TORT REPORT – CIVIL, TORTS, INSURANCE CASES.

COA 2010 Minutes July
16,
2010 (Nos. 673-701)

PUBLISHED DECISIONS.

673. MEDICAL NEGLIGENCE; EMTLA
THOMAS (LARRY
O'NEIL) VS. ST. JOSEPH HEALTHCARE, INC.
OPINION AFFIRMING IN
PART, REVERSING IN PART AND REMANDING IN PART
WINE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND DIXON (CONCURS)
2007-CA-001192-MR
2007-CA-001244-MR
TO
BE PUBLISHED
FAYETTE

WINE, JUDGE: In our prior opinion, we set
out the facts of this case as follows: The parties vigorously disagree
about the facts of this case. However, they agree that James Milford
Gray, age 39, arrived at the emergency room of St. Joseph Hospital (“the
Hospital”) on April 8, 1999, at 8:08 p.m. He was complaining of
abdominal pain, constipation for four days, nausea and vomiting. He was
seen by physician’s assistant Julia Adkins and Dr. Barry Parsley. He
received medication for pain and later received an enema and manual
disimpaction of his colon. Although lab tests were ordered, either Gray
refused to cooperate, or upon reorder, they were never conducted.
Likewise, no x-rays were conducted.

Gray was discharged at 12:40
a.m. on April 9, 1999. He was taken by ambulance to the homes of
different family members with whom he had previously stayed. However, no
family member agreed to provide a place to stay, so he was returned to
the Hospital. Upon his return to the emergency room, the Hospital made
arrangements for Gray to stay at the nearby Kentucky Inn. * * *

The
Hospital also points to the language in Martin which emphasized that
damages are available under EMTALA only when the personal harm is the
direct result of the hospital’s violation of the statute, not by any
harm caused by the medical negligence of personnel or the hospital.
Martin, supra, at 114-15. We disagree with the Hospital’s argument
interpreting this language to mean that claims under EMTALA and medical
negligence are mutually exclusive. The Court in Martin noted that proof
of damages was the same under all of the plaintiff’s theories. Since the
Court found that the hospital had met its duties under EMTALA, the
Court concluded the estate’s damages sounded only in negligence. Id. at
115.
Nevertheless, a failure to provide stabilization of an emergency
medical condition may amount to a violation of EMTALA and medical
negligence. See Cleland, supra, at 270 (6th Cir. 1990). To a certain
extent, the damages may overlap. Ideally, the instructions should
require the jury to set out which damages Are attributable to the EMTALA
violation and which damages are attributable to the medical negligence
claim. Likewise, the Hospital may have been entitled to somewhat
different instructions on the EMTALA claim based upon the analysis in
Martin. However, the Hospital has not requested a new trial, only a
finding that it was entitled to a directed verdict on the EMTALA claims.
Since we have found that the Hospital was not entitled to a directed
verdict on the EMTALA claims in light of Martin, we need not address
additional remedies which the Hospital has not requested.

Since
we conclude that the Supreme Court’s opinion does not affect the
Estate’s judgment and award of compensatory damages on the EMTALA claim,
we need not address the other issues raised in our prior opinion.
Rather, we will simply adopt those portions of our prior opinion
relating to the trial issues, the award of unliquidated damages, and the
award of punitive damages. We also restate our prior conclusion that
this matter must be remanded for a new trial on punitive damages.

Accordingly,
the judgment of the Fayette Circuit Court is affirmed in all respects
except for the award of punitive damages. While we affirm the trial
court’s order granting a new trial on the issue of punitive damages, we
also find that the Hospital was entitled to instructions properly
setting out the law as to ratification and the standard of proof.
Therefore, we remand this matter for a new trial in accord with this
Court’s prior opinion.

683. PROFESSIONAL NEGLIGENCE. EXPERTS.
CELINA MUTUAL
INSURANCE COMPANY VS. HARBOR INSURANCE AGENCY, LLC , ET AL.
OPINION
AFFIRMING
CLAYTON (PRESIDING JUDGE)
BUCKINGHAM (CONCURS) AND
CAPERTON (DISSENTS AND FILES SEPARATE OPINION)
2009-CA-000790-MR
TO
BE PUBLISHED
TRIGG

CLAYTON, JUDGE: The Appellant, Celina
Mutual Insurance Company, appeals from two orders of the Trigg Circuit
Court granting summary judgment in favor of Harbor Insurance Agency and
William Kearney (hereinafter the “Appellees”). In the first summary
judgment order, the trial court ruled that Appellant’s negligence action
required expert testimony to establish the professional duties of an
insurance agent. The trial court granted summary judgment in favor of
Appellees on Appellant’s negligence claims given that all discovery had
been completed, that the time had expired for all expert and trial
witness disclosures, and that Appellant did not have an expert witness.

In
the second summary judgment order, the trial court ruled that
Appellant’s indemnity claims must fail as a matter of law and granted
summary judgment in favor of Appellees. In this second summary judgment
order, the trial court also dismissed Appellant’s complaint, finding
that it had disposed of all of Appellant’s claims. Appellant argues that
the trial court wrongfully granted summary judgment in both orders;
Appellees disagree. After a thorough review of the record, the parties’
arguments, and the applicable law, we find that the trial court did not
abuse its discretion in finding that an expert witness was necessary to
establish an insurance agent’s professional duty, or in its
determination that Appellant’s indemnity claims must fail as a matter of
law, or in dismissing Appellant’s complaint because all of Appellant’s
claims had been addressed. Thus, we affirm the trial court.

NONPUBLISHED DECISIONS:

676. UNDERINSURED MOTORIST BENEFITS. CONFLICT OF LAWS. ARBITRATION.
COUNTRYWAY INSURANCE COMPANY VS. OAKES (MARGUERITE S.)
OPINION AFFIRMING
BUCKINGHAM (PRESIDING JUDGE)(SENIOR STATUS JUDGE)
CAPERTON (CONCURS) AND CLAYTON (CONCURS)
2008-CA-001498-MR
2008-CA-001557-MR 2009-CA-000958-MR
NOT TO BE PUBLISHED
TODD

BUCKINGHAM, SENIOR JUDGE: Countryway Insurance Company appeals and Marguerite S. Oakes cross-appeals from various orders of the Todd Circuit Court relating to an automobile accident that occurred in Tennessee and a dispute over underinsured (“UIM”) insurance coverage. For the reasons that follow, we affirm.

Countryway first argues that Tennessee law required arbitration of the UIM claims, that Oakes agreed to submit to arbitration, and that the trial court erred in requiring the parties to proceed to trial rather than submit the matter to arbitration. Similarly, Countryway argues that the trial court erred in failing to apply Tennessee law in determining the priority of the UIM coverages.7    This Court’s review of the trial court’s legal conclusions is de novo, and findings of fact are reviewed for clear error. Conseco Finance Servicing Corp. v. Wilder, 47 S.W.3d 335, 340 (Ky. App. 2001). We find no writing in the record evidencing an arbitration agreement between Countryway and Oakes. Rather, Countryway claims a right to arbitration pursuant to Tennessee statute.   Countryway argues that upon settlement of her claim against the underlying tortfeasor, Oakes expressly subjected herself to TCA § 56-7-1206, which further provides that once the insured has provided notice to the UIM carrier of settlement with the tortfeasor.  We fail to see how Tennessee’s procedural law on how to resolve insurance disputes has any impact on a Kentucky action involving a Kentucky resident suing on an insurance policy written and entered into in Kentucky. Kentucky courts assign great weight to the residence of the parties to an insurance contract. Bonnlander v. Leader Nat’l Ins. Co., 949 S.W.2d 618, 620 (Ky. App.1996). The Kentucky Supreme Court has taken the position that Kentucky law should apply as a matter of public policy, even where there is a conflicting final judgment from another state. United States Fid. & Guar. Co. v. Preston, 26 S.W.3d 145, 147-48 (Ky. 2000). 

Oakes has provided no evidence that the trial court abused its discretion and even admits in her brief that prejudgment interest is a matter of judicial discretion. Therefore, we affirm.

1 Retired Judge John W. Graves sitting as temporary Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of the
Kentucky Constitution.

ACREE, JUDGE: Highlands Hospital Corporation appeals the denial by the Floyd Circuit Court of its motions for judgment notwithstanding the verdict and for a new trial following a jury’s verdict holding the Hospital liable to its former employee, Lonna Castle, for wrongful termination and awarding her compensatory damages and equitable relief, and punitive damages. We reverse and remand the case for further proceedings.

679.  MEDICAL NEGLIGENCE. AGENCY. CHALLENGES FOR CAUSE. INSURANCE.
GRUBB (LINDA S.), ET AL. VS. NORTON HOSPITALS, INC. , ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
TAYLOR (CONCURS) AND STUMBO (DISSENTS IN PART)
2009-CA-000021-MR
2009-CA-000060-MR 2009-CA-000098-MR 2009-CA-000099-MR
NOT TO BE PUBLISHED
JEFFERSON

VANMETER, JUDGE: Linda S. Grubb and Laymon Grubb, co-administrators
of the estate of Krystal D. Meredith and grandparents and next friends
of Alyssa B. Meredith, a minor, appeal from a judgment entered by the
Jefferson Circuit Court in favor of Norton Hospital, Inc., Luis M.
Velasco, M.D., and James B. Haile, M.D. (sometimes collectively referred
to as “Appellees”). For the following reasons, we affirm. * * *

The
Grubbs brought suit against Appellees for wrongful death and loss of
parental consortium. The Grubbs alleged that Drs. Velasco and Haile were
negligent by failing to diagnose Meredith’s ruptured appendix prior to
her delivery, and that this delay in diagnosis caused her death. The
Grubbs further alleged that the nurses at Norton Hospital should have
recognized Dr. Haile’s responses to Meredith’s presentations were
inappropriate, and should have initiated a “chain of command” to
challenge his orders.

This matter proceeded to trial from
September 9, 2008 through September 19, 2008. At the conclusion of the
trial, the jury found in favor of Appellees. Thereafter, the trial court
denied the Grubbs’ motions for post-trial relief. This appeal
followed.  * * *

The Grubbs claim the trial court erred by failing
to strike three jurors
for cause. We disagree. * * * 

A.
Juror 215397. Our review of this exchange indicates that this juror
could remain unbiased so long as the doctor wasn’t involved as a party
to the action, which he was not. Rather, the doctor testified as an
expert witness for Appellees at trial.

Further, voir dire does not
clarify whether this juror is a current or former patient of the
doctor. However, this juror did indicate that she could remain fair and
impartial so long as the doctor wasn’t involved as a party. Thus, to the
extent to which the existence of bias was explored during voir dire,
the trial court did not abuse its discretion by refusing to strike this
juror for cause.

B. Juror 222785.  This juror disclosed during
voir dire that his son was employed as a
purchasing manager for
approximately ten years by Norton Healthcare, Inc., the parent
corporation of subsidiary Norton Hospital.1    This juror indicated that
he probably would have problems if the case was a “close call.”
However, when the entire jury venire was asked whether they could remain
fair and impartial, this juror did not indicate otherwise.  * * * In
this case, aside from the juror’s indication that he “probably” would
have a problem with a “close call,” our review of voir dire does not
reveal the existence of a “close relationship” between this juror and
Appellees so as to mandate excusal for cause. Rather, in terms of
degree, this juror’s relationship with Appellees was relatively distant,
considering that his son, rather than the juror, was employed by Norton
Healthcare and that Norton Healthcare was not a party to this lawsuit.
Accordingly, the trial court did not abuse its discretion by refusing to
strike this juror for cause.

C. Juror 201435. This juror stated
during voir dire that he practiced law and that his law firm does
medical defense malpractice and has done some work for Norton. However,
the extent and degree of this juror’s professional relationship with
Norton Hospital was not developed during voir dire; particularly, the
record does not reflect whether his firm has a current and ongoing
relationship with Norton Hospital and whether he personally worked on
any cases, or anticipated working on cases in the future. * * * In this
case, voir dire does not explore the nature and degree of this juror’s
relationship with Norton Hospital to the extent necessary to determine
whether bias exists. Specifically, the record does not disclose whether
this juror has a current relationship, or anticipated having a future
relationship, with Norton Hospital. Further, this juror did not
indicate, when questioned with the entire Venire, that he would be
unable to remain fair and impartial. Accordingly, the court did not
abuse its discretion by refusing to strike this juror for cause.

II.
Agency relationship. The Grubbs claim the trial court’s grant of
Appellees’ motion for
partial summary judgment on the issue of agency
was erroneous. We disagree. The court concluded that no agency
relationship existed between Dr. Velasco and Norton Hospital under the
terms of the Physician Employment Agreement (Agreement) executed between
Dr. Velasco and Community Medical Associates (CMA), another subsidiary
of Norton Healthcare.2    The court further determined that no agency
relationship existed between Dr. Haile and Norton Hospital or between
Dr. Haile and Dr. Velasco.

Moreover, from a policy standpoint
“[t]he implications of such an enlarged liability would tend to
discourage a physician from arranging to have another care for his
patients on his illness or absence and thus curtail the availability of
medical service.” Graddy v. New York Med. Coll., 19 A.D.2d 426, 430, 243
N.Y.S.2d 940, 944-45 (N.Y. App. Div. 1963).
In this case, the
evidence does not establish that Dr. Velasco exercised any actual or
legal control over Dr. Haile, negligently referred Meredith to Dr.
Haile, or participated in any “joint diagnosis” of Meredith. Upon
consideration of persuasive authority addressing this issue and the
policy concerns involved, we conclude that the trial court did not err
by determining that no agency relationship existed.

III. Liability
insurance The Grubbs contend the trial court erred by sustaining
Appellees’
motion in limine to preclude evidence of Appellees’
malpractice insurance. We disagree. Here, given that the Agreement on
its face is between Dr. Velasco and CMA, and no agency relationship
existed between Appellees, we conclude that the court did not abuse its
discretion by determining that the Agreement’s provision relating to
malpractice insurance was prohibited by KRE 411. Nonetheless, even if
the evidence was relevant, the court properly engaged in a KRE 403
balancing test analysis and did not abuse its discretion by concluding
that the probative value of its admission was outweighed by the risk of
undue prejudice.

699. WORKERS COMP
GSI COMMERCE SOLUTIONS VS. GORDON (TAMMY), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)(SENIOR STATUS JUDGE)
2009-CA-002270-WC
NOT TO BE PUBLISHED
WORKERS' COMP

NICKELL, JUDGE: GSI Commerce Solutions (GSI) has petitioned for review of an opinion of the Workers’ Compensation Board (Board) entered on November 6, 2009, which affirmed the Administrative Law Judge’s (ALJ) May 15, 2009, opinion, order and award of benefits to Tammy Gordon. We affirm.

701. WORKERS COMP
DEWBERRY (BILLY) VS. TRADEWINDS TRANSIT, INC. , ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
ACREE (CONCURS) AND LAMBERT (CONCURS)(SENIOR STATUS JUDGE)
2010-CA-000442-WC
NOT TO BE PUBLISHED
WORKERS' COMP

STUMBO, JUDGE: Billy Dewberry appeals from an opinion of the Workers’ Compensation Board (hereinafter “Board”) which affirmed an opinion of Administrative Law Judge (ALJ) Grant Roark dismissing his claim upon a finding that his psychological condition was not a direct result of a physical injury. Dewberry was involved in a work-related motor vehicle accident in which he was not physically harmed. He argues however that the accident should be characterized as a physically traumatic event as a matter of law and that his workers’ compensation claim should be reinstated. He also argues that he did in fact sustain physical harm and that the ALJ used incorrect legal standards in his opinion denying his claim. We find no error in the opinions of the ALJ and Board and affirm.