Sept. 21, 2012 Court of Appeals Minutes — Nos. 813-842 (30 decisions; 13 To Be Published)

VANMETER, JUDGE: Joseph Casey appeals from the Kenton Circuit Court judgment convicting him of theft of motor vehicle registration plate (renewal decal), a class D felony; theft of motor vehicle registration plate, a class D felony; theft by unlawful taking under $500, a class A misdemeanor; and persistent felony offender (“PFO”) in the first degree. The court sentenced Casey to fifteen years’ imprisonment, in accordance with the jury’s recommendation. For the following reasons, we affirm.

The primary question on appeal is whether the purported attorney-in-fact of an incompetent adult, ostensibly appointed by the incompetent person’s parents, had actual or apparent authority to enter into an arbitration agreement on her behalf. If not, the question becomes whether the incompetent adult’s estate can be estopped from arguing the arbitration agreement was invalid. Because we conclude that no person possessed actual or apparent authority to contractually bind the incompetent adult and that her estate cannot be estopped from arguing the actions of the purported attorney-in-fact were ineffectual, we affirm the order of the circuit court denying the appellants’ motion to dismiss.1

DIXON, JUDGE: R. Julius Craig appeals from a final judgment of the Hardin Circuit Court, which resolved a dispute over an attorney fee contract in favor of Nena Kulka, Craig’s former client. Because we conclude Craig failed to comply with the minimum standards of CR 76.12, we grant Kulka’s pending motion to dismiss this appeal.

In this case, we have a clearly deficient appellate brief tendered by an attorney, on behalf of an appellant who is also an attorney. Kulka moved to dismiss the appeal due to Craig’s inability to comply with the civil rules; likewise, we are mindful that a panel of this Court previously ordered Craig to file a brief that substantially complied with CR 76.12 or risk dismissal of the appeal. After careful consideration, we are satisfied that Craig’s brief cannot reasonably be viewed as substantially compliant with CR 76.12; consequently, we believe it is appropriate to grant Kulka’s motion to dismiss the appeal.

For the reasons stated herein, we hereby ORDER that Kulka’s motion to dismiss the appeal is GRANTED.

KELLER, JUDGE: Marc Buchanan (Buchanan) appeals from a judgment of the Fayette Circuit Court convicting him of first-degree assault, first-degree fleeing or evading police, and tampering with physical evidence and sentencing him to a total of fifteen years’ imprisonment. For the following reasons, we affirm.

COMBS, JUDGE: Daniel Hempel appeals from the judgment of the Oldham Family Court entered in his case for dissolution of marriage. The judgment awarded Daniel and Karen joint custody of their minor children; set monthly child support; and divided the marital property and debts. After our review of the record, we affirm in part, vacate in part, and remand.

ACREE, CHIEF JUDGE: The narrow issue presented is whether either, or both, of the appellants, Dexter Coleman and Mark Cantrell, is entitled to qualified official immunity. We find Cantrell engaged in a discretionary act and, as a result, may qualify for official immunity. With respect to Coleman, we find he failed to comply with a ministerial directive but, because a genuine issue of material fact exists, summary judgment was premature. Accordingly, for the following reasons, we reverse the circuit court’s June 28, 2011 order denying appellants’ motion for summary judgment on immunity grounds and remand for additional proceedings.

THOMPSON, JUDGE: Deena Reichwein, individually, as Administratrix of the Estate of Andrew Reichwein, and next friend and guardian, of Alexis Reichwein, (collectively referred to as the Estate) filed this tort action against Jackson Purchase Energy Corporation (JPEC). The McCracken Circuit Court granted two summary judgments in JPEC’s favor and the estate appealed. The dispositive issue is whether JPEC is entitled to “up-the-ladder” immunity provided for in Kentucky Revised Statutes (KRS) 342.690(1) and KRS 342.610(2).

COMBS, JUDGE: J.M. (Father) appeals from the order of the Jefferson Family Court that granted A.D.’s (Mother) petition to alter or amend a previous order. After our review, we vacate and remand.

Lisa filed suit against SJH, among others, asserting that SJH was vicariously liable for the aforementioned doctors’ alleged negligence under a theory of ostensible agency. SJH filed a motion for summary judgment on the basis that the “Authorizations and Consents” form signed by Bobby notified him that the doctors were not employees or agents of SJH and thus precluded its liability as a matter of law. The consent form contained the following provision:

8. I understand that physicians, surgeons, radiologists, pathologists, anesthesiologists, other doctors, and physicians assistants who may render care or services in my case are not employees or agents of Saint Joseph HealthCare, Inc. I acknowledge[,] authorize, and consent to each of the matters discussed above. I agree to abide by the rules of Saint Joseph HealthCare, Inc., cooperate with physicians and hospital personnel in my care and treatment, and observe the rights of other patients.

After reviewing the parties’ arguments and the record, the trial court granted summary judgment in favor of SJH, finding that Bobby’s signature on the consent form acknowledged that the physicians were not agents or employees of SJH so as to bar SJH’s liability as a matter of law under an ostensible agency theory.2 The court further found that the substance of Dr. Brian Heller’s3 affidavit, submitted by Lisa, concerned SJH’s standard of care involving its employees or agents, rather than the issue of its liability, and was irrelevant to Lisa’s claim

2 The court noted that the defendant physicians were employed or affiliated with Lexington Clinic, an independent group of multi-specialty providers with privileges to treat patients at SJH. The record shows that Lexington Clinic is a defendant in the underlying action.

3 The court’s order refers to an expert, but does not identify the expert by name. Our review of the record reveals Dr. Heller to be the named expert.

An apparent or ostensible agent is not an actual agent, but is “‘one whom the principal, either intentionally or by want of ordinary care, induces third persons to believe to be his agent, although he has not, either expressly or by implication, conferred authority upon him.’” Middleton v. Frances, 257 Ky. 42, 44, 77 S.W.2d 425, 426 (1934) (citation omitted). The general premise in Kentucky is that hospitals are not vicariously liable for doctors who are not its employees under an ostensible agency theory so long as the hospital makes the patient aware that the treating physician is not a hospital employee when the treatment was performed. See Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985). See also Floyd v. Humana of Virginia, Inc., 787 S.W.2d 267, 270 (Ky.App. 1989) (medical malpractice plaintiff could not hold hospital liable for alleged negligence of physician on ostensible agency theory where admission forms read and signed by plaintiff indicated her knowledge that doctors were independent contractors and not agents of hospital, and no representation or action was made so as to induce plaintiff to believe that doctors were employees or agents of hospital); Roberts v. Galen of Virginia, Inc., 111 F.3d 405, 412-13 (6th Cir. 1997) (under Kentucky law, hospital is not liable under ostensible agency doctrine for alleged negligence of independent contractor physicians where hospital’s patient registration and authorization form alerted the public that its physicians are not its employees or agents), rev’d on other grounds, 525 U.S. 249, 119 S.Ct. 685, 142 L.Ed.2d 648 (1999); Vandevelde v. Poppens, 552 F.Supp.2d 662, 667 (W.D.Ky. 2008) (hospital not vicariously liable under Kentucky law for alleged negligence of physicians based on an ostensible agency theory where hospital’s consent upon admission forms alerted the public that its physicians were not its employees or agents); Johnston v. Sisters of Charity of Nazareth Health Sys., Inc., 2003 WL 22681562 at *3 (Ky.App. Nov. 14, 2003) (hospital not liable under ostensible agency theory where patient signed admission forms on six different occasions which explicitly stated that pathologists and physicians at hospital were independent contractors and not employees or agents of hospital).

In this case, the record reflects that on seven separate occasions, beginning in March 2005 and ending with a final admission in January 2007, Bobby signed an SJH form entitled “Authorizations and Consents.” This one-page form, which was identical in all material respects at each admission, is not complex and is not drafted in legalistic language. Paragraph eight of the form, immediately preceding his signature, informed him that “physicians, surgeons, radiologists, pathologists, anesthesiologists, other doctors, and physicians assistants who may render care or services in [his] case are not employees or agents of Saint Joseph HealthCare, Inc.” No evidence was presented to show that SJH represented to the public that the doctors working within the confines of the hospital were its employees or agents. Thus, as a matter of law, SJH cannot be held vicariously liable for the alleged negligence of the doctors under an ostensible agency theory.

The Appellants raise three issues: (1) because Mary’s injury and death were foreseeable, Barry had a duty to keep Geno’s loaded gun, to unload the gun, or to ask Geno to put the gun away; (2) the Mantooths had a special duty of care to protect Mary from Geno; and (3) the Mantooths are liable for aiding and promoting Mary’s death under KRS 411.150. Because there is some overlap in the analysis of these issues, we first generally address the law of negligence, then we separately address each specific issue.