MAYSVILLE OBSTETRIC V. LEE
TORTS:  Medical negligence verdict affirmed;  Damages arising from infant’s death during delivery include loss of power to labor and earn money
      
2007-CA-001616
PUBLISHED: AFFIRMING IN PART AND REVERSING AND REMANDING IN PART
PANEL: LAMBERT PRESIDING; COMBS, DIXON CONCUR
MASON CIRCUIT COURT;
DATE RENDERED: 8/29/2008
      
LAMBERT, Judge.
Maysville Obstetric and Gynecological Associates, P.S.C. (hereinafter “Maysville Obstetric”) appeals the jury verdict rendered against it for negligence in the death of Katelyn Lee. Harlan Lee, administrator of the estate of Katelyn Michelle Lee, and Harlan Lee and Penny Lee, individually, separately appeal, arguing that they are entitled to a new trial on damages. After careful review of the record, we affirm in part and reverse in part.
      
      

The Lees argue that their two experts stated unequivocally that Katelyn’s death was caused by the negligence of Maysville Obstetric and that accordingly, the verdict was supported by substantial and competent evidence. A careful review of the trial record indicates that the jury was presented with conflicting expert medical testimony. According to the Lees, both Dr. Shower and Maysville Obstetric were negligent in their care of Penny and should have detected the velamentous insertion via ultrasound and should have conducted further and more complete ultrasound imaging. According to Dr. Shower and Maysville Obstetric, Penny did not have any type of previa and the velamentous insertion was not capable of being detected via ultrasound, whether abdominal or transvaginal. The question for this court to determine is “whether the estimation of the jury is supported by substantial and competent evidence.” Rogers v. Kasdan, 612 S.W.2d 133, 135 (Ky.1981). A review of the record indicates that it was, despite the conflicting evidence presented by the underlying defendants.
      
The jury was in the position to hear and weigh the evidence and to judge the credibility of the testifying witnesses. After doing so, it determined that the care provided by Maysville Obstetric amounted to negligence. It is not the role of this Court to supersede the jury and substitute its judgment of the conflicting testimony, and we decline to do so in this instance. Accordingly, we affirm the Mason Circuit Court’s order in so far as it denied the underlying defendant’s motion to vacate judgment.
      
The measure of damages in a wrongful death action involving an infant is the destruction of the infant’s power to earn money.  There is an inference that the child would have had some earning power, and in this lies the basis for recovery.   Based on the fact that there was no dispute that other than the blood loss leading to her death, Katelyn was an otherwise normal and healthy child, and thus the case law in Kentucky provides that the jury must make some award for loss of earning capacity. Accordingly,
      the COA reversed the order denying the underlying plaintiffs a new trial on damages and instruct that the parties be allowed to present evidence as to the damage to the estate by virtue of the destruction of Katelyn’s power to earn money. Furthermore, the instructions found in Turfway, 834 S.W.2d at 673 to be appropriate,
and the trial court is instructed to model the jury instructions accordingly.      

Digested by Michael Stevens