JENKINS V. BEST, M.D.
TORTS: MEDICAL NEGLIGENCE
2006-CA-001277
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING IN PART
PANEL:  ACREE PRESIDING; TAYLOR, KNOPF CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 09/28/2007

CA affirms in part and reverses and remands in part these related appeals from the TC summary judgments for Best and University Obstetrical and Gynecological Associates ("University Associates") in this medical malpractice case. (Jefferson Cir. Ct., Hon. Judith E. McDonald-Burkman, judge, presiding).

CA holds that Dr. Farmer and Baptist Hospital have no standing to challenge the summary judgments in favor of their former co-defendants. Also, as to Jenkins’ appeal, CA affirms summary judgment for Dr. Best and reverses and remands summary judgment for University Associates.

Baptist Hospital contracted with University Associates to provide a wide range of parinatology specialist services. University Associates engaged Dr. Best to provide those services to both University of Louisville Hospital and Baptist Hospital. On March 28, 2003, University Associates scheduled Dr. Best to be on call to deliver babies at UofL Hospital overnight; the contract required her to remain in-house at UofL overnight. University Associates also scheduled Dr. Best to be on call at Baptist without making any contingency plan in the event both contracts required simultaneous performance.

Jenkins came to Baptist twice on that date, 30 weeks pregnant and complaining of abdominal pain and vaginal bleeding. Dr. Farmer covered for her regular obstetrician and was informed by nurses by phone that her condition did not indicate fetal distress. He ordered an ultrasound to be performed by a perinatologist to reassure the patient and her family. The duty nurse called Dr. Best to perform the ultrasound and was told Dr. Best could not come tonight, but could come in the morning. The nurse told Dr. Farmer and he came to the hospital to examine Jenkins himself. He found her stable and ordered the ultrasound for the morning. At shift change that night (approximately one hour later) a new nurse became concerned about Jenkins’ condition and called Dr. Farmer who had her transferred to a third hospital for a complete immediate obstetrical ultrasound. The child was delivered by C-section shortly thereafter; he was permanently and totally disabled and has since died. During his deposition, Dr. Farmer stated that he was unaware that University Associates had no contingency plan and that he had assumed that upon first consultation for the ultrasound as ordered, Dr. Best had determined that it was advisable to wait until morning. He thought that if Dr. Best thought an ultrasound was required immediately and she was unavailable, she would arrange for another specialist to conduct the ultrasound.

Best and University Associates were granted summary judgment on the basis that Dr. Best never had a physician-patient relationship with Jenkins. Farmer and Baptist appealed; COA holds that they have no standing to appeal the grant of SJ to their former co-defendants. On Jenkins’ appeal, however, SJ for University Associates is reversed to determine whether its negligence, if any, was as substantial factor in causing the injuries complained of.

Digested by John Hamlet
Sitlinger, McGlincy, Theiler & Karem