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ROGERS V. BELLUSCIO
TORTS: DAMAGES - REASONABLE AND NECESSARY MEDICALS
2006-CA-001804
AFFIRMING; KELLER, VANMETER, GUIDUGLI
NOT TO BE PUBLISHED: 104
DATE RENDERED: 10/19/2007
ELDER V. PERRY COUNTY HOSPITAL
CIVIL PROCEDURE: LONG ARM STATUTE JURISDICTION, MEDICAL NEGLIGENCE & INDIANA HOSPITAL
2005-CA-000591
PUBLISHED: VACATING AND REMANDING
PANEL: COMBS PRESIDING; ACREE, TAYLOR CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 09/14/2007
CA vacates and remands TC dismissals in these two appeals in this medical malpractice case.
CA holds that the TC has both personal and subject matter jurisdiction over PCMH, and the TC abused its discretion in dismissing PCMH on forum non conveniens grounds. Additionally, the TC improperly applied the doctrine of forum non conveniens in its dismissal of both defendants PCMH and Norton.
This case has a long and convoluted history and the opinion contains a timeline in an effort to clarify previous rulings. In 1999, the Elders took their 6-year-old son to Perry County Memorial Hospital (PCMH)for fever and nausea. The Elders lived in Hancock County, KY; PCMH is only 3 miles away in Tell City, IN. An ER physician failed to properly treat the child, his condition worsened, and he was transported to another hospital in Evansville, IN, where he died. They sued in 2001. PCMH and Norton (the management company) remain as defendants. In 2004, PCMH filed motions to dismiss on jurisdictional grounds and responses were filed. The Jefferson Circuit Court dismissed PCMH on the basis of forum non conveniens, citing the doctrine sua sponte without ever addressing the jurisdictional issues raised by the parties. In 2005, the TC amended its order to bar PCMH from raising a statute-of-limitations defense in any other action in any other venue.
The Elders and Norton appealled and, while the appeal was pending, the Elders filed suit in Indiana, deciding to litigate there. They sought to have Norton dismissed from the Kentucky suit as well on forum non conveniens grounds in order to litigate against both in Indiana. The TC dismissed on those grounds with the same statute-of-limitations defense prohibition as the PCMH order. Norton appealed this dismissal; the Elders filed an appeal challenging PCMH's dismissal in order to maintain the option of litigating against both defendants in a single action in Kentucky. The CA vacated the dismissals and remanded. PCMH sought discretionary review, which was granted, and the Supreme Court vacated the CA decision and remanded to the CA in light of Carrico v. Owensboro, 511 S.W.2d 677 (Ky. 1974).
CA holds that the TC has both personal and subject matter jurisdiction over PCMH, and the TC abused its discretion in dismissing PCMH on forum non conveniens grounds. Additionally, the TC improperly applied the doctrine of forum non conveniens in its dismissal of both defendants PCMH and Norton.
Digested by John E. Hamlet
Crystal balls went out with the carnies, along with tea leaves, Ouija boards, and other voodoo junk science attempting to read the minds of mankind and the future.
However, under the guise of junk science, insurance companies and others are using a questionaire to determine if claimants are "really hurt", faking, and malingering in an effort to discredit pain and suffering.
Basic fact of life is that pain is a subjective complaint. Many times common sense makes it readily apparent; othertimes it is just hard to guage the extent and severity such that the believability and verifiability rests in the credibility of the claimant.
Here is a story from the WSJ Blog entitled Test for Fingering Malingerers Comes Under Fire. Thanks to Finis Price at www.TechnoEsq.com blog for bringing this to my attention. In this story, the test went after PTSD complaints by a civilian contractor employee working in Afghanistan. Obviously, a psychiatrist and administrative law judge had no concept of the hell that can be encountered in combat AND combat support operations when you are exposed to death and dismemberment 24/7 from IED's and those who appear friendly (but are not). Stress can kill in ways not physical. I just watched a movie last night with Joseph Cotton, Ginger Rogers, and Shirley Temple, "I Will Be Seeing You" in which the shell shock or neuropsychological injuries from the soldier's side played a critical plot thread in the movie. Of course, I guess bayonet wounds and Iwo Jima are easier to accept as a basis for shell shock and emotional trauma than living under the threat of death from any number of sources all day and all night.
Here are some links on the MMPI-2™ Fake Bad Scale (FBS):
Enough of the emotional hyperbole on this topic, and a quick look at the facts. I am noting more and more insurance company doctors using what was once formerly acceptable orthopedic tests in the days before CAT scans, MRI's, EMG/NCV and other objectively verifiable tests as the basis of claims of inconsistency and malingering. For example, a straight leg raise sitting versus supine is the use of two legitimate tests which usually produce a consistent result, but not necessarily since the degree of pain and the symptoms are not always repeated.
Older othopedists and doctors from the days when a clinical diagnosis was more art than testing will know what I am talking about. Now we have "fake" tests such as a "patellar" shift of pinching the knee and asking if that hurts their back or some other part of the anatomy. Same goes for "pinching" the back.
One I have heard of is the formanal compression test of pushing down on the head which compresses the cervical spine and can cause flat out pain as well as pushing the nerves, followed by a cervical distraction test of lifting the head and relieving some of the pressure on the nerves. Some are now acting as if these tests are the keys to orthopedic malingering when once upon a time they were in the orthopedist's arsenal while forgetting the the results can be adjusted by the manner of administering the test.
Worse yet, many defense medical examiners do not consent to having the examination witnessed by a family member, nurse, or videotaped! That raises a red flag on the credibility of the tester and the results therefrom. Kentucky decisions on this topic have not been entirely favorable in a situation where the defendant insurance company get a trained interrogator with unimpeded access to a claimant without legal representation. This would never, ever occur at a deposition, but the medical profession gets a blank check.
And you can hardly blame the insurance industry when it comes to efforts at discounting pain, suffering, inconvenience and anguish (the noneconomical elements in a motor vehicle accident case; and not just "pain and suffering") when there are reported decisions in which fractured weight-bearing bones with bleeding, surgery and screws are considered to be accompanied by no pain and suffering (see, eg., http://162.114.92.72/COA/2004-CA-002226.pdf.
For example, here is a link to a text book on these tests at Special Tests for Orthopedic Examination, Third Edition. Other links of use (without any confirmation of the reliability of the site) can be found at:
Waddell signs are tests for potential non-organic causes of pain and have been around since 1980 or so. Of course, non-organic signs of pain is only a guess. I am always reminded that back in late 17th century medical doctors were bleeding George Washington with leeches as an acceptable medical practice.
If you want some scientific evidence taking issue with the Waddell signs, here is a synopsis found at the National Institute of Health search using PubMed referencing a study:
Is there a relationship between nonorganic physical findings (Waddell signs) and secondary gain/malingering?
Department of Psychiatry, University of Miami School of Medicine, Miami Beach, FL, USA. d.fishbain@miami.edu
This is a structured evidence based review of all available studies addressing the concept of nonorganic findings (Waddell signs) and their potential relationship to secondary gain and malingering. The objective of this review is to determine what evidence, if any, exists for a relationship between Waddell signs and secondary gain and malingering. Waddell signs are a group of 8 physical findings divided into 5 categories, the presence of which has been alleged at times to indicate the presence of secondary gain and malingering. A computer and manual literature search produced 16 studies relating to Waddell signs and secondary gain or malingering. These references were reviewed in detail, sorted, and placed into tabular form according to topic areas, which historically have been linked with the alleged possibility of secondary gain and malingering: 1) Waddell sign correlation with worker compensation and medicolegal status; 2) Waddell sign improvement with treatment; 3) Waddell sign correlation with Minnesota Multiphasic Personality Inventory validity scores; and 4) Waddell sign correlation with physician dishonesty perception. Each report in each topic area was categorized for scientific quality according to guidelines developed by the Agency for Health Care Policy and Research. The strength and consistency of this evidence in each subject area was then also categorized according to Agency for Health Care Policy and Research guidelines. Conclusions of this review were based on these results. There was inconsistent evidence that Waddell signs were not associated with worker's compensation and medicolegal status; there was consistent evidence that Waddell signs improved with treatment; there was consistent evidence that Waddell signs were not associated with invalid paper-pencil test; and there was inconsistent evidence that Waddell signs were not associated with physician perception of effort exaggeration. Overall, 75% of these reports reported no association between Waddell signs and the 4 possible methods of identifying patients with secondary gain and/or malingering. Based on the above results, it was concluded that there was little evidence for the claims of an association between Waddell signs and secondary gain and malingering. The preponderance of the evidence points to the opposite: no association.
Claimant acquires hepatitis A and is treated, but does not learn of the source or potential cause of his hepatitis under years later when attorney pursuing hepatatis claims against Red Lobster restaurant contacts him. Suit is filed years after the diagnosis but within a year of learning the cause. The statute of limitations is one year. Did he meet it?
Court of Appeals held he missed the one-year statute and filed late in GMRIK INC F/K/A GENERAL MILLS RESTAURANTS, INC. V. EMBERTON (2005-CA-002355.pdf) in a decision authored by Judge Vanmeter reversing and remanding a decision from the Warren Circuit Court, Judge Wilson. Judges Paisley and Knopf concurred with Vanmeter in this decision.
The COA began by noting the legal history of the discovery rule, and that it applied to tort actions for injury from latent disease caused by exposure to a harmful substance. However, the COA agreed with the restaurant that hepatitis A cannot be considered a latent disease since Appellee knew of his disease only a month after eating at the restaurant. The COA also notes Appellee's duty to reasonably investigate the source once he was given the diagnosis, and found a complete failure to do so even when the health department was offering him aid in this regard. At worst, the COA held that suit should have been filed within 1 year of the date of diagnosis since the time begins to run once the occurrence of an injury is known even if the source is not yet known.
UPDATED:
On May 4, the COA issued a non published decision in the non-medical negligence which put the accrual of torts for statutes of limitation purposes under the microscope with a similar result to GMRIKL v. Emberton:
Under this rule of law, Keith had one year from the time his injury (health/breathing problems) was or should have been discovered to bring suit against Epperson. While it may be true that Keith did file suit within one year of realizing that his health problems and the breathing of the fumes and soot allegedly caused by Epperson’s negligence may be related, that does not save the timeliness of the filing of his civil complaint. Keith had one year from the onset of his health problems to file the complaint.
While reviewing some old postings elsewhere on the net at Daubert on the Web , I found an interesting not-for-publication decision from the Sixth Circuit back in 2001 holding it was not an abuse of discretion to exclude chiropractor's testimony on the applicability of the American Medical Association Guidelines for Evaluating Permanent Impairment.
Taulbee v. Wal-Mart Stores, Inc., No. 99-6690 (6th Cir. Feb. 21, 2001) (unpublished). Jury finds for defendant in slip-and-fall after plaintiff's chiropractor is barred from testifying using AMA guidelines to describe plaintiff's impairment. Exclusion affirmed. District court did not abuse discretion in holding that testimony invoking AMA guidelines should come from licensed physicians, not chiropractors.
Of course, the application of this case would provide an interesting contrast to the recent SCOKY ruling that an injured plaintiff can fill the blanks in lost earnings once a expert (doctor) opines he or she has a permanent injury. See, SCOKY holds permanent injury warrants permanent impairment of earning power instruction and guidelines for required proof . Although SCOKY favored expert testimony on earnings, that does not mean that Daubert and the qualifications of the experts are to be thrown asunder.
A post at the Kentucky Law Review (aka Blog) re: Medical: Kentucky Web Site Lists Quality and Comparative Information on Kentucky Hospitals including cost information contains useful cost information for various procedures from state hospitals. You may have to do an internet search to find the "DRG" for your procedure but that takes less than a minute to give you a really good idea on the cost of certain surgical procedures. Of course, this will not include physician fees, physical therapy, follow up visits, presurgicals tests and consults, etc.
Claims by the defense and insurance companies that the claimant possesses "drug seeking" behavior are a common and aggressive defense. Medical and pharmacy records are the obvious sources of documentation. However, the KASPER report may also be noted in those records. Kentucky has recently passed legislation expanding the reporting requirements for KASPAR.
Although attorneys are not in the group to obtain a KASPER report (for obvious reasons), personal injury attorneys need to be alert to the term and its presence in patients' records.
What is KASPER? The Kentucky All Schedule Prescription Electronic Reporting System (KASPER) tracks controlled substance prescriptions dispensed within the state. A KASPER report shows all scheduled prescriptions for an individual over a specified time period, the prescriber and the dispenser. Enhanced KASPER (eKASPER) provides Web-based access to KASPER data.
Here are some KASPER FAQ's.
Here are the legislative changes:
2007 Senate Joint Resolution 48 (Upgrade, expand KASPER to other states)
[History, Amendments & Comments] [Text and Analysis]
Introduced by Sen. Ray S Jones, II on February 6, 2007, to direct the Cabinet for Health and Family Services to enter into reciprocal agreements with other states relative to the KASPER drug monitoring program and to upgrade the system to allow users real-time access to its data, with a report on progress toward these objectives being made to the Legislative Research Commission.
- Passed in the Senate (37 to 0) on February 20, 2007. [Vote Details and Comments]
- Received in the House on February 21, 2007.
- Passed in the House (99 to 0) on March 7, 2007, to direct the Cabinet for Health and Family Services to enter into reciprocal agreements with other states relative to the KASPER drug monitoring program and to upgrade the system to allow users real-time access to its data, with a report on progress toward these objectives being made to the Legislative Research Commission. [Vote Details and Comments]
- Received in the Senate on March 8, 2007.
- Signed by Gov. Ernie Fletcher on March 19, 2007.
Thanks to www.KentuckyVotes.org for this update.
This news story by Lisa Ungar with the Courier-Journal entitled Lawyers might quit hospital germ suits highlights that the course of litigation can change based upon the judge's rulings and the anticipated and escalating costs to prosecute the claim.
Contrary to the cry of tort reform advocates, medical negligence cases are not the litigation lottery they attempt to portray and are not purused cavalierly by the legal profession which is trying to help people who believe they have not received the quality care they have paid for and come to expect.
No one goes to the hospital expecting to pick up a fatal or near-fatal infection.
Antibiotic-resistance infections such as methicillin-resistant Staphylococcus aureus, or MRSA may not pose a threat to most healthy people, hospital patients with weakened immune systems are especially vulnerable to infection.
Here are some infection control links:
For insight into infection control in the Louisville area, you may wish to watch Louisville's WAVE3's "How You Can Protect Yourself from MRSA Infection" tonight Nov. 24, 2006 at 6:00 p.m.). Check their web site later (www.wave3.com) to see if the story is posted in audio-video format.
In this story, the lawyers appear to be withdrawing following evidentiary rulings by the judge and the added expense of prosecuting each claim (as much as $75,000).
Medical negligence cases are notoriously expensive to prosecute due to the need for many expert witnesses, witnesses from outside the state, and the hardnosed defenses from the hospital and doctors; not to mention jurors tend to lean in favor of the caretaker image. The image of a doctor in a white lab coat and stethescope still prevails over the image of the sport coated driver in a Mercedes. "Marcus Welby M.D." wins out over "Nip and Tuck" in the public's perceptions.
Lawyers might quit hospital germ suits (Courier Journal story)
The lawyers who filed dozens of cases against Jewish Hospital & St. Mary's HealthCare, claiming that patients were sickened or died because of infections caused by unsanitary conditions, say they are likely to withdraw from the cases.
The lawyers who filed dozens of cases against Jewish Hospital & St. Mary's HealthCare, claiming that patients were sickened or died because of infections caused by unsanitary conditions, say they are likely to withdraw from the cases.The attorneys met with about 50 clients and their family members this week to discuss the possibility of withdrawing from 76 of the cases.Although there have been no motions filed by the attorneys in court, lawyer Joseph White said, "that's where we're likely to get to."Michael O'Connell, another lawyer for the plaintiffs, said the discussion focused on "the feasibility of withdrawing given recent rulings and financial constraints" of the law firms, because each case could cost about $75,000 to try.O'Connell said a recent ruling in one of the cases would not allow them to have certain people testify, such as former workers and employees at Jewish Hospital and some expert witnesses."It was going to be exceedingly difficult to get our evidence of Jewish Hospital's habit and routine before the jury," O'Connell said.click on heading for rest of news story.
A vigorous cross-examination as to plaintiff's testifying experts medical license results in a reversal in this not for publication decision from the Court of Appeals, dated 10/27/2006.
Defendant doctor's expert testified regarding no deviation from the standard of care. Plaintiff's doctor was from out of state and not licensed in Kentucky, but he was licensed in Wisconsin and testified so. However, he made no reference during direct of his license in Minnesota in which he had voluntarily surrendered to it regarding allegations of improper sexual relations with a patient.
The defense counsel for Dr. Hodes went after plaintiff expert (Dr. Winters) on the licensure issue.
The Court of Appeals determined this was a collateral matter, and reversed and remanded for allowing such collateral and inflamatory cross examination.
This case was tried in Jefferson County before Judge Martin McDonald.
IRELAND V. HODES, MD.
TORTS: MEDICAL NEGLIGENCE (impermissible cross examination of expert)
2005-CA-002095
NOT PUBLISHED
DATE RENDERED: 10/27/2006
In this medical negligence claim, the plaintiff claimed cauda equine syndrome from the negligence of Dr. Hodes who performed two surgeries on her back.
It is undisputed that Ireland suffered cauda equina syndrome as a result of the spinal surgeries performed by Dr. Hodes. Dr. Hodes argues that this syndrome is a known risk of the surgery which Ireland acknowledged prior to surgery.
Plaintiff Ireland's expert Dr. Winter’s license status was not in dispute or issue and did not reflect on his knowledge or ability to testify about Ireland’s condition or Dr. Hodes’ alleged deviation from the standard of care. The improper cross-examination concerning the stipulation upon and surrendering of Dr. Winter’s medical licenses undoubtedly prejudiced the jury against Dr. Winter.
The prejudicial effect diminished the credibility of Dr. Winter’s testimony concerning Dr. Hodes’ negligence. The alleged negligence of Dr. Hodes was not within the purview of a lay person; rather, expert testimony was needed to establish the negligence and to aid the jury in determining whether Dr. Hodes was negligent.
By allowing such a collateral and inflammatory cross-examination of Dr. Winter, COA held the trial court committed reversible error.
