October 2012 SCOKY Monthly Case Summary of Published Decisions

Sorry, playing a little catchup here in the interest of having a complete set of SCOKY Minutes available on the Kentucky Court Report.

Click here for the October 2012 summaries of published decisions from the Supreme Court of Kentucky (SCOKY).

Click here for list of all summaries for SCOKY by year and month at AOC.

TORT REPORT (the following are summaries of selected decisions from this month dealing with torts, insurance, and civil procedure):

Insurance Law; Assignment of claim
In re: Wehr Constructors Inc. v. Assurance Company of America
2012-SC-000221-CL October 25, 2012
Opinion by Justice Venters. All sitting; all concur, with J. Noble concurring by separate opinion. The United States District Courts for the Western District of Kentucky sought certification to the following question of Kentucky law: Whether an anti-assignment clause in an insurance policy that requires an insured to obtain the insurer’s prior written consent before assigning the claim under the policy is enforceable or applicable when the claimed loss occurs before the assignment, or whether such a clause would, under those circumstances, be void as against public policy? Under Kentucky law, an anti-assignment clause in an insurance policy that requires an insured to obtain the insurer’s prior written consent before assigning the claim under the policy is not enforceable or applicable when the claimed loss occurs prior to the assignment, and that such a clause would, under those circumstances, be void as against public policy.

Medical Negligence; Expert Testimony Not Needed Under these facts
Christopher Tucker, as Administrator of the Estate of Mindi Tucker, Deceased Etc., et al. v. Women’s Care Physicians of Louisville, P.S.C.; And Susan Bunch, M.D.
2010-SC-000466-DG October 25, 2012
Opinion of the Court by Justice Noble. All sitting. Minton, C.J.; Abramson and Cunningham, JJ., concur. Venters, J., dissents by separate opinion in which Schroder and Scott, JJ., join.

Trial court in medical malpractice case denied Estate’s request to introduce expert testimony that a standing order from a doctor to a nurse was ambiguous on the grounds that it was not relevant. Court of Appeals held that trial court did not abuse its discretion, and affirmed. In affirming the Court of Appeals, the Court held that, based on her trial and deposition testimony, the nurse did not believe that the standing order was ambiguous, and therefore any expert testimony that the order was ambiguous was not relevant. Venters, J., dissented on the ground that the trial court abused its discretion because the proffered expert testimony was relevant and admissible.

Torts, Instructions & Apportionment Re settling non-party
Sophia Savage, et al. v. Three Rivers Medical Center
2010-SC-000478-DG October 25, 2012
Three Rivers Medical Center v. Sophia Savage, et al.
2011-SC-000348-DG October 25, 2012

Opinion by Justice Venters. Minton, C.J., Cunningham, Noble and Scott, JJ., concur. Abramson, J., concurs in result only. Schroder, J., not sitting; Civil, Procedure, Evidence;

Questions presented 1) Whether, after return of verdict tainted by evidentiary error, trial court had discretion to grant a new trial rather than judgment notwithstanding the verdict; 2) Were duplicate copies of X-rays retained by patient rather than hospital medical record custodian properly admitted into evidence; 3) Was nurse with military training and experience reading x-rays qualified to give expert opinion testimony regarding what is shown on x-ray film; 4) Whether defendant was entitled to jury instruction apportioning fault to settling non-party; and 5) whether damages awarded totaling over $2.5 million were excessive.

Held: 1) While, ordinarily a verdict based upon insufficient evidence justifies the entry of a judgment notwithstanding the verdict, trial judge has broad discretion under CR 50.02 to grant a new trial instead; 2) Duplicate x-ray was properly admitted into evidence pursuant to KRE 1003; Patient who had retained possession of X-ray film was competent to authenticate it under KRE 901(b)(1); 3) Nurse, with wartime experience reading x-rays to locate shrapnel and bullets in wounded soldiers, had the “knowledge, skill, experience, training” to satisfy requirements of KRE 702 to testify as an expert in reading x-ray to locate metal object left in patient during surgical procedure; 4) In a medical negligence case, to have an apportionment instruction that permits allocation of fault to non-party medical provider, the defendant must put forth sufficient testimony to show that the medical provider failed to conform to the appropriate standard of care; 5) despite trial court’s conclusory statement that damage award was the result of jury passion and prejudice, the evidence explicitly established that removal of sponge negligently left in patient’s body resulted in substantial pain, discomfort, and disability, as well as emotional anguish, distress, and loss of consortium, so that jury award exceeding $2.5 million was not excessive.

ImmunityHospital Employees Immunity for failure to report to CPS
Norton Hospitals, Inc. (D/B/A Norton Suburban Hospital) v. Brandi Peyton
2010-SC-000818-DG October 25, 2012
Neonatal Intensive Care Experts II, PLLC, et al. v. Brandi Peyton
2010-SC-000819-DG October 25, 2012
Opinion of the Court by Justice Schroder. Minton, C.J.; Abramson, Cunningham, Noble and Venters, JJ., concur. Scott, J., dissents by separate opinion.

The primary issue was whether a hospital and its employees have statutory immunity under KRS 620.030 and 620.050 where a mother’s blood alcohol level may have been misreported to Child Protective Services. KRS 620.050(1) provides immunity from civil and criminal liability for anyone “acting upon reasonable cause in the making of a report or acting under KRS 620.030 to 620.050 in good faith . . .” Therefore, a reporter’s good faith belief that he or she is discharging the lawful duty to report under KRS 620.030, even if such a belief is ultimately determined to be erroneous, is all that is required under KRS 620.050(1). Where the evidence does not establish an issue of material fact as to whether the Appellants acted in good faith under KRS 620.030 in making a report to the Cabinet, the Appellants were entitled to immunity under KRS 620.050(1) as a matter of law. Reversing the decision of the Court of Appeals, the Court concluded that the trial court properly granted summary judgment in favor of the Appella

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