“Lost or diminished chance” of survival because of physician’s misdiagnosis is not a recoverable claim in Kentucky: WARREN KEMPER, MD V. GORDON (SC 6/19/2008)

WARREN KEMPER, MD  V. GORDON
TORTS:  "Lost or diminished chance" of survival because of physician’s misdiagnosis is not a recoverable claim in Kentucky
2005-SC-000306-DG.pdf
2006-SC-000077-DG.pdf
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
OPINION BY CUNNINGHAM; LAMBERT CONCURS IN RESULT ONLY BY SEP. OPINION WITH ABRAMSON JOINING; NOBLE DISSENTS BY SEP. OPINION WITH SPECIAL JUSTICE THOMAS C. SMITH JOINING; MINTON AND SCHRODER NOT SITTING
FROM JEFFERSON COUNTY
DATE RENDERED: 6/19/2008

This wrongful death case involves the profoundly sad death of a young mother, thirty-eight year old Lori Gordon. The decedent’s family and estate (Gordons) alleged that Lori’s death was the result of a negligent misdiagnosis by, among others, Dr. Warren Kemper. Various claims filed by the Gordons were resolved, both before trial and up through the return of the jury verdict. As a result, the jury’s finding of no negligence on the part of Lori’s healthcare providers had an impact only on Dr. Kemper.   SCOKY granted discretionary review to address the decision of the Court of Appeals adopting the “lost or diminished chance” doctrine of recovery In their cross-appeal, the Gordons argue separate grounds for reversal and a new trial.  Further, in the event a new trial is granted, the Gordons asked SC to review numerous evidentiary issues.

While SC rejected the adoption of the “lost or diminished chance” doctrine of recovery, the did SC conclude the Gordons established sufficient grounds for a new trial.

Specifically, the holding in this case that the doctrine of lost or diminished chance for recovery or survival did not apply in medical-malpractice cases was containing in a plurality (rather than a majority opinion) which was authored by Cunningham,  with one justice and one special justice concurring and two justices concurring in result only.  As for the other issues raised, the SC held that  whether physician breached standard of care in failing to diagnose patient’s gastric cancer was for the jury;  the trial court did not err and acted within its discretion in declining to qualify internist as an expert for purpose of giving an opinion as to likelihood of patient’s survival had her gastric cancer been diagnosed by physician and in excluding a portion of testimony of one of plaintiffs’ experts.  However, the trial court’s refusal to allow plaintiffs to question one of physician’s experts about apparently inconsistent testimony that expert had given in a previous case was reversible error.

By Michael Stevens, ed.

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