The Kentucky Court of Appeals announced 21 decisions on Oct. 10, 2014, with two opinions designated to be published – (920) Mary Bouvette vs. Michael Bouvette from Jefferson County (COA reversed and remanding holding family court judge abused her discretion in denying appellant wife’s two motions for a continuance on financial matters and noting attorney fees award could change on remand); and Samantha G. Holloway vs. Direct General Insurance Company of Mississippi, Inc. from Fayette County (COA affirmed trial court summarily dismissing appellant’s bad faith claim against insurer; claimant/appellant’s unsworn interrogatory responses and unsworn, undated report of a putative expert were not enough to refute summary dismissal).
Marker in Jackson,Kentucky noting the many trials from the feud era. Photo by Mike Stevens.
Here are a few links of historical value for Breathitt County:
- BLOODY BREATHITT: POWER AND VIOLENCE IN THE MOUNTAIN SOUTH By T.R.C. Hutton
- Documentary explores ‘bloody Breathitt’ feuds more deadly than Hatfield-McCoy (click here for link to purchase DVD of Jerry Deaton’s documentary from KET)
- The Beginnings of “Bloody Beathitt”
- Breathitt County Feuds and other Stories
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 (None this week).
892. Medical Negligence
Jason Gibson vs. St. Luke Hospitals,Inc.
COA, Non Published Opinion (NPO); 10/10/2014
Opinion by PJ Caperton Affirming Directed Verdict dismissing claim against hospital
CAPERTON, JUDGE: The Appellant, Jason Gibson, the husband of Danielle Gibson, deceased, appeals the trial court’s grant of a directed verdict on his medical malpractice claim in favor of the Appellees, The St. Luke Hospitals, Inc. (St. Luke) and The Health Alliance of Greater Cincinnati, Inc. (Health Alliance). Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
Prior to addressing the arguments of the parties, we note that when considering a motion for directed verdict the court has a duty to consider evidence in the strongest possible light in favor of the nonmoving party, and must give the nonmoving party every favorable and reasonable inference which can be drawn from the evidence. Reece v. Nationwide Mut. Ins. Co., 217 S.W.3d 226, 231 (Ky. 2007). Indeed, a trial court should not grant a directed verdict unless there is a complete absence of proof on a material issue. Bierman v. Klapheke, 967 S.W.2d 16, 18-19 (Ky. 1998). We review the arguments of the parties with this in mind.
As this Court has previously held, every health care provider that treats a patient accepts an independent duty of care and the potential for independent liability. NKC Hosps. Inc. v. Anthony, 849 S.W.2d 564, 568-69 (Ky. App. 1993).
[T]hat patient is owed a duty by the hospital through its employees and staff, including independent staff personnel, to exercise appropriate care to provide for the patient’s well-being and to promote his cure. A breach of this duty may expose the hospital to liability in tort. Any lesser rule would be insensible to the true role of a hospital as an institution in present day society.
Williams v. St. Claire Medical Center, 657 S.W.2d 590, 597 (Ky. App. 1983).
While we agree that this is so, we simply cannot, upon review of the record, find sufficient evidence to establish that St. Luke’s own employees, and not those of the Health Alliance, were responsible for Danielle’s death. Moreover, we are in agreement with the Appellees that even if such evidence existed, the jury was clear in its finding that Health Alliance was negligent but that such negligence did not proximately cause Danielle’s death. While the court did err in instructing the jury that it could attribute the negligence of St. Luke employees to the Health Alliance, it is clear that the jury, under that belief, considered the evidence with respect to both St. Luke and Health Alliance and determined that hospital conduct was not the proximate cause of Danielle’s death. Indeed, Gibson’s claim against St. Luke is based upon the same conduct that supported the claim against Health Alliance. As our courts have repeatedly held, error is harmless where the court cannot conclude that the outcome of the trial would have been any different. Davis v. Fischer Single Family Homes, Ltd., 231 S.W.3d 767, 776 (Ky. App. 2007). Believing such to be the case sub judice, we affirm.
Upon review of the record and applicable law, we are in agreement with the Appellees that Gibson repeatedly and voluntarily disclosed the settlement with the treating physicans.3 We cannot find that Appellants were in any way forced to disclose the settlement. As we have previously held, a party is estopped to take advantage of an error produced by his own act. Wright v. Jackson, 329 S.W.2d 560 (Ky. App. 1959); McVey v. Berman, 836 S.W.2d 445, 450 (Ky. App. 1992). Thus, even if error occurred, it was invited by Appellants who repeatedly disclosed and discussed the fact of settlement in front of the jury. Finding no basis for reversal, we affirm.
As his third and final basis for appeal, Gibson argues that the trial court abused its discretion and affected Gibson’s substantial rights by refusing to admit evidence that a lawsuit between the Appellees caused St. Luke to be underfunded, understaffed, and chaotic. We are in agreement with the Appellees that by excluding evidence of the lawsuit, the court did not prevent Gibson from submitting evidence on each of the matters at issue.
901. Summary Dismissal of bad faith claim affirmed on appeal.
Samantha G. Holloway vs. Direct General Insurance Company of Mississippi, Inc
COA Published 10/10/2014
PJ Moore Affirming dismissal from Jefferson County
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