Baxter v. AHS
Samaritan Hospital, LLC
2008-CA-000541 01/15/2010 2010 WL 133796
Opinion by Judge Keller; Judge Acree concurred; Judge Caperton dissented in part by separate opinion. The Court affirmed a judgment of the circuit court dismissing a medical malpractice action after a jury found that a doctor was not negligent in failing to remove a surgical sponge following an appendectomy. Following the holding in Nazar v. Branham, 291 S.W.3d 599 (Ky. 2009), the Court first held that the trial court did not err in overruling motions for partial summary judgment and directed verdict against the doctor under the doctrine of negligence per se. The Court next held that trial court correctly denied motions for partial summary judgment and directed verdict under the doctrine of res ipsa loquitur. Although the presence of the sponge constituted prima facie evidence of negligence, the expert testimony created a question of fact as to the doctor’s liability for the injuries. The Court next held that the trial court did not err by failing to give an instruction on the doctrine of res ipsa loquitur. Although Nazar allowed the jury to infer negligence and a party to avoid a directed verdict or to win a directed verdict, the instructions on the doctrine should not be submitted to a jury. The Court finally held that the trial court did not err in granting partial summary judgment, precluding a deceased infant from bringing a wrongful death action pursuant to KRS 411.130, because the experts concluded that the infant was never viable and was not capable of sustaining life apart from his mother. Even so, because the jury determined that the doctor was not negligent, he could not have been liable for the death of the infant.