COA: September 11, 2015 Court of Appeals Decisions (Minutes) (763-778) 16 decisions; 4 published)

Appeal of order denying motion to set aside did not meet exception for interlocutory orders; child custody termination hearing requires evidence, parties in attendance, and finding complying with KTS 403.270(2); plaintiff offered evidence of probable asbestos exposure was sufficient showing of causation to reverse summary judgement dismissing claim; Medical malpractice claim addressing informed consent, MRSA infection, and continuing treatment and discovery for statute of limitations addressed within context of harm vs. injury - summary judgment in favor of doctor reversed in part.

Published Court of Appeals appellate cases for  this week –
September11, 2015:  
 Links are to full text of PDF decision with AOC.

769.  Revenue and taxation.  Ad valorem taxation applies with planning commission not yet dissolved by statute.
Garth Kuhnhein vs. Northern Kentucky Area Planning Commission
COA Published (PUB) Opinion.  Affirming.  Kenton County.

THOMPSON, JUDGE: Garth Kuhnhein, a resident of Kenton County, filed a class action complaint for a declaratory judgment declaring the assessment and collection of ad valorem taxes by the Northern Kentucky Area Planning Commission and the Northern Kentucky Area Planning Council (collectively NKAPC) is invalid because it no longer meets the requirements of an area planning commission as defined in Kentucky Revised Statutes (KRS) 147.610 and alleging the conversion of funds collected by the NKAPC. The Kenton Circuit Court granted summary judgment to the NKAPC ruling that the NKAPC is a viable legal political subdivision. After considering the parties’ arguments and the applicable law, we affirm because the NKAPC has not been dissolved pursuant to statute.

771.  Appeal.  COA dismissed appeal as motion denying order to set aside judgment was not final and appealable (interlocutory).  Exception not apply.
Black Forest Coal, LLC vs. GRC Development LLC
COA PUB Opinion. Affirming. Pike County.

TAYLOR, JUDGE: Black Forest Coal, LLC (Black Forest) brings this appeal from a March 13, 2014, judgment of the Pike Circuit Court granting Mountain Processing, Inc. (Mountain Processing) and GRC Development, LLC’s (GRC) Kentucky Rules of Civil Procedure (CR) 60.02 motion to vacate an order dismissing the action. We dismiss as this appeal is taken from an interlocutory order.

Black Forest acknowledges the general rule that an order granting a CR 60.02 motion to set aside a judgment is nonappealable but argues that an exception announced in Asset Acceptance, LLC v. Moberly, 241 S.W.3d 329 (Ky. 2007) is applicable herein. We disagree.

In this Commonwealth, the general rule is “that an order setting aside a judgment and reopening the case for trial is not final or appealable.” Asset Acceptance, 241 S.W.3d at 332. The only exception to this general rule was set forth in Asset Acceptance and is applicable where: (1) the “disrupted” judgment is more than one year old, and (2) the reason offered by the circuit court is an “extraordinary circumstance” under CR 60.02(f). Asset Acceptance, 241 S.W.3d at 334.

773.  Family Law.  Affirmed termination of parental rights.
Commonwealth of Kentucky vs. Mark A. Alberhasky
COA PUB Opinion.  Reversing and remanding.  Jefferson County.

TAYLOR, JUDGE: E.C. brings this appeal from an August 1, 2014, order and judgment of the Anderson Circuit Court, Family Court Division, (family court) terminating his parental rights as to C.E.-L.N. (hereinafter referred to as “C.N.”) We affirm.

We have thoroughly reviewed the record and conclude that sufficient evidence supports the family court’s decision to involuntarily terminate E.C.’s parental rights. The family court rendered detailed findings of fact which we incorporate herein by reference and the court otherwise complied with the relevant statutory mandates for involuntarily terminating E.C.’s parental rights. From the record before this Court, we can find no legal ground or reason to set aside the family court’s judgment. In short, we agree with counsel that no valid basis exists to warrant relief from this Court. See A.C., 362 S.W.3d 361. Accordingly, we conclude that the family court did not commit reversible error in the involuntary termination of E.C.’s parental rights.

775.  Child Custody Hearing.  Full evidentiary hearing with both sides in attendance, and findings entered per KRS 403.270(2) required.
A.(S.E.)  vs. G.(R.J.)
COA PUB Opinion.  Vacating and Remanding.  Fayette County.

JONES, JUDGE: This is a child custody action arising out Fayette Family Court. The family court awarded permanent sole custody to the Appellee, R.J.G. (“Father”). The Appellant, S.E.A. (“Mother”), argues that the trial court erred because it did not conduct an evidentiary hearing and based its factual findings almost exclusively on a written report filed by the guardian ad litem (“GAL”) whom Mother was never allowed to question.

Upon review, we conclude that the trial court should have conducted an evidentiary hearing at which both parties were provided an opportunity to present testimony. Moreover, the trial court’s reliance on the GAL’s report was improper as explained by our Supreme Court in Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014). Accordingly, we VACATE the trial court’s orders and REMAND with instructions to conduct a full evidentiary hearing and make findings pursuant to KRS1 403.270(2) based on the evidence presented.

Selected Court of Appeal’s “not to be published” decisions on Trials, torts, insurance and civil procedure from September 11, 2015.  Links are to full text of decision in PDF at AOC.

765.  Summary Judgment.  Dispute existed of genuine issues of material fact on causation of injuries.  Plaintiff presented lay and expert evidence of probable and not just possible asbestos exposure.
Thelma Anderson (Adm’x of Est. of Kenneth Anderson) vs. Motorola Solutions, Inc.
COA NonPublished Opinion (NPO).  Reversing and remanding.  Campbell County

JONES, JUDGE: This appeal arises out of the Campbell Circuit Court’s orders granting summary judgment in favor of Motorola Solutions, Inc. (“Motorola”) and Zenith Electronics, LLC (“Zenith”). Appellant, Thelma B. Anderson, as administratrix of the estate of Kenneth Anderson, asserts that neither Motorola nor Zenith was entitled to judgment as a matter of law. Zenith and Motorola argue otherwise. Specifically, the Appellees maintain that summary judgment was proper because Appellant failed to prove that Kenneth was exposed to asbestos from any of their products during his career as a radio repairman, or, that if such exposure occurred, it was a substantial factor in his death from mesothelioma.

COA concluded that the circuit court erred in granting summary judgment to Zenith and Motorola. We believe that Appellant produced enough evidence in the form of lay and expert testimony to make it probable, as opposed to merely possible, that Kenneth was exposed to asbestos from radios manufactured by Zenith and Motorola and that such exposure was a substantial factor in his death. Therefore, we believe that in this case, the issue of causation is one that should be made by a jury instead of a judge on summary judgment. Accordingly, we REVERSE and REMAND.

766.  Statute of limitations.  Medical negligence and informed consent.  Continuing treatment and tolling and discovery plus “harm” vs. “injury” addressed.
Dennis Stallins vs Carl Hinton
COA NPO.  Affirming in part, reversing in part, and remanding.  Caldwell County

JONES, JUDGE: This appeal requires us to consider whether the Caldwell Circuit Court properly dismissed Dennis Stallins’s medical malpractice claims against Dr. Carl Hinton as time-barred. Having reviewed the record, we conclude that the circuit court erred when it determined that Stallins’s entire complaint was time- barred. While we agree with the circuit court that the portion of Stallins’s complaint alleging that Dr. Hinton breached the standard of care by exceeding the scope of Stallins’s consent was time-barred, we do not agree that the remainder of Stallins’s complaint was also time-barred. Accordingly, for the reasons more fully explained below, we affirm in part, reverse in part, and remand.

An action for medical malpractice must be commenced within one year after the cause of action accrued. KRS3 413.140(1)(e). The same statute further provides a negligence or malpractice action against a physician “shall be deemed to accrue at the time the injury is first discovered or in the exercise of reasonable care should have been discovered; provided that such action shall be commenced within five (5) years from the date on which the alleged negligent act or omission is said to have occurred.” KRS 413.140(2).

KRS 413.140(2) is clear that it is the plaintiff’s actual or constructive discovery of his injury that starts the running of the one-year limitations period for medical malpractice and negligence actions. Our Supreme Court has explained  that under the discovery rule, the statute of limitations will not commence to run until the plaintiff knows there is a “basis for a claim.” Wiseman v. Alliant Hospitals, Inc., 37 S.W.3d 709, 712 (Ky. 2000). The “knowledge necessary to trigger the statute is two-pronged; one must know: (1) he has been wronged; and, (2) by whom the wrong has been committed.” Id. When both knowledge requirements are satisfied, the plaintiff has been injured and the statute begins to run.

The Wiseman Court emphasized that the distinction between “harm” and “injury” is crucial to this analysis.   While an unskilled layperson may be able to appreciate harm, recognizing a legally cognizable injury is a far more complicated matter. “A mere suspicion of injury due to medically unexplainable pain following an invasive surgery does not equate to discovery of medical negligence.” Id. at 713. The statute of limitations begins to run only when the plaintiff possesses knowledge of both the “resulting harm and the cause of that harm.” Vannoy v. Milum, 171 S.W.3d 745, 750 (Ky. App. 2005).

Additionally, our Supreme Court has created an exception under which the statute remains tolled, so long as the patient is under the continuing care of the physician for the injury caused by the negligent act or omission and continues to treat with the physician in good faith for the purpose of improving the initial results or mitigating the damages caused by the poor treatment. Harrison v. Valentini, 184 S.W.3d 521, 524 (Ky. 2005). It is critically important to realize, however, that Harrison did not abrogate the discovery requirements previously set forth by the Wiseman court. Harrison does not stand for the proposition that the last date of treatment triggers the statute. Knowledge of both the harm and the injury is still required before the statute begins running. Harrison merely tolls a statute that already accrued until such time as the patient stops treating with the doctor at issue. Harrison is inapposite if the patient does not have the requisite knowledge on the last day of treatment. If the patient lacks the requisite knowledge on the last day of treatment with the physician, the clock remains at zero.

With these standards in mind, we turn to Stallins’s complaint. The circuit court appears to have considered Stallins’s complaint as alleging a single injury of which Stallins should have been aware “when he awoke from surgery.” While Stallins did allege that Dr. Hinton exceeded the scope of Stallins’s consent, a fact that would have been known to Stallins when he awoke from surgery or shortly thereafter, he also alleged that Dr. Hinton failed to appropriately dress his wounds and provide him with reasonable aftercare, causing him to develop a MRSA infection. It is this second alleged injury that we do not believe the trial court should have dismissed on summary judgment, at least without providing Stallins additional time to conduct discovery.

We believe it is unclear from the record when Stallins was made aware of his MRSA diagnosis and whether he was informed at some point that better management of the infection could have prevented him from losing his leg.

While Stallins may have been fully aware in December 2011 of the open wounds on his body, we cannot hold him to have known that the open wounds and pain were indicative of negligence on Dr. Hinton’s part, especially when the treatment notes indicate that Dr. Hinton told Stallins on this last visit that his wounds were “granulating nicely.”

“[T]he patient cannot know whether the undesirable outcome is simply an unfortunate result of proficient medical care or whether it is the consequence of substandard treatment.” Harrison, 184 S.W.3d at 524. A mere suspicion of injury due to medically unexplainable pain following an invasive surgery does not equate to discovery of medical negligence. Wiseman, 37 S.W.3d at 713. While Stallins may have suspected that something was wrong after surgery, that in and of itself was insufficient to accrue a cause of action. One who possesses no medical knowledge should not be held responsible for discovering an injury based on the wrongful act of a physician, especially where the physician tells the patient on the last day of treatment that he appears to be healing nicely. Thus, while Stallins no doubt knew he was in pain as of this last visit, there is nothing in the record to suggest that Stallins had reason to suspect that this pain was out of the ordinary or the result of a deviation in the standard of care by Dr. Hinton.

The trial court erroneously equated “harm” with “injury.”


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The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC,  are below following short summaries of this week’s published cases and extracts of tort, insurance and procedure cases.

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