Here are the decisions announced and posted by the Court of Appeals in their weekly minutes. Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.
Published Court of Appeals Decisions
Here are the links to the full text of each published case for this week with a short synopsis.
623. Criminal Law. Waiver after jury verdict. Reversible error evidence.
Patton v. Commonwealth of Kentucky
Court of Appeals Published Opinion REVERSING. Edmonton Cir Ct.
The standard Boykin colloquy is not appropriate in the situation where a defendant enters into a plea agreement after a jury verdict. This procedure undoubtedly created confusion, which was not assuaged by the trial court’s failure to explain to Patton which of the rights affected by the waiver remained applicable. This creates a clear question as to whether Patton possessed the requisite knowledge of the full array of likely consequences of the plea. In light of this failure, this Court must conclude that the trial court’s finding, that the plea was not knowingly, voluntarily, and intelligently made, was not supported by substantial evidence.
630. Criminal Law. Motion to withdraw guilty plea.
Dixon v. Bottom, Warden Northpoint Training Center [NB. This link works. Link in minutes does not.]
Court of Appeals Published Opinion AFFIRMING. Jefferson Cir Ct.
This matter is before the Court on appeal from the Edmonson Circuit Court’s order denying the motion of the Appellant and defendant below, Samuel Patton, to withdraw his post-verdict guilty plea and his waiver of the right to appeal. Patton also seeks review of the conviction itself. Having reviewed the record, for the reasons herein described, we reverse.
633. Criminal Law. Restitution to Victims and their insurance provider..
Bentley v. Commonwealth of Kentucky
Court of Appeals Published Opinion AFFIRMING IN PART AND REVERSING IN PART. Jefferson Cir Ct.
Jonathan Bentley appeals from the Letcher Circuit Court’s judgment and sentence entered pursuant to a conditional guilty plea, ordering him to pay restitution to the victims and to the victims’ insurance provider. After careful review, we affirm in part and reverse in part.
We agree with Bentley that Morseman can be distinguished from the instant case. Kentucky Farm Bureau made payments to the Meades under a contract of insurance and was not a victim of Bentley’s crimes.
Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:
Wilbert Horsley v. Dr. Kenneth R. Smith, M.D.
COA Not to Be Published Opinion REVERSING. Jefferson Cir Ct.
Appellant, Wilbert Horsley, appealed the judgment of the Jefferson Circuit Court entered after a jury verdict in favor of Appellees, Dr. Kenneth Smith and KS EyeWorks. On February 13, 2015, this Court rendered an opinion affirming the judgment. On February 10, 2016, the Kentucky Supreme Court, on discretionary review, vacated our opinion and remanded the case for further consideration in light of its decision in Sargent v. Shaffer, 467 S.W.3d 198 (Ky. 2015). For the reasons set forth in Sargent, we reverse the Jefferson Circuit Court judgment.
On cross-examination, Horsley’s counsel presented Dr. Smith with a page from the American Medical Association (AMA) website. Dr. Smith agreed with the statement there that, depending on the situation, it is appropriate to inform a patient of alternatives to the proposed course of treatment and associated risks.
Dr. Smith admitted further that although there are several ways to administer anesthesia before cataract surgery, his standard practice was to perform an injection. While Dr. Smith recalled discussing with Horsley the different ways of administering anesthesia, he conceded that he did not give Horsley the option of selecting his choice of anesthesia.
The holding in Sargent v. Shaffer compels us to reverse the Jefferson Circuit Court’s judgment on the basis of Horsley’s first argument – improper jury instructions.
“[I]n addition to the general duty of ordinary professional care, health care providers are subject to special duties created by the legislature, which must be incorporated into jury instructions in medical negligence cases.” Id. at 206. “KRS 304.40–320 is an exercise of the legislature’s prerogative to amplify, or expound upon, the general duty of a medical provider to obtain a patient’s informed consent with specific conditions for compliance.” Id.
Therefore, in a medical malpractice action that includes a claim that the medical professional failed in his duty to obtain the patient’s informed consent, there must be a more specific instruction.
In Sargent, the Supreme Court provided guidance as to how that instruction should look. Referring to Sargent’s jury instruction rejected by the circuit court, the Court stated it “is simple and uncluttered by complex or confusing verbiage [and w]ith minor variations based upon the peculiarities of the particular case, it would serve well as an appropriate model for similar cases.” Id. at 210. We quote that instruction here, with modifications, for use in a re-trial of Horsley’s case against Dr. Smith.
629. Medical negligence appeal by pro se plaintiff.
Mullins v. Matthew Graber, M.D.
COA Not to Be Published Opinion AFFIRMING. Fayette Cir Ct.
632. Qualified immunity.
Martin v. Storm
COA Not to Be Published Opinion REVERSING AND REMANDING. Jefferson Cir Ct.
Appellant, Louis Martin, appeals from the Jefferson Circuit Court’s denial of his motion for a directed verdict at the close of evidence in his personal injury action, as well as the denial of his post-trial motion for a judgment notwithstanding the verdict. For the reasons stated herein, we reverse and remand for further proceedings.
641. Torts. Direct cause of action against insurer.
Flint v. Nationwide Insurance Company
COA Not to Be Published Opinion AFFIRMING. Jefferson Cir Ct.
Since it has been determined previously — as a matter of law — that Nationwide’s insured was not responsible for the damage to Flint’s condominium, Nationwide cannot be held liable to Flint for the damage. Any arguable liability on the part of Nationwide would be contingent upon and derivative of the liability of its insured. Therefore, since its insured was absolved of liability, Nationwide is not subject to any claim whatsoever. See Pryor v. Colony Ins., 414 S.W.3d 424 (Ky.App. 2013). Moreover, the summary judgment entered in favor of Nationwide’s insured in 2012 is no longer subject to appeal because it was affirmed by this Court in 2013; nor is it eligible for retrial as Flint contends.
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