NPO, Proper demand for jury trial: Ratliff v. Pioneer Cleaning Services (COA, NPO, 10/5/07)
RATLIFF V. PIONEER CLEANING SERVICES
CIVIL PROCEDURE: DEMAND FOR JURY TRIAL MUST BE PROPER
2006-CA-001564
NOT TO BE PUBLISHED: 86
DATE RENDERED: 10/05/2007
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RATLIFF V. PIONEER CLEANING SERVICES
CIVIL PROCEDURE: DEMAND FOR JURY TRIAL MUST BE PROPER
2006-CA-001564
NOT TO BE PUBLISHED: 86
DATE RENDERED: 10/05/2007
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
Trial Practice Tips on Opening Statements from David Ball from the Illionois Trial Practice Blog
In the heat of a trial, you must preserve error by objecting, and objecting contemporaneously during opening and closing. Well, have fast is contemporaneous?
In Polk v. Greer, the COA in a Published decision on 4/28/2007, 2006-CA-000340, indicated the following:
COA held that an objection voiced less than one minute after the claimed error and before any other material phase of the trial had begun meets the “contemporaneous objection” requirement of CR 46. Indeed, the purpose of the contemporaneous-objection rule is to afford the trial court an opportunity to prevent or cure any error in a timely fashion. See Olden v. Commonwealth, 203 S.W.3d 672, 675 (Ky. 2006) (purpose of criminal analog of contemporaneous-objection rule).
And here, because Polk voiced his objection a mere 45 seconds after the error occurred and before the trial had actually moved on past its opening-statement phase, Polk's delay in no way impinged upon the trial court's opportunity to attempt curative measures. Consequently, we reject Greer's contention that Polk's mistrial claim is not preserved for review.
The Kentucky Court of Appeals ruled recently in a non-published decision that it was NOT palapale error when the trial judge did NOT bifurcate the claim for statutory bad faith (unfair claims settlement practices act) from the underlying UIM/underinsured motorist claim.
The case was American Commerce Ins. Co. v. Hall, 2005-CA-002183, COA, Apr. 6, 2007. Senior Judge Buckingham wrote this decision for a unanimous panel of Stumbo and Lambert.
The significance of this decision is that all too often, trial judges have a knee-jerk reaction to an insurance company's bifurcation motion. Well, bifurcation makes sense when you have a claim against the defendant driver tied in with a bad faith claim against either a third party or first party insurance company. It sounds fair to the defendant that the liability claim should be held in abeyance and should not unfairly affect the claim of liability and damages against him. Furthermore, the resolution of the underlying tort claim might even foreclose and preclude the bad faith claim.
However, bifurcation is problably not appropriate when there is no defendant driver in the suit and all the claims are against the insurer!
How and when does this happen. Well, it happened here. In the facts of this case, the plaintiff's settled with the liability carrier (with presumable compliance under the Coots v. Allstate procedure), then sued the underinsured motorist carrier (American Family) for UIM or first party insurance benefits AND for violations of the Unfair Claims Settlement Practices Act. Oddly enough, American Family did not answer, and liability was entered. The matter was later tried on damages on both the UIM and the UCSPA claims and American Family still was not in attendance and the verdict exceeded the policy limits.
Here. The claims against the defendant resolved, and the only claims left were those for UIM and unfair claims. When American Family learned of the verdict, it jumped in and tried to set it aside with one of the reasons being it was palpable error not to have bifurcated the contractual UIM claim from the tort of statutory bad faith.
American Family lost, and even though this set of facts is odd, the result is that bifurcating the contractual UIM claim from the UCSPA claim is not automatic and not palpable error to include thus giving judges some leeway in consolidating their dockets and putting pressure on the insurance companies not to deny, delay, and defend and maybe, just maybe, attempt to resolve these claims without the bifurcation card and its cocomitant expense of two, yes two, trials.
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.
