TORTS. WRONGFUL DEATH. MEDICAL MALPRACTICE. DIRECTED VERDICT. Marlow vs. Buck, COA, NPO 4/12/2013

MARLOW(PATRICIA), AS ADMINISTRATRIX, ET AL.
VS.
BUCK (JAMES)
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
MOORE (CONCURS) AND TAYLOR (CONCURS IN RESULT ONLY)
2012-CA-000125-MR
2012-CA-000189-MR
NOT TO BE PUBLISHED 4/12/2013

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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