Small Memorial Park Adjacent to Breathitt County Court House
The Kentucky Court of Appeals announced 16 decisions on November 7, 2014, with none of the sixteen designated by the Court of Appeals “to be published”.
Click here for links to all the archived Court of Appeals minutes.
“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.
The Tort Report – Selected decisions this week on tort, insurance and civil law (ONE for this week)
11. Medical negligence
Elizabeth Palmer vs. The Doctors, PLLC and Witold A. Wilk, D.O.
COA, Not published 11/2014 from Hardin County Affirming
DIXON, JUDGE: Appellant, Elizabeth Palmer, appeals from an order of the Hardin Circuit Court denying her motion for a new trial following a unanimous jury verdict in favor of Appellees, The Doctors PLLC and Witold A. Wilk, D.O., in her medical negligence case. For the reasons set forth herein, we affirm.
Plaintiff saw Dr. Wilk for malaria prophylaxis seeking mefloquine for her trip to Uganda. However, Dr.Wilk explained he did not like Mefloquinine (weekly) but rather prescribed a weekly medication (Chloroquine) and a daily medication (Doxycycline). Palmer filled the prescriptions and when there were two instead of one she assumed she had a choice of one or the other (and took the weekly drug). Well, she developed symptoms and on her return, and saw Dr. Dishaw receiving a diagnosis of a viral syndrome, following up with Dr. Wilk who believed she had gastrenteritis or Hepatitis A and prescribed accordingly She later developed symptoms of malaria and underwent amputation of toes on both feet.
On June 14, 2010, Palmer filed a medical negligence action in the Hardin Circuit Court against Dr. Wilk and Dr. Dishaw. Prior to trial, but after the close of discovery, Palmer settled her claims against Dr. Dishaw. A jury trial was subsequently held in June 2013 on Palmer’s claims against Dr. Wilk. At the close of evidence, the jury returned a unanimous defense verdict and the trial court entered judgment accordingly.
Trial court then overruled motion for new trial noting “parties are not promised a perfect trial but basically a fair one” and noted further only harmless error and a unanimous verdict.
On appeal, appellant Palmer argued trial judge erred by not removing for cause a juror who noted the justice system was “kind of corrupt” and that plaintiffs “often blow things out of proportion.” Judge Dixon, COA, stated you look at the totality of the circumstances and not just the isolated remarks appellant’s brief.
COA also rejected argument that it was error to allow defense thru Dr. Wilk to offer an entirely new theory of defense with new testimony.
Other errors raised were knocked down by the COA and the jury verdict affirmed.
[FWIW the reasoning and analysis in the decision to affirm the verdict and the trial court’s ruling followed a torturous path of reason with an “interesting” quip added that “Interestingly, counsel never specifically questioned Dr. Wilk about what the contraindication was” for the basis of the two-drug prescription. No motion filed as of 11.23.2014 for discretionary review].
12. Doctrine of qualified official immunity.
Randy Thompson vs Lou Jean Martin
COA Not Published 11/7/2014
Vacating and Remanding
Summary judgment granted dismissing claim against Knott County for injuries when plaintiff fell in hidden hole on county property but not dismissing claims against county employees. Vacated and remanded as two employees are protected by qualified official immunity.
[gview file=”https://kycourtreport.com/wp-content/uploads/2014/11/MNT11072014.pdf”]
