Published Court of Appeals appellate cases for this week –
January 8, 2015: Links are to full text of PDF decision with AOC.
17. Criminal Law. Trial Court abused discretion in denying motion for continuance.
John William Smith vs. Commonwealth of Kentucky
Court of Appeals Published Opinion Affirming; Hopkins
18. Immunity Waiver. KRS 45A.245’s waiver of immunity for actions brought on written contracts applies to employment contracts
University of Louisville vs. Dr. James Weldon Lillard, Jr.
Court of Appeals Published Opinion Affirming. Franklin.
25. Attorney malpractice. Affirmed dismissal of pro se claim of legal malpractice for failure to have expert witness.
Kevin M. Gleason vs. Nicholas Nighswander, PLLC
Court of Appeals Published Opinion Affirming. Boone.
Selected “not to be published” Opinion
1. Medical negligence, statute of limitations, IIED and negligent infliction of emotional distress, fraud
Estate of Mary Crutcher vs. Philip C. Trover, MD,et al
COA Not to Be Published Opinion Affirming. Hopkins.
Appellants present three general arguments for our consideration. Those arguments are: (1) the entry of summary judgment on their medical negligence claims was both improper in light of the ample medical evidence in the record creating a genuine issue of material fact and premature; (2) sufficient evidence of outrage/IIED and negligent infliction of emotional distress was presented to warrant a denial of summary judgment; and (3) sufficient evidence of fraud was presented to warrant a denial of summary judgment.
2. Appeal did not transfer jurisdiction to COA. Plaintiff had died, and action revived.
Gracie Duvall vs. Phillip C. Trover MD, et al
COA Not to Be Published Opinion Dismissing. Hopkins
The notice of appeal filed in October 2012 in the name of a person who died before the judgment was entered did not transfer jurisdiction of the case to this Court. The circuit court never lost jurisdiction. Having authorized revival of the case, it should proceed as though nothing occurred between the date of Duvall’s death and the date of revival.
3. Medial Negligence. Affirmed dismissal for statute of limitations based upon date knew or should have known medical negligence but reversed on other claims
Estate of Geneva Adams vs. Philip C. Trover MD
COA Not to Be Published Opinion Affirming in part and reversing in part. Hopkins.
Similarly, we know the alleged negligence of August 20, 2003, could not have been discovered before that date. And, again, we know Adams initiated litigation based on that alleged negligent act on February 28, 2005. As with the July 2003 conduct, we cannot determine, as a matter of law, that Adams had been put on notice of this next claim before February 28, 2004. We can only determine that, as a matter of law, Adams knew or should have known on April 12, 2004, that Dr. Trover’s August 20, 2003 conduct might have caused her injury. As with the July 2003 conduct, if there is evidence that put Adams on notice of her claim between August 20, 2003, and February 28, 2004, it has not been brought to our attention.
Therefore, we must reverse the summary judgment as to Adams’ claims based on Dr. Trover’s July 18 and August 20, 2003 conduct. This ruling does not prohibit a future grant of summary judgment on any other ground, nor does it prohibit the grant of summary judgment upon the defense of limitations provided, however, that further discovery reveals evidence demonstrating Adams knew or should have known, before February 28, 2004, that her injury resulted from Dr. Trover’s 2003 conduct.
4. Medical Negligence. Affirmed dismissal per SOL
Robert Brown vs. Philip C. Trover MD
COA Not to Be Published Opinion Affirming. Hopkins.
Appellant Robert Brown brings this appeal from the Hopkins Circuit Court’s August 18, 2008 and September 16, 2008 summary judgment and order dismissing his medical negligence and fraud actions against Dr. Philip Trover, and the October 3, 2009 and May 8, 2012 orders dismissing his medical negligence, negligent credentialing, and fraud actions against Baptist Health Madisonville f/k/a Trover Clinic Foundation.1 The circuit court determined Brown did not file any of his claims against Dr. Trover within the statutorily prescribed limitations period; furthermore, the court found no evidence that either Appellee engaged in any conduct that prevented Brown from discovering any of his claims. The court also determined that the claims against the Foundation for medical negligence and negligent credentialing were not timely filed. Finally, the court ruled that Brown presented no evidence to create a genuine issue of material fact regarding Brown’s various fraud claims against the Foundation. For the reasons stated below, we affirm.
Only the first four of the Trover cases were selected to be include in this post. However, there are a total of 16 decisions on multiple issues pertaining to Dr. Trover and the medical facility. See the minutes for decisions 1-16.
23. Workers Compensation. Affirmed dismissal based upon exclusive remedy of workers compensation act.
Brenda McMican vs. Martin & Bayley, Inc. d/b/a Huck’s Convenience Store
COA Not to Be Published Opinion Affirming. Webster
Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.
Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).
AOC version of this week’s decisions can be accessed by clicking here.
The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC, are below:
[gview file=”https://kycourtreport.com/wp-content/uploads/2016/01/MNT01082016.pdf”]
