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]

Case Notes: Watch out for the 1 year Statute of Limitations and Premises Liability – Landel vs. The Kroger Company (COA NPO 1/16/2015)

Not actual parking lot in this case.  Used solely for illustrative purposes.

Not actual parking lot in this case. Used solely for illustrative purposes.

The one-year state of limitations for most torts may be the law, and may work in many cases, but it can be way too short in this era of trying to figure out who the proper party is in this complex world of hide the ball from the Plaintiff.  The recent Court of Appeals’ decision in Landel vs. Krogers out of Russell County demonstrates this in relationship to whose parking lot is it anyway.

In this case, Vickie Landel was a Kroger customer who fell and injured herself in the parking lot.  She filed suit against Krogers since it was the parking lot outside of the Krogers’ store.  She fell on March 10, 2011, and filed her original complaint on November 2, 2011, but sought to amend the complaint to add the shopping center on March 21, 2012 – just eleven days after the one year anniversary and the expiration of the statute of limitation.  The shopping center obtained summary judgment dismissing the complaint against it for untimely filing (SOL), and Krogers obtained a dismissal of the complaint since it had no duty over the parking lot.

The plaintiff Landel claimed she did not know the identity of the shopping center, but Krogers had notified her by letter that the shopping center was responsible and provided her a copy of the lease.

Before discussing the issue of tolling as raised by the plaintiff in this case, let us take a look at some lessons to be learned in this case and those of a similar nature.

The identity of the “real” plaintiff can be difficult in the commercial context, and the identification of the real party can be fatal.  Most Krogers’ stores, however, have the actual name of the owner of the store location in black letters on the window near the door.  The name of the entity can be confirmed at the Secretary of State for the proper name for the style and the proper person for service.  However, this does not get you past possible problems, such as a the dangerous condition of the floor was the work of a vendor (eg., the Brown Hotel case and indemnity), or the mats were placed and cleaned by a contractor, or as in this case the parking lot is not the store’s responsibiilty.    The solution, unfortunately, is “fast filing with fast followup” since delay and deny and do nothing by the defendant does not inure a benefit to the plaintiff.

Some useful techniques for getting around this improperly denominated party defendant are:  correcting a misnomer “, and CR 15.03 involving relation back of amendments (eg., nexus between corporations and/or subsidiaries and the relating back (An amended pleading that changes or adds defendants only relates back to the filing of the original pleading when (1) the claim in the amended complaint arose out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the new party received notice of the institution of the action so that he will not be prejudiced in asserting his defense; and (3) the new party knows or should have known that without the mistake concerning identity, the action would have been brought against him. CR 15.03. party relates back.”  Within this context, I would have suspected that Krogers would have notified it lessor of the lawsuit (and thus notice under 15.03(2)(a) who would have know from the filing of the original complaint that they/shopping center would have been the proper party.

However, these outs are not an adequate solution to what I believe are the real problems: a. who they are may not be who you think they are with a name hidden in corporate names, agreements; and b. the insurer/insured may not be forthright about the correct identity of the responsible party (delay has its benefits, especially as the statute’s expiration approaches; and c. the  one-year is just too darn short when you have ten years for written contracts with the defendant usually self-evident, but with defective products made in China and distributed under other’s names).

The solution? Some are file soon, notice the corporate-representative for his/her deposition per CR 30.02(6).  The better solution is a longer statute of limitations with an easier tolling/relation back doctrine to avoid hide the ball and to allow the potential of resolving these cases short of suit.  One year.  Seriously!

For other posts on this blog about the statute of limitations, click here.

Case Notes: Looking at Res Ipsa Loquitur and Breach of Duty in the context of a one-car collision – Gilbert v. U-Haul (COA NPO 1/9/2015)

Photo is for blogging purposes and is NOT a photo involving this collision.  Photo from Depositphotos.com.

Photo is for blogging purposes and is NOT a photo involving this collision. Photo from Depositphotos.com.

It would be so much easier to prevail in personal injury cases if we did not have to worry about evidence to show duty and breach.  Negligence is usually not that difficult.  Oftentimes, we think that res ipsa loquitur may prove to be our salvation.  Bleachers just don’t fall unless someone did something wrong,  or a scalpel is left in following surgery.

Res ipsa Loquitur and breach of duty take center stage in this nonpublished decision from the Scott Circuit Court – Peggy Gilbert vs. U-Haul International Inc., Judd Road Storage and U-Haul and Thomas Gilbert, COA, NPO, 1/9/2015 which affirmed the trial court Judge Robert Johnson’s granting of summary judgment dismissing her claims against her husband.

This case will show that res ipsa loquitur (aka res ipsa) is not an easy solution for problems of proof of negligence (duty and breach).

A little background on how this case ended up with a dismissal of the wife’s claims against her husband.  Well, it was a single vehicle collision, with husband driving a truck with a U-Haul attached.  After filing suit, Peggy’s claims against the two U-Haul defendants settled, leaving the claim against Tom Gilbert, Peggy’s husband.

The hurdle was that Peggy had previously testified  in her deposition that she did not observe Tom driving incorrectly or inappropriately.  Now, she is trying to collect some money from her husband, or should I say, her husband’s liability insurance policy, but unable to offer her own evidence or observations on negligence what is she going to do?

The trial court gave her four months to obtain additional evidence, and the only thing she had was an affidavit from an accident reconstructionist that after reviewing the records who opined that the only way this accident could have been caused by was by error on the part of Tom, U-Haul, or both.

I present this case as a case note to demonstrate the issues that develop when you have a claim against your spouse and can’t give any evidence that your spouse was negligent other than res ipsa loquitur, aka “the think speaks for itself”.  We often bandy about the doctrine in a short-hand manner thinking its common sense approach will fill in the blanks.  However, it’s not that easy as this case details.  Briefly, it is a doctrine that states that the elements of duty of care and breach can sometimes be inferred from the very nature of an accident or other outcome, even without direct evidence of how any defendant behaved.

For more detailed analysis, then “continue reading” below.

Cause of Action: Retail Store (Wal-Mart) Owed No Duty to Patrons of store when altercation occurs Rose vs. Wal-Mart COA Not Published 9/12/2014; PJ Combs Affirming Held Wal-Mart had no duty either to prevent or to intervene in a physical altercation involving several of its patrons (Rose v. Wal-Mart, COA, NPO 9/12/2014)

Torts.  Duty Owed to Patrons of store when altercation occurs
Rose vs. Wal-Mart
COA Not Published 9/12/2014; PJ Combs Affirming
Held Wal-Mart had no duty either to prevent or to intervene in a physical altercation involving several of its patrons under facts of this case.

Cause of Action: Premises Liability Open and Obvious Hazard Distinguished by COA for licensee (as opposed to invitee) (Klinglesmith vs. Estate of Reba Pottinger, COA, NPO 9/12/2014)

Klinglesmith vs. Esate of Reba Pottinger
Premises Liability.  Slip and Fall.  Licensee treated differently on open and obvious.
COA Not Published 9/12/2014; PJ Stumbo Affirming

[Although the issue of plaintiff’s failure to offer proof of causation was the basis to the lower court’s summary judgment and the Court of Appeals’ affirmance of the dismissal, Judge Stumbo in her opinion addressed a distinction on how open and obvious interplays with the landowner’s duties to an invitee (as in Shelton and McIntosh vs. a licensee in Klinglesmith.  This is why the case is noted under the topic causes of action.]

STUMBO, JUDGE: Stella Klinglesmith appeals from an Order of the Jefferson Circuit Court dismissing via Summary Judgment her personal injury action against the Estate of Reba Pottinger. Klinglesmith contends that the court erred in concluding that the open and notorious doctrine barred her recovery, and that she would be unable to demonstrate causation if the matter proceeded to trial.

As a basis for the Order granting Summary Judgment, the Court noted that Klinglesmith testified in her deposition that she did not observe any defect in the porch and was not sure why she fell. After discussing Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), and the exception to the open and obvious doctrine, the Court determined that Klinglesmith had over a year since the filing of this action to conduct discovery, and had not established that the condition of the porch was a substantial factor in causing her injury. The Court rendered Summary Judgment, and this appeal followed.

Klinglesmith contends that under Shelton, an open and obvious condition does not eliminate a landowner’s general duty to maintain premises in reasonably safe condition or the duty to warn of or eliminate unreasonably dangerous conditions, but, rather, is factor in determining whether landowner fulfilled his or her duty of care. Klinglesmith appears to contend that the Jefferson Circuit Court erred in absolving the Estate of liability because the defect in the

The parties agree and the record so demonstrates that Klinglesmith was a licensee when she entered upon the parcel then owned by Pottinger. She cannot properly be characterized as an invitee in that she was not connected with the owner’s business (as there was no business) nor did Klinglesmith engage in an activity of the type that the owner conducts or permits to be conducted on his land.

Cause of Action. Kentucky is not a “direct action” state. Insurance company not proper defendant in wrongful death claim resulting in dismissal withOUT prejudice (Estate of Moore vs. Kentucky Farm Bureau Mutual Ins. Co. COA, NPO 2/21/2014)

Estate of Moore vs. Kentucky Farm Bureau Mutual Ins. Co
COA, NPO 2/21/2014 PJ Caperton Affirming in Part, Reversing in Part, and Remanding
Allen County
Affirmed dismissal of wrongful death claim (but without prejudice) asserted against insurer rather than insureds.

Dr. Ephraim McDowell, Danville,Kentucky marker in front of his home. Picture of home next post.

Dr. Ephraim McDowell, Danville,Kentucky marker in front of his home. Picture of home next post.

CAPERTON, JUDGE: The Appellant, Dovie Moore, Administrator of the Estate of Peyton Spencer Green (hereinafter “Moore”), appeals the February 5, 2013, order of the Allen County Circuit Court, dismissing her wrongful death claimagainst the Appellee, Kentucky Farm Bureau Mutual Insurance Company (hereinafter “Farm Bureau”). Upon review of the record, the arguments of the parties, and the applicable law, we affirm. However, because we also conclude that the dismissal should be without prejudice, we reverse that portion of the order and remand for entry of an order dismissing without prejudice.

DEFENSES: No bad faith when no underlying insurance policy (Murphy vs. Travelers, COA NPO 1/17/2014)

Insurance. Torts. Unfair Claims Settlement Practices Act. 
Murphy  vs. Travelers Cas. and Surety Co.
COA, NPO 1/17/2014
Here the COA stated the obvious and affirmed the dismissal of a claim of violation of the Unfair Claims Settlement Practices Act because the underlying insurance policy had lapsed and was not in force at the time of the alleged conduct.  Or as stated much better than I

The courts of this Commonwealth have continually held that absent a contractual obligation, i.e., an insurance policy, there can be no bad faith cause of action and no violation of the UCSPA. See Davidson v. American Freightways, Inc., 25 S.W.3d 94 (Ky. 2000); Wittmer v. Jones, 864 S.W.2d 885 (Ky. 1993); Kentucky Nat. Ins. Co. v. Shaffer, 155 S.W.3d 738 (Ky. App. 2004). We are bound by those decisions.

CAUSES of ACTION: Legal Negligence and “Suit within a suit” resolution of underlying premises liability claim moots legal negligence suit (Freeman vs. Becker Law Office)

Legal Malpractice, Premises Liability and “Suit Within a Suit”

Tonia Freeman vs. Becker Law Office, Kevin Renfro, Bubalo Heistand & Rotman, and Dianne E. Sonne
COA, Not Published 1/10/20014

This is a legal malpractice claim against a private organization operating from a government building at Fort Knox which was treated as a “suit within a suit”. After a jury rendered a verdict that the private organization (Toys for Tots) was not in possession of the premises where Tonia Freeman was an employee and received her injuries on a slip and fall, the legal negligence claim premised upon the premises liability basically went away.

DEFENSES: Application of collateral estoppel as defense to legal malpractice and fraud claims (Simpson vs. Chesley, COA NPO 11/27/2013

Legal Malpractice, Breach of fiduciary duty and fraud. Defense of collateral estoppel.
Simpson vs. Stanley M. Chesley
Kenton;  Judge Gregory Bartlett
Affirming
COA, Not Published 11/27/2013

VANMETER, JUDGE: Appellants1 appeal from a Kenton Circuit Court order granting Appellees’ motion for summary judgment and dismissing Appellants’ claims of breach of fiduciary duty, professional negligence (legal malpractice), and fraud. We agree with the circuit court that Appellants’ claims are barred by the doctrine of collateral estoppel, and affirm its order.

Wilma Jean Shelton vs. Kentucky Easter Seals Society, Inc., 2011-SC-000554-DG, SC, Published 11/22/2013 – Open and Obvious Doctrine Buried

slipandfallA 4-3 decision announced this past week and authored by Chief Justice Minton should end nearly three years of parsing and quibbling over their earlier decision in Kentucky River Medical Center v. McIntosh,  319 S.W.3d 385 (Ky. 2010) which by many accounts marked the demise of the “open and obvious” doctrine in premises liability cases.  Well, “open and obvious” is gone, gone, gone, and its eulogy recognized in Justice Scott’s dissent in the following case.

The Supreme Court’s decision in Wilma Jean Shelton vs. Kentucky Easter Seals Society, Inc.2011-SC-000554-DG, should serve as a landmark in Kentucky jurisprudence not only on the limited issue presented in premises liability law but on the  historical power of the common law of the Commonwealth as a bulwark in the protection of the public’s right to be secure and safe and the duty of care owed to others and to  yourself. More importantly (and I may well be alone on this), but I see this decision also as a Magna Carta moment for Chief Justice Minton and the current court on our historical and constitutional right to a civil jury trial – a right that seems to have eroded in the wake of summary judgment expansion and the convenience of the courts to handle a docket of cases growing in complexity and number.

Let us not forget the judiciary is a separate and equal branch of our government.  And that the common law and the right to a jury trial in civil cases are part and parcel of the judiciary’s power.  The right to an independent jury goes back to the Trial of William Penn (aka Bushell’s Case) in 1670 and was echoed in the Trial of John Peter Zenger, and the authority of the common law stood as a check on the Crown.

 

As Chief Justice Minton noted in the last paragraph of his opinion:

We reverse the Court of Appeals and remand the case for further proceedings because Cardinal Hill had a duty to Shelton and there remains a question of material fact whether that duty was breached or not. The approach we embrace in this opinion brings Kentucky even further into the modern era of tort law and takes one more step in our journey toward a fairer system less burdened by vestiges of contributory negligence. We may walk slowly in the law, but we should never walk backward. 65 Perpetuating the confusion engendered by the open-and-obvious doctrine would be a step backward. 

Although I applaud this decision for looking forward and not retrenching from Justice Noble’s opinion written in McIntosh, I cannot help but feel sorrow for those claimants who  met the “resistance” and ultimately were denied compensation or at least a chance to be heard on their claims following the remand of their cases the post-McIntosh remands but before Shelton.

Here is a brief summary of Wilma Jean Shelton vs. Kentucky Easter Seals Society, Inc.: