COAKY Minutes: April 12, 2013 — 1 tort case involving medical negligence and wrongful death (not published) but dealing with directed verdict, JNOV, judicial admissions, instructions

Published and Unpublished Decisions for COAKY for April 12, 2013

Click here for this week’s COA minutes and decisions
No. 359-374;  25 decisions; 5 to be published.
Click here for complete list of all COA minutes that you can download.

Only one decision address tort-related matters.

  • Marlow vs. Dr. James Buck, M.D.
    NOT PUB, COA
    COA affirmed jury verdict in favor of physician in medical malpractice and wrongful death claim.  Multiple issues addressed – directed verdict, JNOV, instructions and judicial admissions

PUBLISHED DECISIONS –

359.  FAMILY LAW
ENSOR (LARRY JAMES) VS. ENSOR (DEBORAH LYNN)
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING

NICKELL, JUDGE: These are combined appeals and a cross-appeal from a judgment of the Oldham Circuit Court concerning valuation and division of property, maintenance and the assessment of post-judgment interest from the dissolution of marriage of Larry James Ensor (“Larry”) and Deborah Lynn Ensor (“Debbie”). Following a careful review of the detailed record, briefs and the law, we affirm in part, reverse in part, and remand for further proceedings.

360.  CRIMINAL LAW
GIVEN (JEFFERY D.) VS. COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING

CLAYTON, JUDGE: Appellant, Jeffery D. Given, appeals from an order granting the Commonwealth’s motion to correct his sentence. He argues: (1) that the sentencing error was a judicial rather than a clerical error, which cannot be corrected more than ten days after the judgment became final; and (2) that his sentence of ten years of imprisonment is illegal and should be modified to a term of months. We affirm.

362. DIVORCE.  MODIFICATION OF MAINTENANCE.
TUDOR (CHAUNCEY J. T.) VS. TUDOR (MELANIE K.)
OPINION REVERSING AND REMANDING

CAPERTON, JUDGE: The appellant, Chauncey Tudor, appeals a Jessamine County Circuit Court order denying his request to modify the amount of monthly maintenance owed to the appellee, Melanie Tudor. The circuit court determined that the maintenance payments owed by Chauncey were not rendered unconscionable as a result of changed circumstances. However, the courtimproperly considered the income of Chauncey’s new spouse and we reverse and remand for proceedings consistent with this opinion.

364.  CRIMINAL LAW
COMMONWEALTH OF KENTUCKY VS. VIBBERT (LATISHA)
OPINION REVERSING AND REMANDING

DIXON, JUDGE: Appellant, the Commonwealth of Kentucky, appeals from an order of the Barren Circuit Court dismissing an indictment against Appellee, Latisha Vibbert, for first-degree possession of a controlled substance, a Class D felony. For the reasons set forth herein, we reverse and remand this matter for further proceedings.

367.  FAMILY LAW.  DNA TESTING.
K. (J.) VS. TAYLOR (BAILEY)
OPINION AFFIRMING

NICKELL, JUDGE: J.K. (“Mother”) gave birth to A.A.K.1 (“Child”) on May 16, 2011. She claims C.M. Huelsman,2 her former husband whom she plans to remarry, is Child’s father and listed him as such on Child’s birth certificate. The. question underlying this appeal is whether N.J.A., a man with whom Mother admits having an affair and living with for about fifteen months—until mere days before Child’s birth—is entitled to know whether Child is his biological son. Despite being under order since November 18, 2011, to undergo genetic testing for herself and Child, neither has been tested, and due to Mother’s machinations, N.J.A. has never seen the Child he believes he sired.

THE TORT REPORT:

362.  TORTS.  WRONGFUL DEATH. MEDICAL MALPRACTICE.  DIRECTED VERDICT. JNOV. INSTRUCTIONS. JUDICIAL ADMISSIONS.
TUDOR (CHAUNCEY J. T.)
VS.
TUDOR (MELANIE K.)
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
LAMBERT (CONCURS) AND MAZE (CONCURS AND FILES SEPARATE OPINION)
2012-CA-000110-MR
TO BE PUBLISHED
JESSAMINE

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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