Recent Case Law and Statutes Governing Malpractice in Kentucky
SUPREME COURT OF KENTUCKY PROVIDES GUIDANCE IN INFORMED CONSENT CASES
August 26, 2021
The patient was diagnosed with a kidney disease necessitating a kidney transplant. Interested in avoiding the need for lifetime immunosuppressant drugs following the transplant, the patient consented to participate in a phase 1 clinical trial which had as its goal avoiding a continuing regiment of immunosuppressant drugs. Shortly after participating in the clinical trial, the patient developed myelodysplastic syndrome (MDS), a rare form of blood cancer. The patient filed suit alleging that her consent to the medical treatment involved in the clinical trial was invalid. After eight years of discovery, the Jefferson Circuit Court found that the informed consent in the case complied with the Kentucky statute and granted summary judgment to the medical defendants. On appeal which finally reached the Supreme Court of Kentucky, that Court affirmed the Circuit Court’s dismissal of the case. In her deposition the patient testified that she was told that she could expect virtually no side effects and the worst-case scenario was that the clinical trial would not work and that the patient would need a traditional kidney transplant. However, a 16-page consent form signed by the patient stated that participation could result in a risk of “various cancers” and listed a multitude of risks and side effects. The Circuit Court found that the patient was given ample opportunity to review the form and consult with medical providers prior to giving consent. On appeal, the Supreme Court of Kentucky noted that “informed consent is a process, not a document.” The Supreme Court of Kentucky found that the patient had met with five different medical care providers to discuss the risks of the clinical trial. Although the Supreme Court of Kentucky noted that informed consent is a process, the Court found that the detailed informed consent form was highly relevant to its analysis. The Supreme Court placed special emphasis on the fact that the informed consent form had been approved by the FDA and the United States Department of Defense. The fact that MDS was not specifically listed in the consent form did not render the informed consent invalid.
University Medical Center, Inc. v. Shwab, 2019-SC-0641 (Ky. 2021)
SUPREME COURT OF KENTUCKY RULES THAT ROOT-CAUSE ANALYSIS REPORT CANNOT BE USED AT TRIAL FOR IMPEACHMENT PURPOSES
June 17, 2021
In this case, the patient underwent surgery for a torn labrum in May 2016. Though the surgery was successful, the patient suffered post-surgical complications upon being extubated. As a result of his difficulty breathing, the patient was admitted to the ICU. Over the next several days, he showed improvement and was transferred from the ICU to less intensive care. Shortly after his transfer, the patient pulled out his tracheostomy tube and arrested. Despite CPR being administered, the patient passed away. The patient’s Estate sued Jewish Hospital alleging medical negligence. During discovery, the Estate sought production of any “incident report, sentinel event report, root-cause analysis, or peer review” prepared in the aftermath of the patient’s death. The hospital produced multiple documents, including the root-cause analysis, subject to the terms of an agreed protective order. After the production of this report, Kentucky’s General Assembly amended KRS 311.377 clarifying that the evidentiary privilege created by the statute applied in “any civil action…including but not limited to medical malpractice actions.” The hospital filed a Motion In Limine to exclude the RCA from admission at trial. The trial court denied the Motion In Limine, ordering that the RCA could be used at trial “for the purpose of impeachment.” Upon a writ of prohibition, the Supreme Court of Kentucky held that the document was privileged and could not be used at trial. The Supreme Court of Kentucky held that the amendment to KRS 311.377 applied to the trial of the case even though it was not enacted until after the alleged malpractice had occurred and after the root-cause analysis had been produced in the litigation. The Supreme Court of Kentucky also held that the root-cause analysis document fell within the privilege statute. Jewish Hospital v. Jefferson, 2021 WL 2603413 (Ky. 2021).
USE OF PEREMPTORY STRIKES TO REMOVE TWO PERSPECTIVE BLACK JURORS FROM THE JURY PANEL
March 5, 2021
In this case, a patient was treated by a neurosurgeon, Dr. Van Horne for idiopathic Parkinson’s disease. Dr. Van Horne surgically implanted a deep brain stimulator and the patient claimed to have sustained personal injuries as a result of this procedure. At the conclusion of the medical malpractice trial, the jury returned a verdict in favor of Dr. Van Horne. On appeal, the patient argued that Dr. Van Horne should not have been allowed to use peremptory strikes to strike two black jurors from the case. Defense counsel stated that the jurors were stricken due to body language and that they never answered a question during voir dire. Defense counsel also stated that both jurors were young, while the defense wanted older people on the jury. On appeal, the Court of Appeals of Kentucky set forth a 3-part Batson test for determining whether there was discrimination in jury selection. The Court found that there was no error in the jury selection as there was not any evidence of racial motivation, especially in light of the fact that there were three other black jury panel members who were not the subject of peremptory strikes by defense counsel. Clapp v. Van Horne, 621 S.W.3d 159 (Ky. App. 2021).
JEWISH HOSPITAL WAS NOT LIABLE FOR DOCTOR’S ALLEGED NEGLIGENCE
UNDER THEORIES OF VICARIOUS LIABILITY OR OSTENSIBLE AGENCY
April 16, 2021
The patient underwent open-heart quadruple bypass surgery at Jewish Hospital. During the
operation surgical sponges were used to control the bleeding around the heart. As it turns out two surgical sponges were not removed from the chest cavity which caused significant permanent
injury. The patient sued Jewish Hospital and others but initially failed to name the radiologist who had failed to see the sponges visible in medical imaging and then could not sue that radiologist due to the statute of limitations. The circuit court granted Jewish Hospital’s motion
for summary judgment finding that the radiologist was not its actual or ostensible agent. The Kentucky Court of Appeals applied a nine-factor test to determine whether Jewish Hospital could be liable. The Court relied primarily upon the fact that Jewish Hospital did not control the radiologist’s work and as a result concluded that the hospital could not be liable on a theory of
vicarious liability. With respect to ostensible agency the Court found that the hospital had presented forms to the patient, which he signed, informing the patient that patients would be treated by independent contractor physicians. Cundiff v. Cheng, 2019-CA-0374 (Ky. App. 2021).
CLAIM BARRED BY THE STATUTE OF LIMITATIONS
January 22, 2021
The Court of Appeals of Kentucky affirmed the trial court’s dismissal of a patient’s case based upon the statute of limitations. The case arose out of a surgery to repair the patient’s fractured
left arm. Following the surgery, a “non-union” of the humerus occurred and there was loosening of the hardware and a broken screw. Unfortunately, the patient did not file her case within one year of when the Court found the patient knew or should have known that there was a problem with the surgery. The Court declined to apply the continuous course of treatment doctrine to toll the statute of limitations because the initial surgeon had referred the patient to another doctor to correct the problem. This case highlights the necessity of consulting with an attorney as soon as
possible so that the statute of limitations will not bar a patient’s claim. Ordinarily a medical negligence action in Kentucky must be brought within one year of the date that the injury is, or with reasonable care, should have been discovered. KRS 413.140. While there are certain exceptions to this general rule, including the continuous course of treatment doctrine, it is recommended that patients contact an attorney as soon as reasonably possible after they learn that there may be a problem with the medical treatment they received. Karsner v. Craig, 2021 WL 223147 (Ky. App. 2021).
ARBITRATION AGREEMENT UPHELD IN MEDICAL NEGLIGENCE LAWSUIT AGAINST LONG-TERM CARE FACILITY
January 15, 2021
In an opinion which is not yet final, the Court of Appeals of Kentucky held that the son, as legal guardian for his mother who had been declared wholly disabled, had authority to bind the mother to an arbitration agreement with a long-term care facility. The Hardin Circuit Court initially
denied the facility’s motion to compel arbitration, but this was reversed on an appeal by the Court of Appeals of Kentucky. The Appeals Court held that the malpractice claim against the long-term care facility must proceed in arbitration rather than in the Circuit Court. Legacy Health Services, Inc. v. Jackson, 2021 WL 137772 (Ky. App. 2021).
DEFENDANT HEALTHCARE PROFESSIONALS ARE ALLOWED TO CONDUCT EX PARTE COMMUNICATIONS WITH TREATING PHYSICIANS OR OTHER
December 17, 2020
The trial court issued an order prohibiting all ex parte contacts by the defendant healthcare provider with other healthcare witnesses. The Supreme Court of Kentucky held that while no absolute right exists to conduct ex parte communications with non-expert treating healthcare professionals, no default restrictions, as a matter of Kentucky law and policy, limit them. The Supreme Court found that the order entered by the trial court was based solely on the trial court’s personal policy rather than the application of law to facts and as a result the ruling was
overturned. This ruling effectively allows defendant medical providers to have their attorney confer informally with coworkers inside their own practice group in order to be able to amount a defense to a medical malpractice action. Beck v. Scorsone, 612 S.W.3d 787 (Ky. 2020).
PATIENT FOUND TO HAVE BEEN PROPERLY INFORMED OF RISKS OF SLING SURGERY
November 13, 2020
A 52-year-old patient was treated by a urologist for complaints of urinary incontinence. Following a sling procedure the patient complained of pain and incontinence. It was eventually discovered that the mesh sling had eroded into the patient’s urethra and bladder requiring reconstructive surgery. The patient filed suit against the urologist generally alleging malpractice. The complaint did not explicitly reference informed consent, or inadequate consent. The Scott
Circuit Court granted the urologist’s motion for summary judgment finding that informed
consent had not been alleged and that the patient had signed an informed consent form acknowledging damage to the urethra/bladder as a risk of the sling procedure. The Court of Appeals of Kentucky held that an informed consent claim need not be specifically alleged in the complaint. However, the Court of Appeals affirmed summary judgment in favor of the urologist finding that the consent form adequately notified the patient that damage to the urethra was a risk of the surgery stating that the urologist’s “informed consent document warned of the exact injury patient unfortunately sustained as a result of the sling procedure.” Watson v. Landmark Urology, P.S.C., 2020 WL 6689565 (Ky. App. 2020).
THE KENTUCKY COURT OF APPEALS REMANDED MEDICAL MALPRACTICE DEFENSE VERDICT WHERE JUDGE DID NOT DISCLOSE THAT DEFENDANT DOCTOR WAS HER FACEBOOK FRIEND
September 18, 2020
This case arises where a patient experienced neck pain and dizziness at work and was treated at a family practice center by an attending physician. The attending physician diagnosed the patient with a muscle spasm. The patient died four days later from an aortic dissection. At trial, the jury
found in favor of the attending physician. The patient’s attorney filed a motion for a new trial
claiming that the presiding judge should have recused herself. The Kentucky Court of Appeals eventually remanded the case for more information regarding the fact that the presiding judge and the defendant doctor were “Facebook friends”. The court in this case discusses the reality that in many small communities, judges know parties who appear before them and describes those circumstances in which a judge should be recused from presiding over a case. Andress v. St. Elizabeth Medical Center, Inc., 2020 WL 5587317 (2020).
EXPERT’S DEPOSTION TESTIMONY, WHICH CONTRADICTS THE EXPERT’S PRIOR REPORT, MAY BE GROUNDS FOR SUMMARY JUDGEMENT
September 4, 2020
In this case the patient’s expert in his sworn deposition testified that he could not say that the Dilaudid dosage administered by the defendant physician fell below the standard of care. In his
report the expert had stated that the dosage was a violation of the standard of care. The Court of Appeals of Kentucky affirmed the circuit court’s granting of summary judgment to the defendant
noting that a deposition is more reliable than a medical report. The Court concluded that an earlier unsworn medical report that contradicts later deposition testimony could not be submitted for the purpose of attempting to create a genuine issue of material fact to defeat a properly supported motion for summary judgment. Because the patient did not produce affirmative expert testimony that the defendant physician breached the standard of care, the trial court properly granted the defendant’s motion for summary judgment. Cooper v. Nair, 2020 WL 5268065 (Ky. App. 2020).
TRIAL COURT ERRED IN EXCLUDING ROOT CAUSE ANALYSIS, HOWEVER, THAT ERROR WAS HARMLESS
August 20, 2020
The 50-year-old patient in this case underwent an anterior cervical discectomy and fusion procedure at University Medical Center. Shortly after the operation the patient had difficulty
breathing and was taken back to the operating room where an intubation and tracheostomy was performed. Unfortunately, the patient suffered from anoxic encephalopathy, a brain injury caused from lack of blood flow. The patient passed away a few days later. During discovery in the malpractice action University Medical Center revealed the existence of a “root cause analysis
and action plan.” The trial court excluded the root cause analysis. After a defense verdict, the patient’s Estate appealed. The Supreme Court of Kentucky in discussing the subsequent remedial measure rule ultimately determined that the root cause analysis should not have been excluded as a subsequent remedial measure but found the error to be harmless as it was properly excluded under KRE Rule 403 as being unduly prejudicial. The Supreme Court of Kentucky affirmed judgment in favor of the defendants. Thomas v. University Medical Center, Inc., 2020 WL 5103681 (Ky. 2020).
ONE-YEAR STATUTE OF LIMITATIONS WAS A BAR TO PATIENT’S CLAIM
August 7, 2020
The patient filed a complaint in Perry Circuit Court alleging that on October 13, 2014, she injured her knee when it was caught in a bed rail while she was a patient at Hazard Appalachian
Regional Health Care. The patient asserted that the injuries were caused by the improper positioning of the bed relative to the nurse call device and the bed control device. As it turns out,
the hospital produced evidence that the injury actually occurred on September 11, 2014, and, because the complaint was not filed until October 13, 2015, the patient’s claim was barred by the one-year statute of limitations. The patient argued that hospital had not documented in the medical records the injury and thus the hospital should be precluded from raising the statute of limitations as a defense to her claim. The Court of Appeals of Kentucky held that the patient should have known that the injury occurred on September 11, 2014 as such knowledge was memorialized in third-party medical records. The Court of Appeals of Kentucky held that the patient’s complaint was properly dismissed. Deaton v. Hazard Appalachian Regional Health Care, Inc., 2020 WL 4556047 (Ky. App. 2020).
BURDEN OF PROOF AS TO EMPTY-CHAIR DEFENDANTS
July 2, 2020
In this case the patient suffered a second degree burn on his left elbow as a result of a disposable metallic pulse oximeter left on his arm during an MRI. The patient developed an infection which
required two surgeries, including a skin graft. After a jury verdict in favor of the defendants the Court of Appeals of Kentucky discussed the requirements applicable to empty-chair defendants.
The Court of Appeals relied upon the prior cases of Savage v. Three Rivers Med. Ctr., 390
S.W.3d 104 (Ky. 2012) and CertainTEED Corp. v. Dexter, 330 S.W.3d 64 (Ky. 2010) for the proposition that “empty-chair defendants who have settled are to be treated no differently than participating defendants in regard to what must be proved to apportion fault against them. Though the empty-chair defendant will not actually be held liable in the trial, since it is literally
not on trial, a participating defendant must still prove liability on the part of the tortfeasor on to whom it seeks to shift some of the blame.” This means that in a malpractice any defendant
seeking appointment against an empty chair medical defendant must produce evidence that they violated the standard of care through expert witnesses.
Asher v. Anesthesia Associates, PSC, 2020 WL 4512820 (Ky. App. 2020).
COURT OF APPEALS EXPLAINS PROPER VENUE
June 12, 2020
When medical negligence is the alleged cause of an injury, venue is proper where the care was sought and the alleged breach and resulting injury occurred. In this case, the matter was complicated by the fact that four different doctors were involved in the patient’s care over an
extended period of time. Two of the doctors resided in and provided care to the patient in Jefferson County. Two other doctors resided in and provided care to the patient in Warren County. The patient filed suit in Jefferson County against the doctors who provided treatment there. Those Jefferson County doctors then filed a third-party complaint against the Warren
County doctors. The Warren County doctors argued they could not be brought into the Jefferson County action as venue would be improper. The Court of Appeals of Kentucky relied upon the Supreme Court case of Rose v. Sprague, 59 S.W.2d 554 (Ky. 1933) for the proposition that a plaintiff who has been treated for the same condition by various doctors could not join all the
doctors who provided care to him in a single action because the doctors resided and practiced in separate venues. The Court held that the plaintiff in the prior case simply could not force all
defendants into a single venue. Relying upon that decision, the Court of Appeals of Kentucky held that the Jefferson County doctors could not assert a third-party claim against the Warren County doctors because venue in Jefferson County against them was improper. The Appeals
Court ruled that the Circuit Court was correct to dismiss the third-party complaint.
Flynn v. Sheikh, 2020 WL 3124677 (Ky. App. 2020).
A PATIENT MAY NOT COMPEL A BOARD PHYSICIAN WHO REVIEWS PATIENT’S COMPLAINT OF SUBSTANDARD MEDICAL CARE TO ACT AS INVOLUNTARY EXPERT WITNESS IN MALPRACTICE ACTION
May 8, 2020
A patient brought a malpractice action against a surgeon arising from post-surgical complications. The patient attempted to use as an expert witness a doctor who was a contractor/consultant for the Kentucky Board of Medical Licensure who reviewed the patient’s allegations brought against the doctor before that agency. The patient attempted to subpoena the doctor from the licensure board as an expert witness. In a matter of first impression, the Court of Appeals of Kentucky held that civil plaintiffs are not entitled to compel the Board’s physician to act as an involuntary expert witness in the private civil action claim of medical negligence. Pringle v. South, 2020 WL 2296997 (Ky. App. 2020).
KENTUCKY SUPREME COURT ADDRESSES OSTENSIBLE AGENCY, THE STATUTE OF LIMITATIONS, AND THE CONTINUOUS TREATMENT DOCTRINE IN MEDICAL MALPRACTICE CASES
April 30, 2020
In this case, the patient initially sued the University of Louisville Hospital for medical malpractice where the patient suffered a severe category of vaginal tear during delivery, requiring surgery. After initially suing the hospital, the patient amended her complaint to add the two physicians who delivered her baby and initially repaired the laceration. Unfortunately, the
amended complaint was not filed within one-year of the delivery and the trial court dismissed the patient’s claims based upon the expiration of the one-year statute of limitations. In this case, the
patient brought medical malpractice claims against both delivery room physicians and the hospital where they worked as independent contractors. The Supreme Court of Kentucky discussed the application of the one-year statute of limitations to medical malpractice actions.
The Supreme Court held that the “continuous treatment” doctrine could not be expanded to prevent the statute of limitations from running on a patient’s malpractice claims while she was under the care, not just of the doctors who participated in the birth of her child, but of any physician at the same hospital. The Court also held that the hospital’s delay in producing medical records of the delivery of the patient’s child, and the voluminous and unorganized nature of the
hospital’s production, did not warrant equitably tolling the statute of limitations on a “fraudulent concealment” theory. The Court also held that the hospital could not be liable for the alleged
malpractice of the delivery room physicians under the theory of apparent or ostensible agency. In
that case, the Supreme Court of Kentucky found that the University of Louisville Hospital had informed the patient, through its consent forms, that physicians who provided treatment at the
hospital were not employees of the hospital. Sneed v. University of Louisville Hospital, 600 S.W.3d 221 (Ky. 2020).
JURY SELECTION IN A MEDICAL MALPRACTICE CASE
December 19, 2019
The Supreme Court of Kentucky discusses the procedure to be used in a medical malpractice
trial for striking jurors for cause. That medical malpractice case involved a patient who passed away due to complications following an open-heart surgery. In this case the Kentucky Supreme
Court reemphasized its ruling in Gabbard v. Commonwealth, 297 S.W.3d 844 (Ky. 2009) where it had previously held that in order to complain on appeal that a party was denied a preemptory challenge by a trial judge’s erroneous failure to grant a four-cause strike, the litigant must
identify on the strike sheet any additional jurors he would have struck. And, it also reaffirmed its ruling in King v. Commonwealth, 276 S.W.3d 270 (Ky. 2009) where the same court held that if the additional jurors a litigant would have struck as identified on a strike sheet did not ultimately sit on the jury a trial court’s error was effectively cured a litigant’s substance of rights would not
have been violated. The court went on to summarize its prior decision by holding that in order to preserve the argument that a trial court committed reversible error by failing to strike a juror for cause a litigant must (1) move to strike the problematic juror for cause and be denied to strike by the trial court, (2) the litigant must use a preemptory strike to remove the juror from the venire
and show in writing on the strike sheet that the preemptory strike was used for that juror, (3) exhaust all other preemptory strike. Next, the litigant is required to clearly write on his or her
strike sheet the juror she would have used to preempt or strike on had he or she not been forced to use the strike on the juror that he or she believes should have been struck for cause. Floyd v. Neal, 590 S.W.3d 245 (Ky. 2019).
JURY VERDICT AFFIRMED IN FAVOR OF PATIENT WHO FELL
October 18, 2019
A 72-year-old patient who was diagnosed with normal pressure hydrocephalus underwent
surgery where a shunt was placed to drain excess fluid from the patient’s brain. Following this surgery, the patient was transferred to a nursing home for in-patient rehabilitation. The records
from the facility noted that the patient was confused, needed maximum assistance when standing or sitting, was unable to balance without moderate to maximum assistance and had difficulty remembering. The patient was then transferred to Twin Lakes Regional Medical Center for
treatment of a urinary tract infection. The nursing staff concluded that the patient was a high fall risk patient. At the hospital, the patient was left alone on the bedside commode and fell and hit
his head. The patient suffered a subdural hematoma, lost consciousness, and eventually passed away. The jury returned a verdict in favor of the Estate, awarding $6,540 for past medical expenses, $50,000 for destruction of earning capacity and $150,000 for pain and suffering. Upon the hospital’s appeal, the award was affirmed. Grayson County Hospital Foundation, Inc. v. Kelsey, 2019 WL 5293738 (Ky. App. 2019).
EXPERT TESTIMONY NEEDED FOR EVERY ELEMENT OF CLAIM
August 29, 2019
In this medical malpractice action the patient alleged that a radiologist’s failure to diagnose the patient’s stroke after he underwent a cerebral angiogram resulted in greater injury than the
patient would have experienced with earlier intervention. In that case, the patient underwent an angiogram to assist with diagnosing the cause of the patient’s chronic headaches. The patient’s
expert criticized the radiologist failure to examine the patient when his symptoms were consistent with a stroke. However, the expert did not have any opinion as to how the stroke could have been limited through earlier intervention. The patient’s case was dismissed on summary judgment and this dismissal was affirmed by the Supreme Court of Kentucky. The patient
attempted to rely upon the doctrine of res ipsa loquitur which applies in cases in which the “common knowledge or experience of laymen is extensive enough to recognize or to infer negligence from the facts.” The Supreme Court noted that “the question is not simply whether time loss is brain loss.” Rather, the specific facts and circumstances play a significant role in determining whether the alleged negligent conduct was a substantial factor in the alleged injuries. “Despite public perception about timely intervention, the average lay person cannot properly weigh such complex medical evidence without the aid of expert testimony.” Ashland Hospital Corporation v. Lewis, 581 S.W.3d 572 (Ky. 2019).
A PARENT MAY NOT MAINTAIN A LOSS OF CONSORTIUM ACTION RELATING TO THE DEATH OF HER ADULT CHILD
July 19, 2019
A medical malpractice action was filed against Pikeville Medical Center arising out of the death of a 48-year-old disabled son. The mother’s loss of consortium claim was dismissed. On appeal, the Court of Appeals of Kentucky held that a parent’s loss of consortium claim is limited to the loss of minor children.
Potter v. Pikeville Medical Center, Inc., 2019 WL 3246494 (Ky. App 2019).
HOSPITAL WAS NOT LIABLE FOR FORMER PATIENT’S MURDER OF WIDOW’S HUSBAND
July 5, 2019
The widow of a murder victim filed a medical malpractice action against the University of Kentucky Medical Center arising out of the release of a former mental patient who was released approximately 44 days prior to the murder. The Court of Appeals of Kentucky noted that the common law has traditionally imposed no duty to control the conduct of others except in certain
circumstances. In this case, there was no indication that the murderer had communicated to the physician a threat of any kind regarding the murder victim. The Court of Appeals reasoned that under KRS 202A.400 a duty only arose when the patient has communicated to the mental health professional, directly or indirectly, by words or gestures, that he intended to commit an act of physical violence. The plaintiff could not rely upon common law principles of negligence by
asserting that the physicians deviated from accepted standards of professional care in treating the murderer for his mental illness. That duty was owed to the patient (the murderer) and was not a duty owed to the murder victim. Stanziano v. Cooley, 598 S.W.3d 82 (Ky. App. 2019).
SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO PHYSICIAN IN MEDICAL MALPRACTICE CASE
April 5, 2019
The patient brought a medical malpractice action against treating doctors alleging that their failure to timely diagnosis a blood clot deprived him of the opportunity to receive treatment that could have saved his hand from amputation. The written report of the patient’s expert was
forceful in establishing a causal nexus between the undisputed misdiagnosis and the amputations. However, his deposition testimony was less resolute and somewhat equivocal. Based upon this,
the circuit court granted the physician’s motions for summary judgment finding that causation had not been properly proven. The patient appealed and the Court of Appeals of Kentucky held
that materials issues of fact were created. The Court held that, “the fact that time was of the essence – coupled with a clear sequence of diagnostic errors – reinforces the existence of genuine issues of material fact sufficient to defeat a motion for summary judgment.” The Appeals Court vacated the order of summary judgment and remanded the case for additional proceedings. Richmond v. Hunt, 596 S.W.3d 103 (Ky. App. 2019).
EXPERT TESTIMONY REQUIRED WHERE FOREIGN OBJECT LEFT IN PATIENT
March 29, 2019
This case arose out of a cesarean section delivery of the patient’s twins. Several months later, the patient underwent gall bladder surgery and a surgery to remove an abdominal mass. During this
surgery, a foreign object was found inside the patient’s abdomen. The patient contended that the foreign object was left during the c-section procedure. The patient did not produce an expert witness but rather argued that a jury could infer the negligence of the healthcare provider during
the c-section. The Court of Appeals of Kentucky held that expert testimony was required to show a breach of the standard of care and the patient could not simply rely upon the doctrine of res
ipsa loquitur. Bowling v. Baptist Healthcare System, Inc., 2019 WL 1422564 (Ky. App. 2019).
SUMMARY JUDGMENT IN FAVOR OF NURSE REVERSED
February 1, 2019
In this case the patient went to King’s Daughters Medical Center for the delivery of her child. The delivery was not going well and the obstetrician elected to use a vacuum extractor. The nurse, without discussion, either handed the vacuum extractor to the obstetrician or laid it on the table. The obstetrician attempted to remove the child from the womb using the vacuum but was unsuccessful. It was then necessary to deliver the child by cesarean section. The child sustained severe and permanent brain injuries. The patient’s theory against both the obstetrician and the
nurse was that a vacuum extractor should not be used. The patient’s expert testified that the nurse, under the applicable standard of care should have withheld the vacuum from the obstetrician and if the obstetrician insisted on using the vacuum the nurse should have gone up
the chain of command as the nurse has a duty to the patient and unborn baby. The circuit court granted the nurse’s motion for summary judgment reasoning that it was speculative at to what the obstetrician would have done if the nurse had withheld giving him the vacuum. On appeal, the Court of Appeals of Kentucky reversed the Boyd Circuit Court’s granting of summary judgment finding that the outcome of the case may have been different if the nurse had withheld the vacuum from the obstetrician. This case highlights the duties of a nurse when the nurse disagrees with a physician’s orders. Knipp v. Ashland Hospital Corporation, 2019 WL 417132 (Ky. App. 2019).
EXPERT MUST ACTUALLY HOLD OPINIONS PRIOR TO DISCLOSURE OF EXPERT
December 21, 2018
This action involved a colorectal resection surgical procedure which required subsequent surgical intervention to address complications. The patient disclosed an expert witness and the anticipated testimony of said expert. However, the court found that at the time of the disclosure the expert had not even reviewed the medical records. The court granted the doctor’s motion for summary judgment for lack of an expert witness. On appeal, the Court of Appeals of Kentucky held that CR26.02 requires disclosure of facts already known and opinions already formed by the expert and not simply the anticipated facts or opinions. The Appeals Courts noted that expert opinions must be based on reasonable medical probability and not speculation or mere
possibility. The dismissal of the patient’s malpractice case was affirmed. Meade v. Dvorak, 571 S.W.3d 585 (Ky. App. 2018).
DEFENSE VERDICT IN FAVOR OF SURGEON AFFIRMED
December 21, 2018
The surgeon removed a percutaneous endoscopic gastrostomy (“PEG”) tube. The surgeon used the “cut-and-push” technique to remove the tube. Use of this method involves the surgeon pushing the tube back into the stomach to allow it to pass out of the body through a natural bowel movement. The patient suffered severe abdominal pain and the surgeon assured the patient
that the PEG tube had passed even though the patient reported not having had a bowel movement. The patient was eventually diagnosed with a small bowel obstruction and underwent surgery to remove the remainder of the PEG tube and a portion of her small intestine. The jury returned a verdict in favor of the surgeon. The patient appealed asserting that there was error in the jury instructions. The Court of Appeals of Kentucky found the instructions to be appropriate and affirmed the jury verdict. In this case, the plaintiff maintained that the trial court erred because it broke up a breach of duty and causation and to separate instructions each containing
an interrogatory to the jury. The plaintiff believed that this placed a higher burden on her and likely confused the jury. The court reemphasized a Kentucky law requires a use of “bare bones” jury instruction, leaving it to counsel to flush out the case. Olfice, Inc. v. Wilkey, 173 S.W.3d 266 (Ky. 2005). Nonetheless, even with bare bones instruction “All essential aspects of the law
necessary to decide the case must be correctly integrated into the instructions.” Sargent v. Shaffer, 467 S.W.3d 198 (Ky. 2015). In the end, the court found that in order to prevail on a claim for negligence, in a medical malpractice action, a plaintiff must prove duty, breach, causation, and injury. Grubbs v. Barboursville Family Health, 120 S.W.3d. 682 (Ky. 2003). While the trial court could have instructed the jury using a single instruction separating the elements of breach and causation it was not required to do so and the court found that so long as
the instruction correctly stated the law the trial court had the discretion to use the form it found most suited the case at hand. Compton v. Gonzales, 2018 WL 6721296 (Ky. App. 2018).
KENTUCKY SUPREME COURT RULES MEDICAL REVIEW PANEL ACT
November 15, 2018
The Kentucky General Assembly in its 2017 regular session enacted the Medical Review Panel Act, establishing a mandatory process to delay certain medical-malpractice claimant’s ability to
access immediately the courts of the Commonwealth by creating medical-review panels and requiring a panel’s opinion about the merits of the patient’s proposed complaint against healthcare providers before the patient may file suit. On November 15, 2018, the Kentucky Supreme Court held that the Kentucky Medical Review Panel Act was unconstitutional in that it
“delays access to the courts of the Commonwealth for adjudication of common-law claims.” The Court noted that Kentucky’s Bill of Rights, Section 14 of the Kentucky Constitution protects “the right of every individual in society to access a system of justice to readdress wrongs” and such protection “is basic and fundamental toward our common-law heritage.” The Kentucky Supreme Court held, “the entirety of Chapter 216C violates Section 14, and there is no set of circumstances…under which the Act would be valid.” Commonwealth of Kentucky v. Claycomb, 566 S.W.3d 202 (Ky. 2018).
PEER REVIEW PROCEEDINGS AND DOCUMENTATION ARE NO LONGER DISCOVERABLE IN KENTUCKY
July 14, 2018
The Kentucky General Assembly enacted KRS 311.377 which grants broad privilege protections to peer review proceedings and documentation. Effective on July 14, 2018, this statute extends privilege and confidentiality protections to “the proceeding, records, opinions, conclusions, and recommendations of any committee, board, commission, medical staff, professional standards review organization, or other entity” engaged in performing a designated professional review function. This statute applies to nearly all information arising from the retrospective review and evaluation of the competency of professional acts or conduct of healthcare personnel. The 2018
amendments legislatively overrule a long history of Kentucky law that denied privileged protections to healthcare peer review proceedings. Under the statute, patients in a medical malpractice action will no longer be able to discover whether hospitals or other review organizations have found their doctors to be at fault in their treatment of patients. KRS 311.377.
COURT OVERTURNS $18M JURY VERDICT AGAINST NURSING HOME
June 15, 2018
This case involved an 85-year-old patient who was a resident of a long-term facility who died in the nursing home. The patient’s Estate brought an action under the Resident’s Rights Act, KRS 216.515. The jury found that the nursing home’s breach of its duties was a substantial factor in
causing the patient’s injuries and hastened her death and awarded the Estate a total of
$18,000,000. On appeal, the Court of Appeals of Kentucky ruled that under the statute, a resident’s claim under the Act did not survive the resident’s death. The Court of Appeals did allow a retrial on liability and damages on the patient’s non-statutory claims. Jennings v. Berea Area Development, LLC, 2018 WL 2990896 (Ky. App. 2018).
APPEALS COURT REVERSES MEDICAL MALPRACTICE DEFENSE VERDICT WHERE MEDICAL RECORD NOT PRODUCED UNTIL THREE WEEKS BEFORE TRIAL
January 5, 2018
A patient brought a medical malpractice action against a surgeon, who performed hip
replacement surgery, alleging that her nerve palsy was the result of a second procedure she did not consent to that was done to correct a perceived leg length discrepancy. The patient’s leg was permanently paralyzed as a result of the nerve palsy. It was alleged that her leg was dropped in preparation for the second surgery, when the candy cane device used to stabilize her leg was improperly attached to the table and fell, pulling her leg with it. In that case, the defendant doctor waited until three weeks before trial to produce an office note stating, “the only thing that I can think of that may account for this would be that during the course of the procedure her leg did twist and fall while we were positioning her.” On the morning of trial, the patient’s counsel moved for a continuance of the trial based upon the late disclosure of the medical record. The trial court denied this motion and excluded all evidence pertaining to the leg drop incident. At trial, the jury returned an unanimous verdict in favor of the physician. On appeal, the Court of
Appeals of Kentucky reversed and remanded the case back for a new trial. Quattrocchi v. Nicholls, 565 S.W.3d 622 (Ky. App. 2018).
NEGLIGENT CREDENTIALING CLAIM NOT RECOGNIZED IN KENTUCKY BUT
ORDINARY NEGLIGENCE PRINCIPALS APPLY
November 2, 2017
In two different cases patients filed suit against hospitals that extended staffing privileges to
surgeons. The Supreme Court of Kentucky found that it would not recognize a new tort of
negligent credentialing. The Supreme Court reasoned that plaintiffs already have a means by which to recover against a hospital for allowing an incompetent physician to provide medical
care. This avenue of recovery is through the common law tort theory of negligence. “Hospitals are neither shielded from liability nor does the change in hospital management demand creation
of a new cause of action, specifically applying to hospitals in the credentialing of physicians.” The standard of care remains the objective, reasonable person (hospital standard). Just like in a
medical malpractice case, where plaintiff must present expert testimony regarding the standard of care and the breach thereof, the plaintiff carries the same burden in a negligence action against
the hospital. An action alleging the hospital’s own negligence in credentialing physicians is derivative from the negligence of the physician. Procedurally, if a claim against a physician is
dismissed, leaving only the claim against the hospital, the plaintiff still has to present evidence of the doctor’s negligence in order to prove causation in his or her case against the hospital. If a claim against the physician is not dismissed, best practice involves bifurcating the trials.
Lake Cumberland Regional Hospital, LLC v. Adams, 536 S.W.3d 683 (Ky. 2018).
JURY VERDICT AFFIRMED
April 28, 2017
The Estate of a deceased patient brought a medical malpractice action against Lake Cumberland Regional Hospital and a surgeon who performed the patient’s gastric bypass surgery and an
additional surgery after the patient experienced complications. The jury awarded the Estate $10,658,265.42 in compensatory damages. The jury allocated 60% of the fault to the hospital and 40% to Dr. Husted. Because the doctor was uninsured for some of the verdict, the Estate appealed the dismissal of claims against the hospital claiming that it should be vicariously liable for the doctor’s negligence. The trial court had granted summary judgment to the hospital on theories of actual agency, ostensible agency, and joint enterprise. The Court of Appeals of
Kentucky found that there were genuine issues of material fact and that the vicarious liability claims against the hospital should not have been dismissed. The Court of Appeals believed that there were genuine issues of fact regarding both actual agency and ostensible agency. The Court of Appeals did agree that the hospital and doctor were not engaged in a joint enterprise. Dixon v. Lake Cumberland Regional Hospital, LLC, 2017 WL 1533812 (Ky. App. 2017).
EXPERT TESTIMONY REQUIRED WHERE A PATIENT FELL FROM HOSPITAL BED
November 3, 2017
A patient brought a negligence action against the hospital, alleging that the hospital negligently allowed patient to fall from the bed on which all rails were not up as required by the patient’s care plan. The trial court dismissed the plaintiff’s case and granted the hospital’s motion for
summary judgment because the patient failed to disclose an expert witness to testify that the hospital breached the standard of care. The patient’s Estate did name three expert witnesses to
testify that the patient was incapable of climbing over the bed rails if they had been up. The Court of Appeals of Kentucky held that this was not a slip and fall case, but rather a medical malpractice case where expert testimony was necessary to prove a breach of the standard of care. Chamis v. Ashland Hospital Corporation, 532 S.W.3d 652 (Ky. App. 2017).
EVENT REPORT PREPARED BY UNIVERSITY WAS NOT DISCOVERABLE IN A MALPRACTICE ACTION BASED UPON THE PATIENT SAFETY WORK PRODUCT
October 30, 2017
The patient in a medical malpractice action subpoenaed a ten-page report from the University of Kentucky which report chronicled a “wrong-site” procedure. The University, acting on behalf of UK Healthcare Hospital asserted that the event report was privileged by the Patient Safety and Quality Improvement Act of 2005, 42 U.S.C. §299b-21 et seq. The Court of Appeals of Kentucky agreed that the report was privileged as patient safety work product was employed to improve patient healthcare generally and nationwide. The statutory scheme seeks “to encourage
the reporting and analysis of medical errors” a process known generally as root cause analysis. The Court, in a lengthy 43-page opinion analyzed the entire statutory scheme concluding that the
patient was not entitled to the report. University of Kentucky v. Bunnell, 532 S.W.3d 658 (Ky. App. 2017).
LOST OR DIMINISHED CHANCE THEORY NOT RECOGNIZED IN EMOTIONAL DISTRESS CLAIM
September 15, 2017
The patient alleged a delay in the diagnosis of her breast cancer resulting in a less optimistic prognosis. The patient alleged extreme emotional distress and mental anguish resulting from the
increased risk of the reoccurrence of cancer. The patient offered expert testimony that the delayed diagnosis reduced her estimated five-year survival rate from 93% to 72%, with a
commensurate reduction in her cure rate dropping from 85-90% to 60%. The defendant doctor
offered proof that because the patient has had no reoccurrence of cancer since its initial treatment, her estimated five-year survival was 90%. The defendant doctor filed a motion for summary judgment arguing that the patient had not suffered any compensable injury under
Kentucky law. The Boone Circuit Court granted the doctor’s motion for summary judgment. On appeal the Court of Appeals of Kentucky affirmed this dismissal and held that even under claims
for emotional distress, a patient could not rely upon “lost or diminished chance theory.” Ingram v. Radiology Associates of Northern Kentucky, PLLC, 2017 WL 4082891 (Ky. App.
PATIENT WAS NOT ENTITLED TO A JURY INSTRUCTION ON “FRONT DESK” NEGLIGENCE
August 4, 2017
The patient had acute shortness of breath and chest pain and suffered cardiac arrest in the emergency room. Following the death, the patient’s Estate claimed that prior to her death numerous physicians failed to diagnose that the patient was suffering from chronic pulmonary
emboli that occurred due to her use of birth control pills. Following a multi-week-long trial, the jury found none of the medical professionals acted negligently. On appeal the patient argued that
the patient was entitled to a jury instruction for “front desk” negligence when the patient’s Estate argued that the front desk at a pulmonary care practice did not make a follow-up appointment for
the patient. The Court of Appeals of Kentucky found no error in the giving of the jury instructions. Mitchell v. Baptist Physicians Lexington, Inc., 2017 WL 3328111 (Ky. App. 2017).
WRONGFUL BIRTH AND/OR WRONGFUL LIFE CLAIMS NOT RECOGNIZED IN KENTUCKY
July 7, 2017
In this case a child was born with severe birth defects. Ultrasounds performed on the unborn child showed that the fetus had congenital anomalies. However, the mother was never informed about these congenital anomalies. The parents of the child filed suit alleging that as they never received this information, they were denied an opportunity to abort the pregnancy. The parents’
case was dismissed by the Warren Circuit Court based upon the prior Supreme Court decision in Grubbs ex rel. v. Barbourville Family Health Center, 120 S.W.3d 682 (Ky. 2003) which expressly rejected claims for “wrongful birth” or “wrongful life.” In addition to a medical malpractice claim, the parents asserted that the health center breached its contract. This claim was also dismissed because the court found there was not a written contract. The dismissal of the parents’ claims were affirmed by the Court of Appeals. Patel v. Game, 2017 WL 2889536 (Ky. App. 2017).
NURSE MAY NOT TESTIFY AS TO THE BREACH OF THE STANDARD OF CARE BY A PHYSICIAN
June 23, 2017
A patient filed a medical negligence action against an internist, an ENT specialist, and an orthopedist alleging they failed to timely diagnose her Hodgkin’s Lymphoma. The patient asserted that expert testimony was unneeded as a lay person could easily recognize the negligence of these physicians. The patient also cited to an affidavit of a registered nurse as giving expert medical testimony. The Jefferson Circuit Court granted the physicians’ motions for summary judgment holding that the registered nurse was not qualified to testify as to the breach
of the standard of care of the physicians. This dismissal was affirmed by the Court of Appeals of Kentucky. Clines v. Susan E. Janocik, M.D., PLLC, 2017 WL 2705401 (Ky. App. 2017).
EXPERT NEEDED IN DENTAL MALPRACTICE CLAIM
June 16, 2017
During a dental surgery, the drill which the oral and maxillofacial surgeon was using broke and an approximately 10-mm-long fragment became embedded in the right side of the patient’s jaw. Because the plaintiff had failed to produce expert testimony as to the breach of the standard of
care and the resulting injury, the Court of Appeals of Kentucky held that the patient’s claims were properly dismissed. Phillips v. Cieslak, 2017 WL 2608804 (Ky. App. 2017).
EXPERT NOT NEEDED IN AN INFORMED CONSENT CASE
June 15, 2017
In this case the patient underwent the placement of an inferior vena cava filter (IVC filter) prior to having gastric bypass surgery. Although the patient signed a very brief informed consent form, the patient testified at her deposition that no one explained the procedure to her, and no one told her that the filter could fracture and that fragments of the filter could break loose and travel
through her veins to effect vital organs. About 2 ½ years after the procedures were performed, the patient suffered severe chest pain and it was discovered that the IVC filter had fractured and
migrated to her lungs. Doctors could not surgically remove the IVC fragments. At trial, the patient’s attorney stated that they would not be presenting an expert witness because “you (the jury) can use your own common sense” to determine if the patient had been informed of the risks
associated with the procedure. Based upon this statement, the trial court dismissed the case due to a lack of an expert. On appeal, the Supreme Court of Kentucky held that the case should not have been dismissed because the patient’s own testimony regarding the informed consent could
establish lack of informed consent. The Court noted that under KRS Section 304.40-320,
Kentucky’s informed consent statute requires that a reasonable individual would have a general understanding of the procedure and the associated risks. Argotte v. Harrington, 521 S.W.3d 550 (Ky. 2017).
NEW STATUTE CREATES MEDICAL REVIEW PANELS IN KENTUCKY
March 16, 2017
Kentucky Gov. Matt Bevin signed into law a new statute (which has since been found
unconstitutional) that requires medical malpractice plaintiffs to obtain an opinion from a medical
review panel before their lawsuit can be filed in court. The Medical Review Panel Statute, KRS §216C.005, became effective June 29, 2017. The Medical Review Panel Statute applies to all lawsuits arising out of health care or
professional services that were, or should have been, provided by a health care provider to a patient. The bill defines the term “health care provider” to include individual providers, practice
groups, hospitals, nursing homes and agencies, as well as the administrators, officers, directors, agents and employees of any health care practitioner or entity. The bill covers all causes of
action arising out of the provision of medical care including negligence, wrongful death, informed consent, battery, breach of contract, and violation of a statute or regulation. Pursuant to the Medical Review Panel Statute, a patient who wants to sue for medical malpractice must first submit his case to a “medical review panel” for review on the merits. The parties can forego the panel process, but only if all parties to the proposed action agree. Claims
governed by a valid Alternative Dispute Resolution agreement are exempt from the requirements of the Statute.
To institute a medical malpractice action under the Statute, the patient must file a “proposed complaint” with the Commonwealth’s Cabinet for Health and Family Services. The parties must then appoint a three-person voting panel and an attorney chairperson. All health care providers
who are licensed to practice in any state are eligible to serve on the panel. When possible, the chosen panelists should be licensed to practice in Kentucky, and in the same specialty as the defendants. However, that is not guaranteed. Chosen panelists may be dismissed upon a
successful challenge, upon agreement of all parties, or for “good cause shown.” A panelist who fails to fulfill his duties may be removed and subjected to civil sanctions. Once the panel is set, the patient has 60 days to present his evidence in either written or electronic form. The provider then has 45 days to submit rebuttal evidence. These deadlines may be extended in the event of “extenuating circumstances.” The panel may request additional materials from the parties, perform its own research, and “consult with medical authorities.”
However, depositions may only be taken with the attorney chairperson’s approval.
Within 30 days of receiving the provider’s evidence, the panel must issue one of the following three “opinions” as to each of the providers: (1) the evidence supports the conclusion that the health care provider breached the applicable standard of care, and that breach was a substantial factor in producing a “negative outcome” for the patient; (2) the evidence supports a breach but
not causation; or (3) the evidence does not support a breach. After the panel gives its opinion as to each defendant, it is dissolved and shall take no further action.
This opinion must be issued within nine months of the panel’s formation. Thus, allowing three months for the panel to be formed, the entire process is designed to take less than 15 months from start to finish. However, given the relatively short (and unrealistic) time frames given for the presentation of evidence, one could expect the process to take anywhere from one to two years. Once the patient receives the panel’s opinion, he has 90 days to file a lawsuit—regardless
of the opinion issued by the panel. If the matter proceeds in the circuit court, the opinion of the medical review panel is not conclusive, but it may be admissible into evidence as an expert opinion subject to cross-examination. The panelists may also be called by either party to testify as witnesses in the court matter. KRS §216C.005 This statute was ruled unconstitutional by the Supreme Court of Kentucky on November 15, 2018 in Commonwealth of Kentucky v. Claycomb, 566 S.W.3d 202 (Ky. 2018).
PEER REVIEW DOCUMENTS FOUND NOT ADMISSIBLE
February 24, 2017
This case involved a patient who died following a colonoscopy. The patient’s Estate reached a settlement with two of the physicians involved in his care. The patient went to trial on claims against Jewish Hospital. At trial, the Jefferson Circuit Court found that peer review documents
should not be admitted into evidence. The jury found in favor of the hospital. On appeal the patient’s Estate argued that the trial court erred in excluding the peer review evidence. The Court
of Appeals of Kentucky held that the peer review documents were not relevant as to whether the hospital breached the standard of care and even if they were arguably relevant, they should be
excluded as being unduly prejudicial. Arnold v. Jewish Hospital & St. Mary’s Healthcare, Inc., 2017 WL 729171 (Ky. App. 2017).
FOOD AND DRUG ADMINISTRATION’S APPROVAL OF MEDICAL DEVICES FOUND NOT TO PREEMPT MEDICAL NEGLIGENCE CLAIMS AGAINST THE HOSPITAL
January 13, 2017
The patient in this case underwent a lumbar fusion surgery at Central Baptist Hospital. The case
involved the off-label use of a bone morphogenic protein (BMP) combined with a Peek Capstone surgical fusion cage. The Court of Appeals of Kentucky concluded that FDA preemption did not preclude the patient’s claims of lack of informed consent against the hospital. Cales v. Baptist Healthcare System, Inc., 2017 WL 127731 (Ky. App. 2017).
JURY VERDICT IN FAVOR OF PHYSICIAN AFFIRMED
January 13, 2017
This case arose out of complications suffered by a patient arising out of the implantation of a morphine pump. The patient eventually underwent the surgical removal of the catheter and pump. The Court of Appeals of Kentucky affirmed a jury verdict in favor of the treating
physician. Yonts v. Bux, 2017 WL 129066 (Ky. App. 2017)
EXPERT TESTIMONY REQUIRED IN MEDICAL MALPRACTICE ACTION
November 18, 2016
Expert witness testimony was required to prove the standard of care and breach thereof in a medical malpractice action involving an injury to a patient’s right distal ureter during a laparoscopic hysterectomy using a robotically assisted system. The patient’s attorney argued that the fact that the ureter had been cut during the surgery was sufficient to make out a case even without expert testimony. The Court of Appeals of Kentucky affirmed the trial court’s granting
of summary judgment to the physician. Brown v. Griffin, 505 S.W.3d 777 (Ky. App. 2016).
STATUE OF LIMITATIONS BEGAN TO RUN ON DATE OF LEG AMPUTATION
July 29, 2016
The court found that under the discovery rule the patient had actual or constructive knowledge of the injury triggering the running of the statute of limitations on the date the patient’s leg was
amputated. The continuous course of treatment doctrine did not toll the statute of limitations because the patient had seen other physicians. Mullins v. Graber, 2016 WL 4098760 (Ky. App. 2016).
SPECIFIC INSTRUCTION NEEDED ON INFORMED CONSENT
July 29, 2016
This case arose out of a cataract surgery. At trial, the Jefferson Circuit Court failed to instruct the
jury specifically on informed consent. The jury returned a verdict in favor of the
ophthalmologist. On appeal, the Court of Appeals of Kentucky held that the trial court erred because “in a medical malpractice action that includes a claim that the medical professional failed in his duty to obtain the patient’s informed consent, there must be a more specific
instruction.” Horsley v. Smith, 2016 WL 4098690 (Ky. App. 2016).
COURT-APPOINTED PSYCHOLOGIST WAS ENTITLED TO QUASI-JUDICIAL IMMUNITY
June 17, 2016
A psychologist who had been appointed by the Carter Circuit Court to conduct a child custody evaluation for a divorced couple was entitled to have a malpractice lawsuit against him dismissed on the grounds of quasi-judicial immunity. Feinberg v. Keeton, 493 S.W.3d 841 (Ky. App. 2016).
RISK MANAGER’S NOTES REGARDING INVESTIGATION INTO ALLEGED MALPRACTICE WERE DISCOVERABLE
June 16, 2016
Parents brought a malpractice action against obstetricians and hospital on behalf of their daughter in connection with the daughter’s brain injury incurred during delivery. The trial court
issued a Discovery Order requiring production of the hospital’s risk manager’s notes. These notes were used to prepare a root cause analysis for submission to a commission as part of the
hospital’s accreditation process. These notes were made before the hospital’s counsel had contacted her. As the notes were not prepared in anticipation of litigation, the Supreme Court of Kentucky held that the notes were discoverable. Frankfort Regional Medical Center v. Shepherd, 2016 WL 3376030 (Ky. 2016).
PUNITIVE DAMAGE AWARD AFFIRMED IN MEDICAL MALPRACTICE CASE
May 5, 2016
In this case the patient was a 39-year-old uninsured and indigent paraplegic who was discharged twice within a period of approximately 16 hours with severe abdominal pain, nausea, vomiting, and severe constipation. After the second visit, the hospital staff transported the patient in a wheelchair to a motel across the street and paid for his room. The hospital threatened to have the
patient arrested if he returned a third time. A few hours later the patient died. An autopsy revealed that the patient suffered from a duodenal peptic ulcer disease and that his death resulted
from purulent peritonitis caused by the rupture of a duodenal ulcer. The jury awarded compensatory damages in the sum of $25,000 and assessed punitive damages in the amount of $1,500,000 against the hospital. The patient’s claim was based upon violations of the Emergency
Medical Treatment and Active Labor Act. On appeal, the Kentucky Supreme Court affirmed the award of punitive damages. Saint Joseph Healthcare, Inc. v. Thomas, 487 S.W.3d 864 (Ky. 2016).
JURY VERDICT IN FAVOR OF UROLOGISTS AFFIRMED
April 8, 2016
The patient brought a medical-malpractice action against urologists who performed a
nephroureterectomy on left kidney, alleging that physicians injured patient’s right ureter and negligently spread the patient’s cancer. The patient later died. After a jury verdict in favor of the
urologists, the jury verdict was affirmed on appeal. Walker v. Metropolitan Urology, P.S.C., 2016 WL 1403480 (Ky. App. 2016).
HOSPITALS MAY BE LIABLE FOR NEGLIGENT CREDENTIALING
March 11, 2016
The Court of Appeals of Kentucky recognized a negligent credentialing claim against a hospital. “In the present context, corporate negligence ‘is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient’s safety and well-being while at the hospital.’” “Rather, the tort we are asked to recognize, and the cause of action from which Spring View and LCRH beg protection, would impose liability upon a hospital for its own decision to credential a physician the hospital knew or reasonably should have known was incompetent. Thus, hospitals would be liable for, and would insure themselves against, only their own negligence. This is not a novel or irrational concept, nor is it necessarily bad public policy. In fact, it is a standard to which our laws and courts hold other individuals, other professionals, and other corporation.” “We recognize negligent credentialing as a cause of action and as a means by which individuals can hold hospitals liable for the latter’s negligent extension or renewal of staff privileges and credentials to independent contractor physicians.” “The standard of care in a negligent credentialing claim is one of reasonable care under the same or similar circumstances.” “The hospital’s duty arises from the foreseeability of an unreasonable risk of danger to a patient stemming from the granting of staff privileges to doctors who create an unreasonable risk of danger to patients.” Spaulding v. Spring View Hospital, LLC, 2016 WL 929507 (Ky. App. 2016). On November 2, 2017, this ruling was reversed by the Supreme Court of Kentucky in Lake Cumberland Regional Hospital, LLC v. Adams, 536 S.W.3d 683 (Ky. 2017).
UNIVERSITY OF KENTUCKY HOSPITAL WAS ENTITLED TO SOVEREIGN IMMUNITY
February 12, 2016
This malpractice action arose out of pap smears performed on the patient. The Court of Appeals of Kentucky held that the University of Kentucky Hospital was entitled to sovereign immunity and was entitled to have the malpractice action against it dismissed. The patient argued that the hospital was in full competition with and performed the same functions as private hospitals. Even though the University of Kentucky participated in a medical malpractice compensation
fund, it was still entitled to immunity as it operated under the direction and control of central state government and was funded from the state treasury. Rangel v. Cornea, 2016 WL 552806 (Ky. App. 2016).
DISCOVERY RULE DID NOT TOLL STATUTE OF LIMITATIONS
January 8, 2016
The Court of Appeals of Kentucky, in discussing the one-year statute of limitations applicable to
medical malpractice cases, explained the discovery rule exception. The Court found that the exception did not apply and that the one-year statute of limitations barred the patient’s claim. The Court held that legal confirmation that one has been wronged is not necessary under the
discovery rule. The rule merely requires that one be aware of the facts sufficient to put her on notice that her legal rights may have been invaded and by whom; uncertainty about the legal
significance of those facts does not toll the limitations period. As the patient had sufficient facts to put her on notice that the physician may have invaded her legal rights, the patient’s claim was barred by the statute of limitations.
Wells v. Trover, 2016 WL 99824 (Ky. App. 2016).
PATIENT’S FAULT IN CAUSING INJURY IS NOT A DEFENSE IN MEDICAL MALPRACTICE
December 23, 2015
As a matter of first impression, the Court of Appeals of Kentucky held that a patient’s fault in causing his injuries that necessitated the medical treatment was not available as a defense to a
claim for medical malpractice.
Pauley v. Chang, 2015 WL 8488910 (Ky. App. 2015).
JURY VERDICT IN FAVOR OF HOSPITAL AFFIRMED
October 16, 2015
The patient’s Estate alleged that Central Baptist Hospital’s nurse caused the patient’s death by failing to monitor the glucose levels of hyperglycemic patients. The jury returned a verdict in
favor of the hospital which verdict was affirmed by the Court of Appeals of Kentucky.
Mitchell v. Baptist Healthcare System, Inc., 2015 WL 6082806 (Ky. App. 2015).
KENTUCKY SUPREME COURT ADDRESSES INFOMRED CONSENT IN MEDICAL MALPRACTICE CASES
August 20, 2015
The patient brought a medical malpractice action against an orthopedic surgeon, claiming that the surgeon failed to obtain her informed consent before performing a lumbar laminectomy and decompression involving the removal of bone and scar tissue from the patient’s lumbar spine,
complications from which caused the patient to suffer permanent paralysis. At trial, the jury found in favor of the surgeon. On appeal, the patient argued that the jury was improperly instructed regarding the informed consent statute. At trial, the surgeon conceded that he never used the terms “paralysis,” “incontinence,” “loss of bowel and bladder control,” or any variations thereof and explained the procedure to the patient. In instructing the jury on informed consent the
trial court simply stated that “it was the duty of the defendant to exercise the degree of care and skill expected of a reasonably competent physician specializing in orthopedic spine surgery under similar circumstances.” The patient argued that the instruction was deficient because it did
not fully incorporate all the elements of Kentucky’s Informed Consent Statute. Although jury instructions in Kentucky are traditionally “bare bones” the Supreme Court stated that “fundamental to the bare bones approach is that all the bones must be presented to the jury. All
essential aspects of the law necessary to decide the case must be integrated into the instructions.” The Kentucky Supreme Court remanded the case for another trial.
Sargent v. Shaffer, 467 S.W.3d 198 (Ky. 2015).
FAILURE TO TIMELY DIAGNOSE THYROID CANCER
August 14, 2015
In this case the Court of Appeals of Kentucky discussed the burden of proof in cases involving the failure to timely diagnose cancer. Patients may proceed on the theory that a failure to
diagnose cancer resulted in an aggravation of this previous existing condition by allowing the cancer to grow to a terminal stage. To survive summary judgment, the patient is required to present expert testimony to establish that the alleged negligence proximately caused an injury.
Because Kentucky has not adopted the lost chance doctrine, in order for a patient to recover the patient had to show within reasonable probability that the doctor’s failure to diagnose the thyroid cancer caused it to progress to incurability with a likely outcome that the patient will eventually die from this cancer. Expert testimony on proximate cause is only sufficient to meet the burden of proof if it is based “on reasonable medical probability and not speculation or possibility.” In this case, the patient failed to prove that the delayed diagnosis allowed her cancer to progress to a
terminal condition. However, the patient could proceed on claims that as a result of the delay she suffered prolonged neck pain and more extensive neck surgery. “A causable cognizable claim exists for a misdiagnosis leading to additional pain and suffering and a more invasive course of
treatment, regardless of the eventual positive or negative outcome for the patient.”
Douglas v. Advance Pain Medicine, P.S.C., 2015 WL 4776251 (Ky. App. 2015).
HIPAA DID NOT PROHIBIT PHYSICIAN’S EX PARTE INTERVIEWS OF PATIENT’S
TREATING PHYSICIANS AS PART OF THE INFORMAL PRETRIAL DISCOVERY PROCESS
June 11, 2015
In this case the trial court entered an order permitting counsel for a defendant doctor to contact the patient’s treating physicians ex parte as part of an informal pre-trial discovery process in a
medical malpractice action. The Supreme Court of Kentucky noted that litigants had historically been promoted to conduct ex parte interviews with fact witnesses and the court did not believe that Health Insurance Portability and Accountability Act of 1996 (HIPAA) precluded such
interviews if the doctor whose interview was sought agreed to meet with counsel. Caldwell v. Chauvin, 464 S.W.3d 139 (Ky. 2015).
EVIDENCE OF AN EMERGENCY ROOM PHYSICIAN’S PRIOR DISCIPLINARY PROCEEDING, AND THE FACT THAT AN EMERGENCY ROOM RESIDENT HAD NOT PASSED HIS LICENSING EXAMINATION WAS NOT ADMISSIBLE AND RELEVANT IN THIS MEDICAL MALPRACTICE ACTION
December 18, 2014
A wrongful death action was brought alleging failure of the emergency room physicians and radiologist to diagnosis and treat a ruptured aorta of a patient who presented to the emergency room following a motor vehicle accident. The Supreme Court of Kentucky held that the doctor’s prior licensure problems did not establish that he lacked the necessary medical knowledge to
comprehend and abide by the standard of care as the doctor’s licensure problems did not arise out of his treatment in an emergency room. Branham v. Rock, 449 S.W.3d 741 (Ky. 2014).
PHYSICIAN’S LICENSE STATUS WAS INADMISSIBLE IN A MEDICAL MALPRACTICE ACTION
February 20, 2014
This case was one of 49 lawsuits brought against a radiologist whose license was previously temporarily suspended. In this case it was alleged that the radiologist misread CT scans of her lungs which delayed the diagnosis of her lung cancer from which the patient ultimately died. The
Kentucky Supreme Court held that the radiologist alleged misreadings of other patient’s CT scans and the resulting restriction of his license was not admissible under Kentucky Rule of Evidence 404(b) which provides that “evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action and conformity therewith.” Burton v. The Trover Clinic Foundation, Inc., 423 S.W.3d 165 (Ky. 2014).
May 29, 2013
In this case, the Supreme Court of Kentucky held that a prospective juror whose son worked for the hospital’s parent corporation was properly stricken for cause. Similarly, the Supreme Court
held that the striking of a prospective juror whose children were delivered by the hospital’s expert witness for cause was also warranted, where the prospective juror stated that the fact that
the expert witness delivered her children may cause the juror to give more credence to that expert’s testimony. However, the trial court’s error in failing to strike that juror was found to be
harmless where the prospective juror was excused as an alternate before jury deliberations began. Grubb v. Norton Hospitals, Inc., 401 S.W.3d 483 (Ky. 2013).
LOSS OF DIMINISHED CHANCE DOCTRINE NOT RECOGNIZED IN KENTUCKY
June 22, 2008
The patient brought a medical malpractice action against physicians and others for their alleged negligence in failing to diagnose gastric cancer. The patient later died. In this case, the Supreme Court of Kentucky held that in order to prevail in a medical malpractice action, the patient’s Estate would only recover if they could show within a reasonable probability that the physician’s failure to diagnose the stomach cancer caused her death. The trial court did not instruct the jury on a lost or diminished chance of survival. If the jury had been allowed to find within a reasonable probability that had the patient’s cancer been diagnosed on her first visit to the physician her chance of recovery would have been 30%, but at the actual time her cancer was finally discovered her chance of recovery had become only 5%. Under the loss of chance doctrine, the patient’s Estate would then have been entitled to recover 20% of the total damages
resulting from the patient’s death. This recovery for loss of diminished chance was not allowed. Kemper v. Gordon, 272 S.W.3d 146 (Ky. 2008).