Pike County Courthouse, Pikeville, Kentucky. Built 1889 with 1932 Additions. Photo courtesy of Keith Vincent @ www.CourtHouseHistory.com.
The Kentucky Court of Appeals announced 18 decisions on July 31, 2015, with one opinion designed “to be published”.
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The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC, are below following short summaries of this week’s published cases and extracts of tort, insurance and procedure cases.
Published appellate cases for this week – July 31, 2015:
657.Medical negligence. Informed Consent. Experts. Opening statement. Directed Verdict.
Jacquilyn G. Harrington vs. Dr. Alex Argotte, M.D.
COA Published 7/31/2015; Reversing and remanding grant of directed verdict.
Trial judge prematurely granted directed verdict during opening statement in medical negligence case on need for experts on lack of informed consent.
TAYLOR, JUDGE: Jacqulyn G. Harrington brings this appeal from a March 21, 2014, directed verdict of the McCracken Circuit Court dismissing her medical negligence action against Alex Argotte, M.D. We reverse and remand.
Harrington filed a complaint alleging medical negligence against Argotte. Harrington claimed, inter alia, that Argotte failed to obtain adequate informed consent for the surgical implantation of the IVC filter. In particular, Harrington asserted that Argotte failed to inform her that the IVC filter was retrievable and possibly could have been removed prior to its fragmentation. Also, Harrington maintained that Argotte failed to inform her that the IVC filter could fracture.
The case came before the trial court for a jury trial on March 17, 2014. A jury was empaneled, and the case proceeded to opening statements. After Harrington presented her opening statement, Argotte moved for a directed verdict. Kentucky Rules of Civil Procedure (CR) 50.01. Argotte argued that Harrington admitted during her opening statement that no expert witness would testify as to whether Argotte breached the standard of care as to Harrington’s claim of lack of informed consent. The trial court sustained the motion for directed verdict, thus concluding the trial proceedings without any evidence being presented.
Harrington contends that the circuit court erred by rendering the directed verdict dismissing her negligence claim for lack of informed consent. Harrington argues that it was error to render the directed verdict after her opening statement and prior to presentation of any evidence to the jury.
Based upon our review of Kentucky law, a directed verdict may be rendered after opening statement in very limited cases where counsel made an admission unequivocally fatal to her cause of action. Riley v. Hornbuckle, 366 S.W.2d 304 (Ky. 1963); Samuels v. Spangler, 441 S.W.2d 129 (Ky. 1969). It must be emphasized that a “directed verdict at this stage of the proceedings is never based on the mere insufficiency of the opening statement to support a case, but always upon the presence of admissions that are fatal to the case.” Riley, 366 S.W.2d at 305. Additionally, our Supreme Court has warned that a directed verdict after opening statement “is [] dangerous [practice] and should be exercised with caution.” Raco Corp. v. Edwards, 272 S.W.2d 345, 347 (Ky. 1954); see also CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 78 n.8 (Ky. 2010); Green v. Owensboro Medical Health System, Inc., 231 S.W.3d 781 (Ky. App. 2007).
During opening statement at trial, Harrington’s counsel stated that he did not intend to call a medical expert to testify on the informed consent issue. Harrington asserted that a medical expert was unnecessary as Argotte’s failure to adequately inform her of the risks and hazards associated with the IVC filter was so apparent that a layman could easily recognize it.
It is well-established that “[a]n action based on lack of informed consent ‘is in reality one for negligence in failing to conform to a proper professional standard . . . .’” Hawkins v. Rosenbloom, 17 S.W.3d 116, 119 (Ky. App. 1999) (quoting Holton v. Pfingst, 534 S.W.2d 786, 788 (Ky. 1975). To prevail upon a claim of lack of informed consent, “the general rule is that expert testimony is required to negate informed consent.” Hawkins, 17 S.W.3d at 119. An exception to this general rule is recognized and is applicable “where the failure is so apparent that laymen may easily recognize it or infer it from [the] evidence.” Keel v. St. Elizabeth Medical Center, 842 S.W.2d 860, 862 (Ky. 1992). And, the decision that expert testimony is required is within the circuit court’s discretion.
In the case sub judice, the circuit court prematurely determined that expert testimony was required to demonstrate the standard of care and breach thereof by Argotte. In a medical negligence claim, the law recognizes an exception where expert testimony is unnecessary if the failure to disclose is so obvious that a layperson can recognize the necessity of such disclosure to a patient. The circuit court viewed this exception as only being triggered in cases where no consent was given by the patient. We disagree with this narrow limitation. Rather, the application of the exception is highly fact-specific and is dependent upon whether the failure to disclose is obvious and apparent to a layman based upon the underlying facts as established by the evidence introduced at trial. As no evidence was heard or introduced before the directed verdict was granted, the circuit court could not have properly determined whether the exception to the general rule requiring expert testimony was applicable.1
Selected not to be published decisions on tort, insurance and civil–
652. Default judgement prematurely granted while motion for enlargement of time to file answer pending and not ruled upon.
Danny L. Ferrell vs. Liberty Mutual Ins. Co. a/s/o Brenda Paris
COA Not published opinion (NPO) vacating and remanding default judgment granted in favor of the pip insurer; 7/31/2015 Christian County
COA held that default judgement on PIPs subrogation claim was premature and set aside while motion for enlargement of time filed after time period for default but default not yet granted
TAYLOR, JUDGE: Danny L. Ferrell brings this appeal from a January 17, 2014, Default Judgment of the Christian Circuit Court against Ferrell in the amount of $35,000. We vacate and remand.
The underlying allegations in the complaint arose from a traffic accident involving Paris and Ferrell on February 22, 2012, in Hopkinsville, Kentucky. Liberty Mutual, Paris’s insurance carrier, paid reparation benefits to Paris and was subrogated to her claim against Ferrell. The default judgment did not address Ferrell’s Motion for Extension of Time to file a late answer to the complaint. This appeal follows.
The motions effectively passed each other through the U.S. Mail. Without ruling on the Motion for Extension of Time, the circuit court rendered a default judgment against Ferrell in the amount of $35,000 on January 17, 2014.
Ferrell argues that the circuit court erred by rendering the default judgment. For the following reasons, we conclude that the circuit court abused its discretion by rendering the default judgment without ruling on Ferrell’s Motion for Extension for Time to file a late answer or responsive pleading.
656. Affirmed jury verdict for the chiropractor malpractice claim following vertebral artery dissection
Jessica Jackson vs. Scott M. Gladdis, D.C.
COA, NPO Affirming, Woodford County 7/31/2015
Pro se appeal affirmed and trial court did not err in denying motion for new trial or continuance or that verdict was not supported by the evidence.
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