COA 2011 Minutes for July 8, 2011 — Nos. 647-663 (17 decisions; 5 published)

COA 2011 Minutes for July 8, 2011 —  Nos. 647-663 (17 decisions; 5 published)

654.  Government retirement disability benefits.
KENTUCKY RETIREMENT SYSTEMS
VS.
LOWE (SHEILA)
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
VANMETER (CONCURS) AND SHAKE (CONCURS)
2010-CA-000835-MR
TO BE PUBLISHED
FRANKLIN

WINE, JUDGE: The Kentucky Retirement Systems (“the Retirement System”) appeals from an opinion and order of the Franklin Circuit Court overruling the decision of the Kentucky Retirement Systems Medical Review Board (“the Board”) and directing that benefits be awarded to the claimant and appellee herein, Sheila Lowe (“Lowe”). Upon a review of the record, we affirm.

Regardless, we note that it would appear by overwhelming evidence that Lowe was disabled from her previous occupation, such fact being supported by the unanimous opinions of four treating physicians and one psychologist. As the Board erred as a matter of law in concluding that Lowe failed to present “objective medical evidence” to establish her disability, we affirm the Franklin Circuit Court.

657. PRISONS. DISCIPLINE.
THOMAS (ONTARIO)
VS.
HANEY (STEVE), ET AL.
OPINION REVERSING AND REMANDING
MOORE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND STUMBO (CONCURS)
2010-CA-001026-MR
TO BE PUBLISHED
LYON

MOORE, JUDGE: Ontario Thomas, proceeding pro se, appeals the Lyon Circuit Court’s order dismissing his Petition for Declaration of Rights. After a careful review of the record, we reverse because there is no evidence supporting the disciplinary charge against Thomas. We accordingly reverse and remand for further proceedings.

 

658.  FAMILY LAW. INVOLUNTARY TERMINATION OF PARENTAL RIGHTS.
D. (D. J.)
VS.
CABINET FOR HEALTH AND FAMILY SERVICES, ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
STUMBO (CONCURS) AND SHAKE (CONCURS)
2010-CA-001184-ME
TO BE PUBLISHED
JEFFERSON

THOMPSON, JUDGE: D.J.D., mother, appeals from the Jefferson Family Court’s order involuntarily terminating her parental rights to her minor son, M.G.P. For the reasons stated, we affirm.

662.  Criminal Law.
JACKSON (DAVID)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
COMBS (CONCURS) AND SHAKE (CONCURS)
2010-CA-001450-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: David Jackson appeals from a judgment imposing a twelve- year sentence for a conviction of first-degree rape, first-degree wanton endangerment, and illegal possession of drug paraphernalia. After careful review, we affirm.

STD OF REVIEW:  "Both the Commonwealth and Jackson correctly point out that the standard of review for a trial court’s evidentiary rulings is for an abuse of discretion. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). An evidentiary ruling will only be overturned by this Court where “the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id. at 581."

663. WORKERS' COMP
AUDI OF LEXINGTON
VS.
ELAM (COLIN), ET AL.
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
THOMPSON (CONCURS) AND VANMETER (CONCURS)
2010-CA-002038-WC
TO BE PUBLISHED

COMBS, JUDGE:    Audi of Lexington appeals from the decision of the Workers’ Compensation Board that vacated in part and remanded this matter to the Administrative Law Judge (ALJ). The Board directed the ALJ to enter an order awarding benefits consistent with a permanent, partial disability rating substantially higher than the rating originally assigned by the ALJ. Following our review, we affirm the decision of the Board.

In this case, we agree with the Board that the ALJ was not at liberty to assume from Dr. Kriss’s analysis that the portion of Elam’s permanent impairment rating attributable to his pre-existing impairment progressed at a rate commensurate with that portion of his impairment attributable to the work-related injury. There was simply no medical testimony to support the ALJ’s inference that Dr. Kriss’s ratio of 5:8 would continue unaltered when Elam’s over-all impairment climbed to 21%. No expert medical testimony supports Audi’s hypothesis that the Board’s calculation grossly underestimated the impact of Elam’s pre-existing, active impairment in contributing to the need for the surgery upon which his ultimate impairment was based.

The Board did not overlook or misconstrue controlling statutes or precedent in concluding that the ALJ’s calculation was erroneous. Subtracting Elam’s pre- existing, active impairment rating of 5% from his overall impairment rating of 21% following the work-related accident, the Board properly determined that Elam should have been awarded permanent, partial disability benefits based upon an impairment rating of 16%.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

• WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
• FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com

651.  Insurance.  Exclusions.  Policy interpretation.
OLSON (DONALD)
VS.
ALLSTATE INSURANCE COMPANY
OPINION AFFIRMING
SHAKE (PRESIDING JUDGE)
STUMBO (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000612-MR
NOT TO BE PUBLISHED
JEFFERSON

SHAKE, SENIOR JUDGE: Donald Olson appeals from the March 25, 2010, summary judgment of the Jefferson Circuit Court. That judgment dismissed Olson’s complaint against Allstate Insurance Company (“Allstate”) for its denial of Olson’s claim of damage caused when his above-ground swimming pool ruptured.  We find no error with the trial court’s grant of summary judgment and therefore affirm.

653
THOMPSON (BETH A.)
VS.
ASHLAND HOSPITAL CORPORATION
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
LAMBERT (CONCURS) AND ACREE (CONCURS AND FILES SEPARATE OPINION)
2010-CA-000801-MR
NOT TO BE PUBLISHED
BOYD

STUMBO, JUDGE: Beth A. Thompson (“Ms. Thompson”) appeals from an order of the Boyd Circuit Court granting summary judgment in favor of Ashland Hospital Corporation d/b/a/ King’s Daughters Medical Center (“KDMC”). Ms. Thompson sued KDMC after her father fell off a table and was injured as he was about to receive an x-ray. Thompson contends that the trial court erred in concluding that her failure to provide expert testimony on the issues of standard of care and causation was fatal to her claim. We conclude that because Ms. Thompson is prosecuting a claim of ordinary negligence rather than complex medical negligence, the trial court erred in determining that expert testimony was required to instruct the jury on KDMC’s standard of care and its alleged breach of that standard. Accordingly, we reverse the summary judgment on appeal and remand the matter for further proceedings.

In order to prevail in a negligence action in Kentucky, a plaintiff must offer proof that the defendant owed the plaintiff a duty of care, which the defendant breached that duty, and that injury proximately resulted from the breach.
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Pathways, Inc. v. Hammons, 113 S.W. 3d 85 (Ky. 2003). In a medical negligence action, the plaintiff must prove that the treatment given was below the degree of care and skill expected of a reasonably competent practitioner, and that the negligence proximately caused injury or death. Reams v. Stutler, 642 S.W. 2d 586 (Ky. 1982). As a rule, the complexity of medical procedures requires a medical negligence plaintiff to rely on expert testimony rather than lay testimony to establish duty, breach, causation and injury. Blankenship v. Collier, 302 S.W.3d 665 (Ky. 2010). Conversely, ordinary or simple negligence actions do not require expert testimony. Id. The test for distinguishing between medical negligence and ordinary or simple negligence is “. . . whether the case involves a matter of science or art requiring special knowledge or skill not ordinarily possessed by the average person or is one where the common everyday experiences of the trier of the
facts . . . are sufficient in order to reach the proper conclusion. In the former, expert opinion testimony is ordinarily required to aid the trier of the facts; in the latter it is unnecessary.” Andrew v. Begley, 203 S.W.3d 165 (Ky. App. 2006), quoting Twitchell v. MacKay, 78 A.D.2d 125, 127-128 (N.Y.A.D.1980).
The question for our consideration, then, is whether the facts surrounding Mr. Thompson’s fall involve a matter of science or art requiring special knowledge or skill not ordinarily possessed by the average person, or conversely whether the common everyday experiences of a jury are sufficient in order to reach the proper conclusion. Andrew, supra. Having closely considered the entire record, we cannot conclude that an average person would be unable to
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discern without the benefit of expert testimony why Mr. Thompson fell off the table, nor why the fall allegedly resulted in injury. The facts of this action are more akin to a routine “slip and fall” negligence action than a medical malpractice action involving complex and sophisticated medical procedures which are outside the knowledge or skill ordinarily possessed by the average person. That is to say, whereas an average person will not possess the knowledge or skill required to consider the complexities of sophisticated medical procedures, such a person’s “common everyday experiences” will allow him or her to determine why an allegedly sick, semi-comatose individual fell off a table. Additionally, Ms. Thompson, through counsel, repeatedly alleged in her complaint that KDMC engaged in ordinary negligence rather than medical negligence. While her usage of this language is by no means controlling, it does bolster her assertion that the instant action has from the outset been about KDMC’s alleged ordinary negligence rather than medical negligence. Finally, we cannot conclude that every alleged act of negligence occurring in a hospital setting must be characterized as medical negligence. The determination of whether the alleged negligence is ordinary negligence or medical negligence is fact-based, and the facts now before us do not compel us to conclude that the trier of fact would be unable to reach a proper conclusion absent hearing expert testimony.

When viewing the record in a light most favorable to Ms. Thompson and resolving all doubts in her favor, we cannot conclude that it appears impossible for Ms. Thompson to prevail at trial. The fact that Ms. Thompson’s counsel inexplicably failed to meet two discovery deadlines or file a responsive pleading to KDMC’s motion for summary judgment does not alter this conclusion. Ultimately, the dispositive questions are whether the trier of fact would be unable to consider the issues presented without the benefit of expert testimony, and whether it appears impossible that Ms. Thompson could prevail at trial absent such testimony. We must answer these questions in the negative, and accordingly conclude that summary judgment was not warranted.