DATE RENDERED: 09/28/2007

This medical negligence claim arose from alleged negligent post-surgery care by the hospital’s nursing staff. A jury returned a verdict in favor of Jewish Hospital and this appeal followed in which the appellant alleges the trial court: (1) erroneously excluded relevant and competent evidence concerning Mr. Dawson’s bedsores; (2) denied the Dawsons’ counsel an adequate opportunity to voir dire the jury; and (3) failed to tender a loss-of-chance instruction to the jury. The Dawsons also appeal from a post-verdict order requiring them to pay Jewish Hospital’s expert witness fees. The appeals were consolidated. Finding no reversible error, affirmed’

Dawsons contend that Mr. Dawson experienced pain in his side. He went to Tri-County Baptist Hospital where a CT scan was performed which revealed a 6cm aortic aneurysm in his chest. Mr. Dawson was referred to Dr. Matthew Jung who reviewed the CT films and recommended surgery. He discussed with Mr. Dawson the potential complications from the surgery including paraplegia (paralysis) and death.

Twenty-one months after his initial diagnosis, Mr. Dawson again saw Dr. Lawson but refused a CT scan. Two days after seeing Dr. Lawson, Mr. Dawson’s pain became so severe that he returned to Tri-County Hospital. While on the gurney, the aneurysm, which was by then 7.5cm, ruptured. He survived the rupture but was still in need of surgery. After he again refused, he was admitted to the hospital as a terminal patient.

Aware of the risk, Mr. Dawson elected to have the surgery.

Although vital signs were to be recorded every two hours, at 6:00 p.m., the flow sheet does not indicate any recorded vital signs for Mr. Dawson. However, shortly after 6:00 p.m., a nursing assistant drew blood for a glucose test and Mr. Dawson did not indicate that he had any problems. His blood pressure was continuously monitored at the nursing station.

Dr. Ganzel testified that even if the paralysis had been treated earlier, there was no chance of a reversal and success would be “highly unusual.” Dr. Bouvette also testified that the “late onset of paralysis has been known and accepted as a complication well into the second week following surgery.”

Dr. Luis Mispereta testified that although there have been a “few anecdotal reports” of reversal of paralysis caused by “compartment syndrome,” there has not been one instance when paralysis caused by a blood clot such as in Mr. Dawson’s case has been reversed. Jewish Hospital also produced the testimony of Dr. Henry Garreston, a neurosurgeon, who testified that once Mr. Dawson was paralyzed, it was irreversible.

With regard to pretrial discovery and expert witnesses, the pretrial order clearly stated –  "There must be a literal compliance with the requirements of CR 26.02(4)(a)(i). A party must identify each person whom the party expects to call as an expert witness at trial, and state the substance of the fact and opinions to which the expert is expected to testify and a summary of the grounds of each opinion. . . . Failure to comply with the letter and spirit of the aforesaid civil rule may result in the suppression of the expert’s testimony."

Despite the direct order of the court, outside the disclosure deadline, on December 5, 2005, the Dawsons attempted to supplement their expert disclosures to include expert opinions from Dr. Cowles and Nurse Batezel concerning bedsores and itemized medical expenses which included 53 providers different from those previously disclosed.

On December 20, 2005, the trial court sustained Jewish Hospital’s motion to exclude any reference during the trial to bedsores.

Thus, if the bedsores were a natural consequence of the paralysis, Jewish Hospital cannot be liable for any damages incurred as a result of the bedsores; any error, therefore, was not prejudicial.

With regard to voir dire, the court permitted each party’s counsel to question the jury and, at the close of Jewish Hospital’s voir dire, counsel asked, without objection, two questions:

Defense Counsel: Does anybody here think lawsuits are driving up the costs of health care?

Defense Counsel: Does anyone here think that Kentucky is losing doctors as result of lawsuits?

The Dawsons contend that “approximately 50% of the jury panel raised their hands" in response to these questions; and Dawson’sr counsel’s request to re-voir dire the jury panel was denied. Thus, they surmise, they “were left with a panel, 50% of which clearly indicated that they personally felt that the Dawsons’ lawsuit would drive-up their health care costs and result in physicians leaving the state.”

The Dawsons did not object to a single voir dire question; did not challenge a juror for cause on the basis of bias, and, when asked if they accepted the jury, their counsel responded affirmatively. Any contention that the trial court abused its discretion when it denied the Dawsons the opportunity to have the last word in the jury selection process was waived.

The evidence in this case did not warrant (a loss of chance)…instruction …under the loss-of-chance doctrine, the plaintiff must still prove that the defendant breached the applicable standard of care and the breach was a substantial factor in causing a diminished chance of recovery or survival from the underlying disease or injury.

Digested by Michael Stevens

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