COA 2010 Minutes July 16, 2010 (Nos. 673-701)

COA 2010 Minutes July
16,
2010 (Nos. 673-701)

  • Above link to minutes is full text of minutes with link to full
    text
    of each decision.
  • Total number of decisions:  29
  • Published Decisions:  9 (673, 677, 683, 684, 685, 686, 692, 692, 698)

PUBLISHED DECISIONS WITH SHORT SYNOPSIS AND LINK TO FULL TEXT OF
EACH:

673. MEDICAL NEGLIGENCE; EMTLA
THOMAS (LARRY O'NEIL) VS. ST. JOSEPH HEALTHCARE, INC.
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING IN PART
WINE (PRESIDING JUDGE) CLAYTON (CONCURS) AND DIXON (CONCURS)
2007-CA-001192-MR
2007-CA-001244-MR
TO BE PUBLISHED
FAYETTE

WINE, JUDGE: In our prior opinion, we set out the facts of this case as follows: The parties vigorously disagree about the facts of this case. However, they agree that James Milford Gray, age 39, arrived at the emergency room of St. Joseph Hospital (“the Hospital”) on April 8, 1999, at 8:08 p.m. He was complaining of abdominal pain, constipation for four days, nausea and vomiting. He was seen by physician’s assistant Julia Adkins and Dr. Barry Parsley. He received medication for pain and later received an enema and manual disimpaction of his colon. Although lab tests were ordered, either Gray refused to cooperate, or upon reorder, they were never conducted. Likewise, no x-rays were conducted.

Gray was discharged at 12:40 a.m. on April 9, 1999. He was taken by ambulance to the homes of different family members with whom he had previously stayed. However, no family member agreed to provide a place to stay, so he was returned to the Hospital. Upon his return to the emergency room, the Hospital made arrangements for Gray to stay at the nearby Kentucky Inn. * * *

The Hospital also points to the language in Martin which emphasized that damages are available under EMTALA only when the personal harm is the direct result of the hospital’s violation of the statute, not by any harm caused by the medical negligence of personnel or the hospital. Martin, supra, at 114-15. We disagree with the Hospital’s argument interpreting this language to mean that claims under EMTALA and medical negligence are mutually exclusive. The Court in Martin noted that proof of damages was the same under all of the plaintiff’s theories. Since the Court found that the hospital had met its duties under EMTALA, the Court concluded the estate’s damages sounded only in negligence. Id. at 115.
Nevertheless, a failure to provide stabilization of an emergency medical condition may amount to a violation of EMTALA and medical negligence. See Cleland, supra, at 270 (6th Cir. 1990). To a certain extent, the damages may overlap. Ideally, the instructions should require the jury to set out which damages Are attributable to the EMTALA violation and which damages are attributable to the medical negligence claim. Likewise, the Hospital may have been entitled to somewhat different instructions on the EMTALA claim based upon the analysis in Martin. However, the Hospital has not requested a new trial, only a finding that it was entitled to a directed verdict on the EMTALA claims. Since we have found that the Hospital was not entitled to a directed verdict on the EMTALA claims in light of Martin, we need not address additional remedies which the Hospital has not requested.

Since we conclude that the Supreme Court’s opinion does not affect the Estate’s judgment and award of compensatory damages on the EMTALA claim, we need not address the other issues raised in our prior opinion. Rather, we will simply adopt those portions of our prior opinion relating to the trial issues, the award of unliquidated damages, and the award of punitive damages. We also restate our prior conclusion that this matter must be remanded for a new trial on punitive damages.

Accordingly, the judgment of the Fayette Circuit Court is affirmed in all respects except for the award of punitive damages. While we affirm the trial court’s order granting a new trial on the issue of punitive damages, we also find that the Hospital was entitled to instructions properly setting out the law as to ratification and the standard of proof. Therefore, we remand this matter for a new trial in accord with this Court’s prior opinion.

677. CRIMINAL PROCEDURE. CUSTODIAL INTERROGATION.
CARLISLE (LANN D.) VS. COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
ACREE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND HARRIS (CONCURS)(SENIOR STATUS JUDGE)
2008-CA-001531-MR
TO BE PUBLISHED
HENDERSON

ACREE, JUDGE: Lann D. Carlisle appeals the Henderson Circuit Court’s denial of his motion to suppress his confession given during a custodial interrogation. Because we find that the police officers involved did not scrupulously honor Carlisle’s invocation of his right to remain silent, we reverse and remand for additional proceedings.

683. PROFESSIONAL NEGLIGENCE. EXPERTS.
CELINA MUTUAL INSURANCE COMPANY VS. HARBOR INSURANCE AGENCY, LLC , ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
BUCKINGHAM (CONCURS) AND CAPERTON (DISSENTS AND FILES SEPARATE OPINION)
2009-CA-000790-MR
TO BE PUBLISHED
TRIGG

CLAYTON, JUDGE: The Appellant, Celina Mutual Insurance Company, appeals from two orders of the Trigg Circuit Court granting summary judgment in favor of Harbor Insurance Agency and William Kearney (hereinafter the “Appellees”). In the first summary judgment order, the trial court ruled that Appellant’s negligence action required expert testimony to establish the professional duties of an insurance agent. The trial court granted summary judgment in favor of Appellees on Appellant’s negligence claims given that all discovery had been completed, that the time had expired for all expert and trial witness disclosures, and that Appellant did not have an expert witness.

In the second summary judgment order, the trial court ruled that Appellant’s indemnity claims must fail as a matter of law and granted summary judgment in favor of Appellees. In this second summary judgment order, the trial court also dismissed Appellant’s complaint, finding that it had disposed of all of Appellant’s claims. Appellant argues that the trial court wrongfully granted summary judgment in both orders; Appellees disagree. After a thorough review of the record, the parties’ arguments, and the applicable law, we find that the trial court did not abuse its discretion in finding that an expert witness was necessary to establish an insurance agent’s professional duty, or in its determination that Appellant’s indemnity claims must fail as a matter of law, or in dismissing Appellant’s complaint because all of Appellant’s claims had been addressed. Thus, we affirm the trial court.

684. CRIMINAL.  RCR 11.42. INEFFECTIVE ASSISTANCE OF COUNSEL
POLLINI (JASPER) VS. COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
COMBS (CONCURS) AND KELLER (CONCURS)
2009-CA-000964-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: Jasper Pollini appeals from the Jefferson Circuit Court’s denial of his post-conviction motion for a new trial under Kentucky Rule of Criminal Procedure (RCr) 11.42. Pollini claims that his trial counsel rendered ineffective assistance of counsel; or at the very least, he was entitled to a hearing in which to more fully present his claims. Upon careful review, we affirm.

685.  PROPERTY; MECHANICS LIEN; PERFECTING.
BROWN SPRINKLER CORPORATION VS. SOMERSET- PULASKI COUNTY DEVELOPMENT FOUNDATION, INC. , ET AL.
OPINION REVERSING AND REMANDING
KELLER (PRESIDING JUDGE)
CLAYTON (CONCURS) AND BUCKINGHAM (CONCURS)
2009-CA-001185-MR
TO BE PUBLISHED
PULASKI

KELLER, JUDGE: Brown Sprinkler Corporation (Brown) appeals from the circuit court’s summary judgment in favor of Somerset-Pulaski County Development Foundation, Inc. (the Foundation). On appeal, Brown argues that the trial court erred when it determined Brown was foreclosed from pursuing an e
quitable remedy because it negligently failed to perfect a mechanics’ lien. Having reviewed the record and the arguments of the parties, we reverse and remand.

686. CHILD SUPPORT. CONTEMPT (FAILURE TO PAY).
IVY (NOW KNIGHTEN) (RENEE) VS. COMMONWEALTH OF KENTUCKY , ET AL.
OPINION REVERSING
LAMBERT (PRESIDING JUDGE)
STUMBO (CONCURS) AND CAPERTON (DISSENTS AND FILES SEPARATE OPINION)
2009-CA-001279-ME
TO BE PUBLISHED
MCCRACKEN

LAMBERT, JUDGE: Renee Ivy (now Knighten) appeals from an order of the McCracken Family Court holding her in contempt and ordering her to pay child support or be jailed for thirty days. After careful review, we reverse.

692. CHILD SUPPORT. MODIFICATION.
CABINET FOR HEALTH AND FAMILY SERVICES , ET AL. VS. BOWMAN (ORVILLE)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
COMBS (CONCURS) AND KELLER (CONCURS)
2009-CA-001830-ME
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: The Cabinet for Health and Family Services and Wendy Tipton (formerly Bowman) appeal from the Jefferson Circuit Court’s order denying a motion to modify child support. After careful review, we affirm.

695. GRANDPARENT VISITATION
GRAYSON (STEPHANIE), ET AL. VS. GRAYSON (JUNE)
OPINION REVERSING
LAMBERT (PRESIDING JUDGE)(SENIOR STATUS JUDGE)
DIXON (CONCURS) AND VANMETER (CONCURS)
2009-CA-001963-ME
TO BE PUBLISHED
MASON

LAMBERT, SENIOR JUDGE: Stephanie Grayson and Shane Grayson are husband and wife and the parents of S1 Grayson, a minor female, and S2 Grayson, a minor female. They appeal to this Court from the September 28, 2009, findings of fact, conclusions of law, and amended judgment of the Mason Circuit Court. That judgment granted Appellee June Grayson, paternal grandmother of S1 and S2 Grayson, limited grandparent visitation with the children over the vehement objection of the children’s parents, Appellants herein. Upon our determination that the trial court erred in its conclusion and judgment that grandparent visitation was in the children’s best interest, we reverse.

698. CHILD CUSTODY. PRIMARY.
KELSAY (MARK) VS. CARSON (TRACIE)
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
THOMPSON (CONCURS) AND WHITE (CONCURS)
2009-CA-002175-ME
TO BE PUBLISHED
BOYLE

MOORE, JUDGE: Mark Kelsay appeals from an order of the Boyle Family Court, which made Tracie Carson the primary residential custodian over the parties’ minor child. After careful review of the record, we affirm.

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