdictions noted in Matsuyama that either do not recognize this doctrine, or find it otherwise incompatible with existing precedent. See id. at 829 (citing Gooding v. University Hosp. Bldg., Inc., 445 So.2d 1015 (Fla. 1984)); Kilpatrick v. Bryant, 868 S.W.2d 594, 602-603 (Tenn. 1993); United States v. Cumberbatch, 647 A.2d 1098, 1102-1104 (Del. 1994))]] .and Kentucky is in the minority. See Kemper, 272 S.W.3d 146. Kentucky law also prohibits the possibility of future harm from constituting an element of damages if that possibility is considered outside the realm of damages for mental anguish. Id. at 150-151 (distinguishing Davis, 672 S.W.2d 928); but see United States v. Anderson, 669 A.2d 73, 78 (Del. 1995) (declining to regard fifteen percent increased risk of cancer as a legally recognized injury, but allowing increased risk, in and of itself, to be considered as an element of damages as demonstrative of a significantly greater injury).

In rebuttal, Gill argues that Kemper represents a gross misapplication and misinterpretation of Kentucky precedent, and urges this Court to overrule the Supreme Court on a variety of grounds. Suffice it to say, however, that “[t]he Court of Appeals is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court.” Rules of the Supreme Court (SCR) 1.030(8)(a). We find that the circuit court did not misapply the Kemper holding in this respect and we therefore find no error because we “cannot overrule the established precedent set by the Supreme Court[.]” Smith v. Vilvarajah, 57 S.W.3d 839, 841 (Ky. App. 2000) (citing Special Fund v. Francis, 708 S.W.2d 641, 642 (Ky. 1986)).

TORTS – medical negligence, informed consent: Moore v. Saint Joseph Healthcare, Inc. (COA 11/6/2009)

Moore v. Saint Joseph Healthcare, Inc.
2008-CA-002340 11/06/09 2009 WL 3672900

Opinion by Judge Stumbo; Judges Thompson and Wine concurred.

The Court affirmed a summary judgment entered in favor of the appellee hospital on appellant’s claim that the hospital was negligent in failing to obtain informed consent before administering a thrombin injection.

The Court held that the trial court properly granted summary judgment after finding that appellant’s written consent to an ultrasound compression encompassed his consent to the injection. Further, this finding comported with KRS 304.40-320(2).

MEDICAL NEGLIGENCE – Hooks left in scalp during brain surgery not negligence per se: Gregory B. Nazar, MD, et al. v. Sheila Branham, Executrix of the Estate of Roe Branham (SC 4/23/2009)

Gregory B. Nazar, MD, et al. v. Sheila Branham, Executrix of the Estate of Roe Branham
2004-SC-001015-DG April 23, 2009
2005-SC-000834-DG April 23, 2009
Opinion by Special Justice Mando; Chief Justice Minton and Justice Schroder not sitting.

During surgery to remove a brain tumor, a small metal “Durahook” was left in the patient’s scalp, necessitating a second surgery months later to remove the item. The patient brought a medical malpractice suit against the surgeon. The jury returned a defense verdict after the trial court refused to instruct the jury on the patient’s theory that the surgeon was vicariously liable for the nurses’ failure to remove the item. The Court of Appeals reversed, holding that under Laws v. Harter, leaving a foreign object inside a patient is negligence per se, and that the patient should have been awarded summary judgment on the issue of liability.

The Supreme Court reversed the Court of Appeals and overruled Laws, holding that the res ipsa loquitur standard was more appropriate than the stringent negligence per se standard for foreign object cases because it allows juries to determine the individual healthcare professional’s level of liability in a situation where any number of people may be responsible for leaving the object inside the patient. Having determined the issue of the surgeon’s personal liability was properly sent to the jury, the Court then took up the issue of the surgeon’s vicarious liability. The Court held that in order for vicarious liability to exist, it must be established that the nurses were the surgeon’s agents. The Court found the patient had presented no evidence of an agency relationship and noted the surgeon’s evidence showing that he did not control the nurses’ training, terms of employment or details of their work. As such, the Court held that the trial court was correct in its refusal to instruct the jury on vicarious liability. Justice Venters (joined by Justice Cunningham and Justice Noble) concurred but disagreed with the majority’s conclusion that the nurses were not agents of the surgeon. The minority wrote that because the surgeon did not order or instruct nursing staff in how to assist him did not necessarily negate the supervisor/agent relationship but might instead indicate that the surgeon was deficient in his supervision of the nurses.