Kentucky Tort Report (COA) for Sept. 28, 2007 (2007:47)

Kentucky Tort Report (COA) for Sept. 28, 2007 (2007:47)

Published Decisions - COA

CRAWFORD V. PITTMAN
CIVIL PROCEDURE:  DEFAULT JUDGMENT
2006-CA-001604
PUBLISHED: VACATING AND REMANDING
PANEL: NICKELL PRESIDING; STUMBO AND WINE CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 09/28/2007

Plaintiff filed suit for various causes of action, and Defendant's attorney filed an answer. Trial court (TC) entered an order setting a trial date for 11/15/05. On 06/17/05, defense counsel moved to reassign the trial date. On 06/28/05, two new attorneys filed a motion to enter appearance as counsel in substitution of previous defense counsel. None of the three defense attorneys appeared at motion hour on this motion, and the TC remanded it due to counsels' non-appearance. On 11/2/05 and 11/8/05, Plaintiff filed his witness list and proposed jury instructions, but he did not effectuate service on any of the three attorneys or on the Defendant. On 11/15/05 the case was called for trial, and the TC noted that neither the Defendant nor any of his counsel appeared. Upon Plaintiff's motion, the TC struck the Defendant's answer, granted a default issue on liability and allowed Plaintiff to present evidence as to damages. Three months later, the TC entered a written judgment in favor of the Plaintiff for some $62K. The second defense counsel moved to set aside the default judgment under CR 55.01, and the TC denied it on the basis of CR 37.02(2)(c). Defense counsel moved to alter, amend or vacate the denial, which was again denied, and this appeal followed.

Three errors alleged:

1. TC erred in awarding default judgment in contravention of CR 55.01, making judgment void ab initio. CA noted the standard of review on default judgments is abuse of discretion, but that where sanctions are imposed, as here, the discretion of TC is not unlimited. It must be supported by a finding of bad faith or willfulness on the part of the party being sanctioned. In the CAs review of a TC's imposition of sanctions, it must consider (a) whether the opponent was prejudiced by dismissed party's actions; (b) whether dismissed party was given a warning that dismissal could result from failure to cooperate and (c) whether other, less drastic sanctions had previously been imposed or considered prior to dismissal. Greathouse v. American Nat'l Bank & Trust Co., 796 S.W.2d 868 (Ky. App., 1990). The CAs found that the record had no evidence of any such findings; CA finds the TC abused its discretion in granting the default. CAs also noted that the TC's reliance on CR 37.02(2)(c) as grounds for granting default, was misplaced, as that rule relates to sanctions available only when a party fails to obey an order tor provide or permit discovery. The rule does not indicate sanctions are available to a party who otherwise violates orders of the Court. CAs agreed with defense counsel that CR 55.01 applies to this situation.

CR 55.01 mandates tat notice of application for a default judgment must be given to alleged defaulting party at least 3 days prior to the heraing on the applciation if the alleged defaulting party has appeared in the action. There was no doubt that the Defendant did appear on this action earlier in its history, and CA held Defendant was therefore entitled to notice of application for default judgment. There being no such notice, the CA vacated it.

Though this holding was sufficient to vacate the default, the CAs discussed the remaining arguments.

2. CA noted that in TC's denial of post-judgment motions for relief, it indicated Defendant had failed to show presence of meritorious defense or good casue sufficient to satisfy the requirements set forth in CR 55.02 to set aside default judgment. However, CA held that as mandatory requirements of CR 55.01 were not present, the presence or absence of a meritorious defense is immaterial. Also, as default judgment was void as a matter of law, the TC had not discretion to exercise when ruling on motion to set aside judgment.

3. CA agreed with defense counsel that TC erred in holding damages hearing without first giving notice of same. In cases involving unliquidated damages where a party has made an appearance, the defaulting party admits liability but not amount of damages. As such, a separate hearing is required, and fundamental fairness requires the defaulting party be given notice of a damage assessment hearing before such is held. Because the Defendant had made an appearance, she was entitled to notice of the damages hearing, and the CAs held that even if it were not vacating the underlying default judgment, it woudl have been required to reverse the damages award for want of notice.

Digested by Cherry Guanieri

DAWSON V. JEWISH HOSPITAL
CIVIL: EXPERT WITNESSES, DISCLOSURES, VOIR DIRE
TORTS: LOSS OF CHANCE
2006-CA-001241
PUBLISHED: AFFIRMING
PANEL:  THOMPSON PRESIDING; MOORE, GRAVES CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 09/28/2007

This medical negligence claim arose from alleged negligent post-surgery care by the hospital's nursing staff. A jury returned a verdict in favor of Jewish Hospital and this appeal followed in which the appellant alleges the trial court: (1) erroneously excluded relevant and competent evidence concerning Mr. Dawson's bedsores; (2) denied the Dawsons' counsel an adequate opportunity to voir dire the jury; and (3) failed to tender a loss-of-chance instruction to the jury. The Dawsons also appeal from a post-verdict order requiring them to pay Jewish Hospital's expert witness fees. The appeals were consolidated. Finding no reversible error, affirmed'

Dawsons contend that Mr. Dawson experienced pain in his side. He went to Tri-County Baptist Hospital where a CT scan was performed which revealed a 6cm aortic aneurysm in his chest. Mr. Dawson was referred to Dr. Matthew Jung who reviewed the CT films and recommended surgery. He discussed with Mr. Dawson the potential complications from the surgery including paraplegia (paralysis) and death.

Twenty-one months after his initial diagnosis, Mr. Dawson again saw Dr. Lawson but refused a CT scan. Two days after seeing Dr. Lawson, Mr. Dawson's pain became so severe that he returned to Tri-County Hospital. While on the gurney, the aneurysm, which was by then 7.5cm, ruptured. He survived the rupture but was still in need of surgery. After he again refused, he was admitted to the hospital as a terminal patient.

Aware of the risk, Mr. Dawson elected to have the surgery.

Although vital signs were to be recorded every two hours, at 6:00 p.m., the flow sheet does not indicate any recorded vital signs for Mr. Dawson. However, shortly after 6:00 p.m., a nursing assistant drew blood for a glucose test and Mr. Dawson did not indicate that he had any problems. His blood pressure was continuously monitored at the nursing station.

Dr. Ganzel testified that even if the paralysis had been treated earlier, there was no chance of a reversal and success would be “highly unusual.” Dr. Bouvette also testified that the “late onset of paralysis has been known and accepted as a complication well into the second week following surgery.”

Dr. Luis Mispereta testified that although there have been a “few anecdotal reports” of reversal of paralysis caused by “compartment syndrome,” there has not been one instance when paralysis caused by a blood clot such as in Mr. Dawson's case has been reversed. Jewish Hospital also produced the testimony of Dr. Henry Garreston, a neurosurgeon, who testified that once Mr. Dawson was paralyzed, it was irreversible.

With regard to pretrial discovery and expert witnesses, the pretrial order clearly stated -  "There must be a literal compliance with the requirements of CR 26.02(4)(a)(i). A party must identify each person whom the party expects to call as an expert witness at trial, and state the substance of the fact and opinions to which the expert is expected to testify and a summary of the grounds of each opinion. . . . Failure to comply with the letter and spirit of the aforesaid civil rule may result in the suppression of the expert's testimony."

Despite the direct order of the court, outside the disclosure deadline, on December 5, 2005, the Dawsons attempted to supplement their expert disclosures to include expert opinions from Dr. Cowles and Nurse Batezel concerning bedsores and itemized medical expenses which included 53 providers different from those previously disclosed.

On December 20, 2005, the trial court sustained Jewish Hospital's motion to exclude any reference during the trial to bedsores.

Thus, if the bedsores were a natural consequence of the paralysis, Jewish Hospital cannot be liable for any damages incurred as a result of the bedsores; any error, therefore, was not prejudicial.

With regard to voir dire, the court permitted each party's counsel to question the jury and, at the close of Jewish Hospital's voir dire, counsel asked, without objection, two questions:

Defense Counsel: Does anybody here think lawsuits are driving up the costs of health care?

Defense Counsel: Does anyone here think that Kentucky is losing doctors as result of lawsuits?

The Dawsons contend that “approximately 50% of the jury panel raised their hands" in response to these questions; and Dawson'sr counsel's request to re-voir dire the jury panel was denied. Thus, they surmise, they “were left with a panel, 50% of which clearly indicated that they personally felt that the Dawsons' lawsuit would drive-up their health care costs and result in physicians leaving the state.”

The Dawsons did not object to a single voir dire question; did not challenge a juror for cause on the basis of bias, and, when asked if they accepted the jury, their counsel responded affirmatively. Any contention that the trial court abused its discretion when it denied the Dawsons the opportunity to have the last word in the jury selection process was waived.

The evidence in this case did not warrant (a loss of chance)...instruction ...under the loss-of-chance doctrine, the plaintiff must still prove that the defendant breached the applicable standard of care and the breach was a substantial factor in causing a diminished chance of recovery or survival from the underlying disease or injury.

Digested by Michael Stevens

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

MULLINS V. MIKE CATRON CONSTRUCTION CO.
WORKERS COMP:  Future Medical Treatment
2006-CA-002182
PUBLISHED: AFFIRMING
PANEL: THOMPSON PRESIDING; VANMETER, PAISLEY CONCUR
WORKERS COMPENSATION BOARD
DATE RENDERED: 09/28/2007

Medical benefits and University Evaluators - The Court of Appels held that an ALJ may refuse to grant future medical treatment in a case where he finds that no medical treatment is needed in the future. The COA distinguished recent Supreme court case law in FEI Installation v. Williams which held that an ALJ may not refuse to grant future medical benefits even if there is no permanent impairment, where a work related injury has been proven. The COA also held that the claimant failed to object to the appointment of Dr. Goldman as a University Evaluator under KRS 342.315. The Supreme Court in Morrison v. Home Depot had held that Dr. Goldman was not qualified as a university evaluator because he was merely a contracted evaluator and not an actual employee of a University.

Digested by Peter Naake
Priddy, Cutler, Miller & Meade

LUTZ V. ENERGY CONVERSION CORP.
WORKERS COMP:  Constitutionality of Pneumoconiosis statute
2006-CA-002628
PUBLISHED: AFFIRMING
PANEL:  BUCKINGHAM PRESIDING; HOWARD CONCURS; STUMBO DISSENTS W/SEP. OPINION
WORKERS COMPENSATION BOARD
DATE RENDERED: 09/28/2007

The claimant, a life long coal miner, challenged the clear and convincing burden of proof to overcome the consensus of a panel of experts, who found that he did not suffer from pneumoconiosis. The Court of Appeals rejected the argument, holding taht the statute reasonably classifies pneumoconiosis claims differently from traditional injury claims. Stumbo dissents, as she would hold that the statute denies equal protection to miners with this type of disease.

Digested by Peter Naake
Priddy, Cutler, Miller & Meade

Not Published Decisions

JONES V. KY. BOARD OF CLAIMS
BOARD OF CLAIMS:  CLAIM FOR UNNECESSARY FORCE OR VIOLATE PER KRS 431.025
2006-CA-002157
NOT PUBLISHED: 96
DATE RENDERED: 09/28/2007

BONNER V. COM.
CIVIL: JURISDICTION, NOT LOST ON TRANSFER
2006-CA-001226
NOT PUBLISHED: 73
DATE RENDERED: 09/28/2007