Recent Case Law and Statutes Governing Malpractice in Kentucky

Kentucky Law

COURT REAFFIRMS LAW DEALING WITH OSTENSIBLE AGENCY CLAIMS AGAINST HOSPITALS January 6, 2023 In this case the Court of Appeals found that where hospital staff are alleged to have been negligent or to have engaged in malpractice while acting in the scope of their employment, the Certificate of Merit statute applies. The court further found that the plaintiff’s filing of a declaration that merely stated her claim was not “likely” to required expert proof was not sufficient to meet the exception found in KRS 411. 167 (4) Mattingly v Jewish Hospital (Jan 6, 2023) Kentucky Court of Appeals not to be published.

COURT REAFFIRMS LAW DEALING WITH OSTENSIBLE AGENCY CLAIMS AGAINST HOSPITALS January 6, 2023 In this case a patient brought a malpractice claim against a physical therapist and the hospital where the treatment occurred based upon a vicarious liability/ostensible agency claim. The case was dismissed because no Certificate of Merit was filed. The plaintiff argued that because KRS 413.104 (1)(e) does not list “physical therapist” among the medical providers to which it applies no certificate of merit was needed. The court disagreed citing its previous decision in Evans v Baptist Health Madisonville, 643 SW 3d 105 (KY. App. 2002) that makes the requirement applicable to claims against all medical providers.

COURT REAFFIRMS LAW DEALING WITH OSTENSIBLE AGENCY CLAIMS AGAINST HOSPITALS January 6, 2023 In this case the patient has been treated by his cardiologist with whom he had an ongoing established doctor/patient relationship. The patient underwent a cardiac catheterization by his chosen physician and subsequently brought litigation against that physician and the hospital where his surgery occurred because during the operation he suffered an aortic valve dissection. The court dismissed the ostensible agency claim against the hospital and the Court of Appeals affirmed. While the hospital had not alerted the patient to the fact that his doctor was not an employee of the hospital the Court of Appeals nonetheless dismissed the ostensible agency claim because the patient did not identify any evidence which would have caused him to reasonably believe that the doctor was an employee of the hospital based upon the circumstances. The bottom line was that while the procedure was performed at the hospital, the evidence was clear that the hospital did not supply the doctor to the patient, but rather the patient had already selected the doctor based upon their ongoing established doctor/patient relationship. The court also found that the patient’s allegation that the hospital spoliated certain evidence could not function to save the patient’s vicarious liability claim against the hospital which would have to be grounded in an underlying medical malpractice claim against one of its employees. Because the hospital could not be liable for the doctors’ actions the court found that there was no evidence that the hospitals own employees were involved in in any care that involved malpractice. Fair v St. Joseph Health System Inc (Jan 6, 2023) not to be published.

KENTUCKY COURT OF APPEALS CLARIFIES INFORMED CONSENT CLAIMS BASED UPON THE WITHDRAWAL OF CONSENT July 29, 2022 The patient in this case went to Clark Regional Medical Center with a foreign object stuck in his throat. The ER physician recommended an endoscopy to remove the object. Although the patient initially consented to the operation, upon hearing the anesthesiologist “screaming and yelling” at the certified registered nurse anesthetist, the patient claimed that he attempted to withdraw his consent. The patient asserted that he “was attempting to advise that he did not wish to have the physician perform the procedure,” but was put under anesthesia. After dismissal of the patient’s complaint by the Clark Circuit Court, the Court of Appeals of Kentucky found that the patient “presents no evidence of any actions or words by the patient that revoked consent.” The Court held that withdrawal of consent after treatment was in progress requires (1) the patient to use clear language that leaves no room for doubt in the minds of reasonable men that consent was withdrawn and (2) revocation must be medically feasible without being detrimental to the patient’s health. Although the patient “might have thought about revoking consent, he did not use “clear language” that left no room for doubt that he was revoking that consent. In fact, he did not use any language to revoke consent, nor did he remove the mouth guard or indicate to ER staff that he was an unwilling participant.” White v Commonwealth, Anesthesia, 2022 WL 3008292 (Ky.App. 2022).

PATIENT FAILED TO PROVE THAT THE VASCULAR SURGEONS’ NEGLIGENCE CAUSED THE PATIENT’S AMPUTATION July 15, 2022 In this case the patient went to Dr. Khoudoud on April 3, 2019, with complaints of discoloration, numbness, and coldness in the left lower leg. Dr. Khoudoud ordered a CT scan which was then scheduled for April 16, 2019. The patient’s sister became concerned about the testing delay and contacted the physician’s office numerous times to get the test expedited. On April 9, 2019, the patient presented to the Emergency Room and his leg was required to be amputated above the knee. The patient filed suit against Dr. Khoudoud alleging that his treatment failed below the standard of care and that his negligent delay in scheduling a proper workup was a substantial factor in causing the amputation. During the deposition of the patient’s expert, the expert testified that he “did not know if this limb was salvageable from the beginning. I don’t know, because there was never any imaging done.” The expert concluded that any testimony that the patients leg was salvageable was “speculation.” Finally, the plaintiff expert conceded that if Dr. Khoudoud was not on call in the days between his examination of the patient and the amputation that it would be reasonable for Dr. Khoudoud to conclude that the doctor on call would handle any contacts from patients such as requests to expediate testing. After his expert testimony the patient then filed a motion to amend his complaint to add the on-call doctor as a defendant. The Boyd Circuit Court dismissed the patients’ complaints against both Dr. Khoudoud and the on-call doctor. This dismissal was affirmed by the Kentucky Court of Appeals. The Court of Appeals found that the patients expert failed to demonstrate causation within reasonable medical probability and it affirmed the dismissal of the patient’s amended complaint against the on-call physician based upon the running of the one-year statute of limitations. The patient argued that the “discovery rule” applied to extend the statue of limitations because he did not learn of the on-call physician’s role until the deposition of the patient’s expert of February 5, 2021. The Trial Court properly found that the patient actually learned of the on-call physician’s involvement on December 13, 2019, the date of Dr. Khoudoud deposition at which time he testified as to those persons who were on call in the days following the patient’s examination. The Court of Appeals held that the amended complaint against the on-call physician did not relate back to the filing of the initial complaint and that the statute of limitations barred the patient’s claim. West v. Abul-Khoudoud, 2022 WL 2760829 (Ky.App. 2022).

PATIENT NOT REQUIRED TO PROVIDE EXPERT MEDICAL TESTIMONY TO PROVE CAUSATION IN SIMPLE NEGLIGENCE CASE June 24, 2022 In this case the patient suffered a fractured ankle and underwent surgery to stabilize the joint. Three days after the surgery the patient went in for his first post-operative visit. He was placed in a wheelchair with his leg extended with no bend at the knee. An employee of St. Elizabeth Medical Center allegedly pushed the wheelchair into the check-in desk injuring the patient’s ankle. The patient then brought suit after needing another surgery to repair his ankle. In order to overcome summary judgment, the patient pointed to the eyewitness accounts given by his mother, fiancé, and the St. Elizabeth employee as to what had occurred. The Boone Circuit Court granted St. Elizabeth’s motion for summary judgment because the patient failed to produce an expert witness to opine that St. Elizabeth’s employees’ actions caused an injury to his ankle. On Appeal, the Court of Appeals of Kentucky reversed the Boone Circuit Courts order reasoning that this case was more akin to a motor vehicle accident as the patient was not claiming his injury resulted from the performance of a medical procedure. As the patient was claiming simple negligence on the part of the hospital’s agent no expert opinions were necessary so there was a jury question presented. Arnsperger v. Saint Elizabeth Medical Center, Inc, 2022 WL 2279901 (Ky App. 2022)

PATIENT REQUIRED TO SUBMIT SWORN TESTIMONY OR AFFIDAVIT IN OPOSION TO HEALTHCARE PROVIDERS MOTION FOR SUMMARY JUDGEMENT June 3, 2022 In this case the patient blamed healthcare providers for her renal and respiratory failure. The patient passed away from unrelated causes and her estate was substituted as the plaintiff in the litigation. The estate filed expert disclosures identifying a nurse as the only expert witness to testify on the patient’s behalf. The medical providers then filed motions for summary judgment due to the failure to disclose a qualified expert to offer an opinion as to medical causation. The estate argued that the nurse was qualified to explain the causation and could express her expert opinion based upon the medical and hospital records. The Oldham Circuit Court granted the medical providers motion for summary judgment finding that the patient had failed to produce evidence that the nurse was qualified to render an expert opinion. On appeal, the Court of Appeals of Kentucky held that when a defendant asserts that there is no qualified expert to prove a case, the plaintiff must respond with a countervailing affidavit of the expert’s qualifications in the necessary medical specialty. Although the plaintiff had produced a disclosure of expert witnesses, including a copy of the nurses curriculum vitae, the plaintiff failed to submit any affidavits or depositions to counter the medical providers motions. The Court of Appeals held that because the nurse had not sworn under oath that the contents of the CV were true, that summary judgment was appropriate. Pastor v Providence Healthcare of Richwood, LLC, 2022 WL 1814978 (Ky. App. 2022)

PATIENT WAS NOT ALLOWED TO PUT ON EVIDENCE THAT HE LACKED HEALTH INSURANCE MAY 6, 2022 In this case the jury found in favor of a podiatrist in a malpractice action where it was alleged that the podiatrist knew the patient’s tibia was not healing and failed to immediately perform repair surgery. The patient sought to put on evidence that the patient did not have personal health insurance and this was the reason why he did not follow up at a later date with the podiatrist or that was the reason the podiatrist did not treat him. On appeal, the Court of Appeals in Kentucky held that there was no error in excluding evidence of the patient’s lack of health insurance, reasoning in part that the health insurance had not lapsed until after the malpractice in question. Mayor v Kihm, 2022 WL 1435432 (Ky. App. 2022)

HOSPITAL NOT VICARIOUSLY LIABLE FOR THE ALLEGED NEGLIGENCE OF A RADIOLOGIST APRIL 8, 2022 In this case the patient was treated at Clark Regional Medical Center Emergency Room for ongoing abdominal pain and cramping. The physician ordered abdominal and pelvic CT scans which were then interpreted remotely by a radiologist, Dr. Dulai. Based upon this interpretation, the patient was released and eventually passed away due to septic shock and cardiac arrest. The patient’s estate then brought suit against the radiologist for the failure to diagnose the patient’s perforated colon. The estate asserted that Clark Regional was vicariously liable for the radiologist’s negligence because he was either the actual or ostensible agent of the hospital. The trial court dismissed the patient’s claim against the hospital as the patient had signed a consent for services form stating that most or all the health care providers performing services at the hospital were independent contractors and not hospital employees, representatives, or agents. On appeal, the Court of Appeals of Kentucky held that the hospital was not vicariously liable for the alleged negligence of the radiologist. Powell v Kentucky Hospital, LLC, 2022 WL 1051765 (Ky.App. 2022)

PATIENT NOT ALLOWED TO PURSUE INFORMED CONSENT CLAIM WHERE LACK OF INFORMED CONSENT WAS NOT MENTIONED IN COMPLAINT MARCH 24, 2022 In this case the patient underwent the surgical placement of a mid-urethral sling to address complaints of stress urinary incontinence. After the surgery, it was found that an area of the mesh sling had eroded into the patient’s urethra and bladder, requiring reconstructive surgery. The patient brought suit against the surgeon alleging that the surgeon was negligent in the performance of the surgery. The complaint did not explicitly refer to informed consent, inadequate consent, or the statute outlining informed consent. After discovery, the surgeon moved to exclude reference to inadequate informed consent arguing that the patient had not adequately plead that claim. The trial court converted this motion in limine into a motion for partial summary judgment and granted summary judgment in favor of the surgeon on the patient’s informed consent claim. On appeal, the Supreme Court of Kentucky affirmed the dismissal of the informed consent claim stating, “we now hold a medical malpractice claim based upon lack of informed consent must be specifically plead since a generalized claim of medical malpractice fails to give fair notice to the defendant that informed consent will be at issue. We know as well that although plaintiffs must specifically plead the lack of informed consent, necessary information regarding that claim may not always be available immediately. Therefore, trial courts are encouraged to allow plaintiffs to freely amend their complaints in appropriate situations.” Watson v Landmark Urology, P.S.C., 2022 WL 882723 (Ky. 2022

CERTIFICATE OF MERIT REQUIRED IN AN ACTION AGAINST A HOSPITAL FOR NEGLIGENCE OR MALPRACTICE MARCH 18,2022 This case arises out of a fall occurring at a hospital. The patient was experiencing seizures and was seated in a wheelchair in the emergency room so that she would not fall. When the patient asked to visit the restroom, hospital staff ordered her to walk there. As she walked to the restroom, the patient suffered a seizure, fell to the floor and suffered severe injury. The patient then filed suit against the hospital alleging that the negligence of hospital staff was a substantial factor in causing her injuries. The patient failed to file a certificate of merit with her complaint. KRS 411.167 provides that a plaintiff who brings a negligence or malpractice claim against the hospital must file a certificate of merit with the complaint. A certificate of merit is an affidavit or declaration of the plaintiffs consulted with at least one qualified expert who is concluded—after review and consultation—that there was a reasonable basest to bring the action. In specified circumstances, the plaintiff may instead file a declaration or affidavit establishing that she was unable to locate and expert. In this case, the Hopkins Circuit Court dismissed the patient’s complaint for failure to file a certificate of merit. The patient had argued that the motion should be denied as her fall occurred before she had received any medical treatment and thus the statute did not apply. This argument was rejected by both the Hopkins Circuit Court and the Court of Appeals of Kentucky. Evans v Baptist Health Madisonville, 643 S.W.3d 105 (Ky. App. 2022)

JURY VERDICT AFFIRMED IN WRONGFUL DEATH ACTION AGAINST A NURSING HOME MARCH 4, 2022 A patient’s estate brought a wrongful death/negligence case against Harlan Nursing Home and Britthaven Nursing Home alleging that the nursing home staff failed to provide appropriate bowel and nutrition management, catheter, and wound care, ultimately causing the patient’s death. Prior to trial, Britthaven entered into a settlement agreement with the estate. The jury ultimately determined that Harlan was negligent and awarded the estate damages totaling $958,903.39 and apportioning 48% fault to Harlan and 52% Britthaven. Harlan then appealed alleging numerous errors. One alleged error was the providing of deposition transcripts of the patient’s treating physicians and one of his treating nurses to the jury during deliberations. Harlan also alleged that the jury based their decision upon independent research of apart from the evidence and erroneously arrived at a quote quotient verdict in quote in jury portion fault one jury took the average there after the final apportionment determination. This argument was based upon a post-trial juror affidavit. The Court of Appeals of Kentucky affirmed the trial court’s ruling denying Harlan’s motion for a new trial. Harlan also argued that it should have been permitted to introduce evidence of the settlement agreement with Britthaven in order to demonstrate the bias of the patient’s son who testified at trial. The Court of Appeals of Kentucky held that although evidence of settlement negotiations may be offered to prove “bias or prejudice of a witness” the rule does not provide when such evidence must be admitted. The court found no error in the refusal to allow the settlement agreement to come into evidence. The estate on appeal argued that the apportionment between Harlan and Britthaven wasn’t proper. The estate also argued that the trial court erred in directing a verdict on punitive and wrongful death damages. The only evidence cited by the estate in support of its argument that it was entitled to punitive damages was the trial testimony of a witness who when questioned by the estate’s counsel as to whether she would agree that a nurse’s failure to report the patient’s injuries would constitute a reckless disregard for the health and safety of the patient, the witness responded in the affirmative. The Court of Appeals of Kentucky held that there was nothing in the response indicating anything other than a response to a hypothetical question. Harlan Nursing Home, INC v Howard, 2022 WL 627185 (Ky.App. 2022)

COURT OF APPEALS OF KENTUCKY DECLINES TO REVIEW THE CONSTITUTIONALITY OF KENTUCKY’S CERTIFICATE OF MERIT REQUIREMENTS FEBRUARY 11, 2022 A patient brought a malpractice action, without an attorney, against Baptist Health and Blue Cross/Blue Shield arising out of a septoplasty and turbinate reduction surgery. The patient failed to file a certificate of merit as required by KRS 411.167. The Jefferson Circuit Court dismissed the patient’s claims for failing to file the certificate of merit. On appeal, the patient asserted that the certificate of merit requirement unconstitutionally infringed upon his right to a trial by jury and the separation of powers doctrine set forth in Section 28 of the Kentucky Constitution. However, the patient failed to comply with the Kentucky statute, KRS 418.075(1) which requires that the Attorney General of Kentucky be notified of any challenge to the constitutionality of a statute. The Court of Appeals of Kentucky found that the patient’s failure to notify the Attorney General of his constitutional challenge was fatal and the Court would not review the constitutionality of the certificate of merit statute. Cochran v. Morris, 2022 WL 414002 (Ky. App. 2022) (unpublished opinion).

COURT OF APPEALS OF KENTUCKY REVERSES DISMISSAL OF PATIENT’S CASE AGAINST HOSPITAL ON A SUMMARY JUDGMENT MOTION FEBRUARY 11, 2022 In this case a patient died due to an ascending aortic dissection with Marfan syndrome. The patient initially arrived at St. Joseph’s emergency room at 6:31 p.m. on June 23, 2017 complaining of chest pain and nausea. The patient was treated in the ER by Dr. Newman. At 10:15 p.m. Dr. Newman ordered chest CT scans without contrast “stat” and they were taken soon thereafter by radiologist technician Lindsey Barnes. Apparently the wrong CT scan was ordered. At around 11:00 p.m., the radiologist, Dr. Raymonda Stevens, interpreted the CT scans and found them largely unremarkable. The patient was then found unresponsive at 1:14 a.m. the next day, a code was called and after extensive resuscitation efforts the patient was pronounced dead at 2:42 a.m. The patient’s estate then filed suit alleging malpractice against Dr. Newman and others, including St. Joseph. Dr. Newman settled with the patient’s estate and all other parties except for St. Joseph were previously dismissed. The Fayette Circuit Court granted St. Joseph’s Motion for Summary Judgment. At issue in the case was whether Dr. Newman’s reason for ordering the CT which was because of a possible “dissection,” was properly communicated by the hospital staff to the radiologist. The patient’s expert had testified that had the radiologist been informed of the correct reason why the CT was ordered, the radiologist likely would have made a phone call resulting in Dr. Newman changing the order to an appropriate CT test. The Court of Appeals of Kentucky found that the patient’s claim against St. Joseph should not have been dismissed on the summary judgment motion and remanded the case to the Fayette Circuit Court for trial. The Court of Appeals of Kentucky stated: We believe an appropriate causal link can be made that the hospital’s failure to communicate the necessary information was the ultimate cause of Baker’s death, for Dr. Newman’s initial error in ordering the wrong kind of CT scan, would not have caused Baker harm if it could have been promptly corrected via consultation with the radiologist. Kuffner v. Saint Joseph Health System, Inc., 2022 WL 414106 (Ky. App. 2022) (unpublished opinion).

COURT OF APPEALS OF KENTUCKY DISCUSSES WHETHER A MEDICAL MALPRACTICE ACTION MUST BE DISCLOSED IN THE PATIENT’S BANKRUPTCY PROCEEDING FEBRUARY 4, 2022 In this case the patient filed for Chapter 7 bankruptcy protection prior to being released from the hospital. The bankruptcy petition did not list a potential malpractice claim. The patient then hired an attorney to pursue a malpractice claim against Norton Hospitals and others alleging that she suffered from an anoxic brain injury with permanent brain deficits and speech issues. On November 5, 2014, after hiring her malpractice attorney, the patient and her husband testified under oath, in the bankruptcy proceeding, that they were not parties to a lawsuit or expected to be parties to a lawsuit where they could recover money or property. After that hearing, the patient was informed by her attorney that he believed that she had a viable medical malpractice case. On December 5, 2014, the underlying medical malpractice lawsuit was filed. In January 2015 the patient’s debts were discharged by the bankruptcy court. At no time between the filing of the medical malpractice lawsuit and the discharge of the debts did the patient inform the bankruptcy court or the trustee about the medical malpractice lawsuit. In response to the lawsuit, the Defendants argued that the patient was judicially estopped from pursuing her action because she had not disclosed the malpractice action to the bankruptcy court. The Jefferson Circuit Court agreed and dismissed the patient’s claims. On appeal, the Court of Appeals of Kentucky found that the patient’s claims would be barred only if the patient acted in “bad faith” in failing to disclose the malpractice action. The Court of Appeals of Kentucky found that the Circuit Court had not properly considered whether the failure to disclose was done in bad faith and that the Circuit Court should have considered the patient’s mental state and her limited involvement with the bankruptcy proceedings. Even if the patient had acted in bad faith, the Court of Appeals’ suggested that the bankruptcy trustee could pursue the medical malpractice case and pay the creditors with any proceeds won. The Court of Appeals of Kentucky reversed the dismissal of the patient’s case. This case highlights the importance of disclosing medical malpractice claims to the bankruptcy court and disclosing the fact that you filed bankruptcy to your medical malpractice attorney. Harac v. Norton Hospitals Inc., 2022 WL 332830 (Ky. App. 2022) (unpublished opinion).

COURT OF APPEALS UPHOLDS DEFENSE VERDICT IN FAVOR OF MEDICAL PROVIDERS FEBRUARY 4, 2022 The patient suffered from recurrent diverticulitis for much of her adult life, resulting in three colon resection surgical procedures to remove diseased portions of her bowel. The third surgery was on January 26, 2016, performed by Drs. Barnes and Patton at Livingston County Hospital. Prior to the surgery, Dr. Barnes discussed the risk of surgery and told the patient that, if required, he would convert the laparoscopic procedure to an open surgical procedure. The patient then signed a consent form. The patient suffered significant pain following the surgery and approximately 13 days after the surgery developed pneumonia. The infection spread, her condition worsened, and she developed a systemic infection for which she was placed on a ventilator. She was then transferred to Lourdes Hospital where Dr. Mauterer performed an exploratory surgical procedure. After a protracted hospitalization and treatment with antibiotics to address the infection, the patient eventually recovered and was released from Lourdes Hospital. The Patient then filed a malpractice action against Drs. Barnes and Patton and Livingston County Hospital. The focus of her claim was that Drs. Barnes and Patton injured her bowel and failed to provide a sufficient level of treatment in the days following her surgery. The case went to trial and the Livingston Circuit Court granted a directed verdict in favor of the healthcare providers on the patient’s informed consent claim. The matter then went before the jury on all remaining issues and the jury returned a verdict in favor of the healthcare providers. The patient then appealed. The Court of Appeals of Kentucky affirmed the judgment in favor of the healthcare providers. First, the Court of Appeals found that the Livingston Circuit Court correctly determined that the evidence on patient’s informed consent claim was insufficient to sustain a verdict. As part of the consent process, patient was advised that her surgeons retained the option of converting the laparoscopic procedure to an open procedure if the circumstances warranted. Though they encountered significant scarring, the surgeons continued with and completed the laparoscopy. The Court of Appeals found that the patient did not prove that, but for the alleged lack of information provided to her, she would not have consented to the procedure. The patient also argued that the Circuit Court erred when it failed to admonish the jury not to consider the subsequent malpractice of Dr. Mauterer, who had not been sued. The patient argued that the healthcare providers should be prohibited from referencing the subsequent alleged malpractice of Dr. Mauterer in their closing arguments. The Court rejected this argument noting that “a trial judge may properly exercise discretion in allowing testimony in a medical negligence action which points to the fault of subsequent non-parties on the issue of causation.” The Court of Appeals held that the healthcare providers could argue that Dr. Mauterer may have been responsible for the patient’s claimed injuries. The Court of Appeals also ruled that questions by defense counsel regarding her pension and application for a short-term disability benefit filed prior to the surgery at issue did not fall within the collateral source rule and the healthcare providers were properly allowed to question the patient on this issue. The Circuit Court properly allowed the question for the limited purpose of establishing the patient’s disability before surgery and thus there was not a violation of the collateral source rule. Finally, the patient argued that the Circuit Court abused its discretion by denying her request to question potential jurors about the burden of proof during voir dire. The Court of Appeals rejected this argument stating, “A trial court has wide discretion in permitting or limiting the voir dire examination of perspective jurors in civil cases.” Higgins v. Barnes, 2022 WL 332851 (Ky. App. 2022) (unpublished opinion).

PATIENT’S REFUSAL TO BE TREATED PRECLUDED MEDICAL MALPRACTICE ACTION FEBRUARY 4, 2022 In this case the patient was arrested by police when the patient was found asleep with a handgun in his lap. Police determined that the patient had an emergency protective order against him which prevented him from possessing a firearm. Because the patient complained of an injury to his ribs from an accident earlier that day, the police took him to the University of Kentucky Emergency Department where the patient expressly told the physician that he did not want to be treated. The patient was then released into police custody and while in custody, suffered from a hypoxic event stemming from a heart infection brought on by intravenous drug use. The patient then brought a medical negligence action against the physician who saw him at the hospital. The physician filed a motion for summary judgment on the basis that because the patient did not consent to treatment, the physician’s ability to treat him was limited. The Court of Appeals of Kentucky agreed with the Fayette Circuit Court’s dismissal of the patient’s action. The Court of Appeals concluded that the physician owed the patient no duty because the evidence failed to support a finding that a physician/patient relationship existed based upon the patient’s refusal to be treated. Stanley v. Desai, 2022 WL 332716 (Ky. App. 2022) (unpublished opinion).

COURT OF APPEALS OF KENTUCKY AFFIRMS COMPENSATORY DAMAGE AWARD IN FAVOR OF PATIENT WHERE A SURGICAL SPONGE WAS LEFT IN HER ABDOMEN DURING SURGERY JANUARY 7, 2022 The patient had a wound on her toe which became infected and gangrenous. Her physician recommended an aortobifemoral bypass surgery to improve circulation in her legs. The bypass surgery was performed at the University of Louisville Hospital. During the March 2011 surgery, the surgical team left a laparotomy sponge in her abdomen, which was not removed until November 2016. The Plaintiff filed suit against the surgeon and hospital and the hospital’s employees who performed the March 2011 surgery. The patient’s estate also asserted claims against other medical professionals who failed to act on a radiologist’s report that identified the retained sponge in her body in March 2015. The patient suffered diarrhea, vomiting, nausea, and ultimately leg amputation. On the first day of trial University Hospital conceded liability for leaving the sponge in the patient’s abdomen. As to the hospital, the only remaining issue was damages, including punitive damages. Following a 10-day trial the jury found the surgeon to be 10% at fault, the hospital 60% at fault, and 30% fault to two other Defendants. The jury awarded the patient’s estate $9.5 million in damages and an additional $1 million in punitive damages for a total verdict of $10.5 million. The Defendants then filed an appeal. The Defendants first argued that they were entitled to instructions on apportionment of fault and mitigation of damages for the patient’s failure to follow medical advice in failing to follow-up with medical care after the sponge was left in her abdomen. The medical provider’s position was that had the patient taken more proactive steps to manage her health, then amputation of her leg may not have been required because the sponge may have been found during other treatment. The Court of Appeals of Kentucky rejected the healthcare provider’s argument noting that no one knew that a sponge was retained in the patient’s abdomen, so she was not given specific instructions for follow-up care regarding the sponge. The Court also rejected the Defendant’s argument that the award for pain and suffering was excessive. The Defendants next argued that the punitive damages award should be vacated. The Court of Appeals of Kentucky noted that under Kentucky law there are two different avenues for the recovery of punitive damages, one statutory and one under the common law. Under the statute, punitive damages may be recovered only by showing that the Defendant acted toward the Plaintiff with “oppression, fraud or malice.” Second, “punitive damages may also be awarded under the common law standard of gross negligence. Gross negligence means a wanton or reckless disregard for the lives, safety, or property of others.” With respect to holding an employer liable for punitive damages, the Court of Appeals of Kentucky noted that under KRS 411.184(3): “in no case shall punitive damages be assessed against a principle or employer for the act of an agent or employee unless such principle or employer authorized or ratified or should have anticipated the conduct in question.” The Court of Appeals of Kentucky found that the evidence at trial showed a wanton or reckless disregard, both through the nurses’ actions and inactions and through the hospital’s failure to provide added directions regarding sponge counts. Plaintiff’s expert noted that University Hospital’s sponge count policy did not address the “final count” at all. The Court of Appeals of Kentucky found that the Circuit Court did not adequately instruct the jury on the elements of the statute which allowed for punitive damages against a principal or employer to be assessed only if the “principal or employer authorized, ratified or should have anticipated the conduct in question.” As such, the Court of Appeals of Kentucky remanded the case for a retrial solely on the issue of punitive damages. The Court of Appeals of Kentucky also addressed the patient’s argument that the Circuit Court erred in excluding evidence of “never events” at trial. The Court of Appeals found that the “never events” evidence was properly excluded. Morris v. Boerste, 2022 WL 67406 (Ky. App. 2022).

COURT OF APPEALS OF KENTUCKY AFFIRMS DISMISSAL OF PATIENT’S ACTION AGAINST A REHABILITATION HOSPITAL FOR FAILURE TO IDENTIFY AN EXPERT WITNESS DECEMBER 22, 2021 A patient at HealthSouth fell while undergoing physical therapy. As a result of the fall, the patient suffered a fractured nose and displacement of a plate surgically implanted on her distal femur bone. The Fayette Circuit Court granted HealthSouth’s Motion for Summary Judgment on the basis that the patient had failed to identify any expert to support her medical negligence claim. The patient argued that the deposition of the physical therapist had been delayed due to the Covid-19 pandemic thus delaying her ability to disclose an expert. The Circuit Court found that the patient had failed to diligently prosecute her claim. On appeal the Court of Appeals of Kentucky held that the Circuit Court properly rendered summary judgment as the patient failed to timely identify an expert witness in her medical negligence action against HealthSouth. McCready v. HealthSouth Cardinal Hill Rehabilitation Hospital, LLC, 2021 WL 6058542 (Ky. App. 2021).

COURT OF APPEALS OF KENTUCKY AFFIRMS EXCLUSION OF PATIENT’S WOUND EXPERT DECEMBER 17, 2021 The patient was initially seen at Saint Joseph Hospital beginning on January 6, 2015. During his hospitalization he developed a pressure wound near his coccyx. The patient was then discharged from the hospital on January 23, 2015. At that time the patient’s care was transferred to Cardinal Hill Hospital for 2-3 weeks of physical therapy. The patient was then readmitted to Saint Joseph Hospital on March 4, 2015, for knee surgery but the procedure was delayed due to an infection in both the coccyx wound and in a pressure wound that had developed on his knee. The patient was in and out of multiple medical facilities and eventually died on November 30, 2015. The death certificate cited cardiorespiratory failure as the cause of death. The patient’s estate filed suit alleging that Saint Joseph Hospital was negligent in failing to: (1) turn the patient as frequently as necessary, (2) provide sufficient skin protection, (3) provide a special mattress, and (4) manage his protein levels. However, the Plaintiff’s expert admitted that he did not know how frequently the patient was turned, what skin protection was provided, what type of mattress was used, or what the patient’s protein levels were. The expert asserted he did not need to know these details because skin breakdown is always preventable and accordingly any skin breakdown is the product of negligence. The expert also testified that although the patient’s wound was not infected at the time he was discharged from Saint Joseph Hospital the wound became infected and the infection migrated to the patient’s knee. The Fayette Circuit Court granted the Hospital’s Motion for Summary Judgment excluding the expert’s testimony and dismissing the case. The Circuit Court found that the expert testimony was not based upon sufficient data and facts and the expert’s testimony was not the product of reliable principles and methods. On appeal, the Court of Appeals of Kentucky affirmed the dismissal. Thomas v. Kentucky One Health Partners, LLC, 2021 WL 5979265 (Ky. App. 2021).

SUPREME COURT OF KENTUCKY DISCUSSES COMPENSATORY AND PUNITIVE DAMAGES IN CHILD’S WRONGFUL DEATH ACTION DECEMBER 16, 2021 Although not a medical malpractice action, this case discusses damages recoverable under Kentucky law and as such has an impact on Kentucky medical malpractice cases. This case involved the drowning of a child in a hotel pool. At trial, the plaintiff’s vocational economics expert estimated that the child’s lifetime earning capacity to be between $1,890,874 and $3,770,805. At the end of the trial, the jury awarded medical expenses, and funeral and burial expenses, but made no award for pain and suffering, loss of future earning potential, and loss of the consortium for the child’s mother and father. On appeal to the Supreme Court of Kentucky, the court ruled that it was the jury’s prerogative not to make an award for pain and suffering. Similarly, the Supreme Court of Kentucky held that, “everyone would agree that the loss of a child is tragic, not everyone would be able to agree on a monetary value for that loss.” Thus, the court found no error in the failure to make an award for loss of consortium. The jury also awarded $3,000,000 in punitive damages. The jury found the mother to be 65% at fault and Comfort Inn to be 35% at fault. The jury awarded compensatory damages for medical expenses and funeral expenses, totaling $211,770.25 or $74,119.59 after apportionment. The jury found that the hotel acted with gross negligence and awarded $3,000,000 in punitive damages. The trial court reduced the punitive damage award to $1,058,851.25 which was a 5-1 ratio between punitive damages and the total compensatory damages. The Supreme Court of Kentucky held that the remittitur of the punitive damage award was appropriate even though the defendant argued that the 5-1 ratio should be applied to the apportioned compensatory damages. Louisville SW Hotel, LLC v Lindsey, 636 S.W.3d 508 (Ky. 2021)

KENTUCKY SUPREME COURT REJECTS PATIENT’S MULTIPLE ASSIGNMENTS OF ERROR OCTOBER 28, 2021 The patient was admitted to Baptist Health in Corbin, Kentucky for symptoms including fever, vomiting, and extreme nausea. The patient was diagnosed with a urinary tract infection, a kidney infection, gallstones, pneumonia, and hypokalemia (low potassium) and was treated surgically for a kidney stone which included placement of a stint. During her hospitalization she was placed on an antibiotic, Azithromycin. Upon her discharge from the hospital the patient was prescribed Levaquin. When taken by patients with low potassium levels, both Azithromycin and Levaquin increase a patient’s risk for prolonged QT intervals resulting in arrhythmias and possible cardiac arrest. The morning after her discharge the patient took the Levaquin as prescribed. At around 11:00 a.m., her mother found her in cardiac arrest. Because of the cardiac arrest the patient’s brain was deprived of oxygen and as a result the patient can no longer speak, control her bowels, or in any way ambulate with her upper or lower extremities. The patient brought suit against the discharging physician and hospital alleging that they breached the standard of care by forgoing potassium replacement and by prescribing two antibiotics known to be linked to arrhythmias and cardiac arrest when taken by patients with low potassium. After eleven days of trial the jury found for both the physician and hospital. On appeal, the Court of Appeals affirmed the verdict in favor of the health care providers. On further appeal, the Supreme Court of Kentucky also found no error during the trial despite numerous errors asserted by the patient including the fact that an incident report produced by Baptist Health was excluded from evidence. The incident report stated, “Clinically suspected that combination of Levofloxacin and hypokalemia led to ventricular arrhythmia.” The trial court excluded the report as the patient could not prove who wrote the report. The Supreme Court of Kentucky found that the patient had failed to properly authenticate the incident report. The Supreme Court of Kentucky also found that the trial court properly limited the testimony of the patient’s primary causation witness, Dr. Tisdale, a Doctor of Pharmacy. This expert had published extensively on the topic of pharmaceutical risks associated with heart arrhythmias. The hospital argued that Dr. Tisdale should not have been permitted to testify because Dr. Tisdale is not a “medical doctor.” The Supreme Court of Kentucky found that Dr. Tisdale was qualified to testify even though he was not a medical doctor but any limitations placed on Dr. Tisdale’s testimony was harmless error. The Supreme Court also found that the patient was not improperly precluded from cross-examining the physician regarding the audit trail as the audit trail had not been properly authenticated. The patient also complained about limitations placed by the trial court upon use of a medical journal article. The Supreme Court of Kentucky found that this issue had not been properly preserved for appeal. The patient also argued that the treating physician should not have been allowed to provide expert testimony as he had not been disclosed as an expert witness at the time of the treating physician’s deposition. The trial court found that the treating physician would be allowed to testify as to any opinions which he expressed in his deposition. The patient also asserted that the trial court erred in allowing defense experts to give undisclosed expert testimony. Because these opinions involved only causation and damages, and the patient lost the case on the standard of care, the Supreme Court of Kentucky found that this error was harmless. The patient finally complained that the jury instructions were improper because the jury instructions referenced only the nursing staff and the patient’s claims were broader than the nursing staff. The Supreme Court of Kentucky found that the bare bones instruction was proper and no error was committed. Kentucky Guardianship Administrators, LLC v. Baptist Healthcare System, Inc., 2021 WL 5050124 (Ky. 2021) (unpublished opinion).

WRIT OF PROHIBITION DENIED WHERE PATIENT ATTEMPTED TO SET ASIDE SETTLEMENT October 28, 2021 This medical-negligence suit arose out of injuries allegedly sustained by a child during his delivery at birth. The claims against Norton Hospital was allegedly settled in pre-trial mediation. Following the mediation, the Plaintiffs attempted to repudiate as “null and void” the settlement document alleging that the mother did not have authority to settle claims on her son’s behalf absent approval of the Circuit Court and because Norton Hospital purportedly breached the terms of confidentiality by sharing the settlement terms with other Defendants in the action. The patient also asserted that two material terms were added to the settlement agreement and that the agreement was not in the child’s best interest. Norton Hospital moved the trial court to enforce the agreement and to dismiss the claims against it. The Plaintiffs then applied for a writ of prohibition in the Kentucky Court of Appeals to block the trial court’s enforcement of the settlement agreement. The Court of Appeals of Kentucky held that a writ of prohibition should not be issued. Logan Coons, a minor v. Burkman, 2021 WL 5050761 (Ky. App. 2021) (unpublished opinion).

WRIT OF PROHIBITION WILL NOT ISSUE TO PROHIBIT A MEDICAL EXAMINATION OCTOBER 28, 2021 The Defendants in this case sought an order directing the Plaintiff to undergo a medical examination. The trial court found that the Defendant had demonstrated good cause under the statute for a physical examination. The trial court limited the scope of the examination to the injuries Plaintiff claimed to have suffered in the accident and to a 2-hour time limit. The Plaintiff filed an application for a writ of prohibition to prevent enforcement of the trial court’s order arguing that because she had suffered no permanent injuries, a physical examination would not reveal anything relevant to her claim. This writ of prohibition was first denied by the Court of Appeals and on further appeal the Supreme Court of Kentucky the Supreme Court found that the Plaintiff was not entitled to a writ of prohibition as it is an extraordinary and discretionary writ. The Supreme Court of Kentucky held that the threat of a sanction in the form of contempt is insufficient to justify a writ of prohibition. The Supreme Court of Kentucky concluded that the only harm resulting from the medical examination was the discovery of irrelevant information and this harm was not sufficient to justify the issuance of a writ. Bradberry v. Honorable A.C. McKay Chauvin, 2021 WL 5051559 (Ky. 2021) (unpublished opinion).

PAIN AND SUFFERING DAMAGES IN MEDICAL MALPRACTICE ACTION ARE NOT MARITAL PROPERTY OCTOBER 1, 2021 The Court of Appeals of Kentucky held that a husband’s settlement with King’s Daughters Medical Center is not marital property as the settlement was for pain and suffering. “As a matter of fairness it does not seem right that upon the dissolution of the marriage one of the parties should be rewarded because the other party had the misfortune to suffer painful injuries as a result of an accident [or tort].” Under Kentucky law, any settlement or award for lost wages for impairment of earning capacity would be deemed marital property. Bond v. Bond, 2021 WL 4484960 (Ky. App. 2021).

PATIENT MAY NOT RAISE CONFLICT OF INTEREST SO AS TO DISQUALIFY AN ATTORNEY FROM REPRESENTING MORE THAN ONE DEFENDANT IN A MEDICAL MALPRACTICE ACTION SEPTEMBER 30, 2021 In this case the patient was seen by a nurse practitioner at Memorial Hospital, Inc.’s Weekend Express Clinic for treatment of a persistent cough. The patient was diagnosed with bronchitis and was administered injections of antibiotics and steroids. Shortly after receiving the injections, the patient collapsed, was not breathing and was without a pulse. The patient was diagnosed with anaphylaxis at Memorial Hospital and subsequently transferred to the University of Kentucky Medical Center for care. Unfortunately, the patient passed away without regaining consciousness. The patient’s husband filed a wrongful death action against the nurse practitioner and Weekend Express Clinic for malpractice asserting that administration of the antibiotic led directly to the patient’s demise. During litigation, the law firm for the Defendant also represented a non-party fact witness who was a technologist who performed one of the imaging studies on the patient’s leg. Because of this dual representation the Plaintiff asserted that the defense law firm should not be allowed to represent the health care providers in this action. The Supreme Court of Kentucky found that the Plaintiff did not have standing to assert the alleged conflict of opposing counsel because the conflict did not directly involve the Plaintiff. Harkins v. House, 2021 WL 4486503 (Ky. 2021).

THE GENERAL ASSEMBLY OF THE COMMONWEALTH OF KENTUCKY ENACTS COVID-19 IMMUNITY The General Assembly of the Commonwealth of Kentucky enacted legislation creating certain immunities relating to COVID-19. KY ST §39A-275, which became effective April 11, 2021 provides some limited immunities related to “COVID-19 claims”. A “COVID-19 claim” means any claim or cause of action for an act or omission arising from COVID-19 that accrues on or after March 6, 2020 and until the emergency declaration is withdrawn, revoked, or lapses. Pursuant to the statute, any essential service provider during the declared emergency of the COVID-19 pandemic shall not be liable for any COVID-19 claim. Healthcare providers are listed as an essential service provider. KY ST §39A-275

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).

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).

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).

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 HEALTHCARE PROVIDERS 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 UNCONSTITUTIONAL 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).

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. 2017).

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).

DISCOVERY OF ELECTRONIC MEDICAL RECORDS JULY 14, 2017 This case involved the suicide of a patient who had been prescribed an antidepressant. During the case, the patient’s estate sought discovery of the electronical medical records system maintained by Deaconess Hospital. The hospital opposed the discovery asserting that providing the information would violate the software license agreement of the Epic medical records system. The United States District Court for the Western District of Kentucky held that the defendants should permit the plaintiff the opportunity to perform an on-site inspection of the electronic medical records, that the defendant should provide the plaintiff a complete copy of the EMR audit trail, but the defendants were not required to make the EMR system available during the deposition of the defendant doctor and was also not required to create a test patient in the EMR system for plaintiff’s experimentation. Borum v Smith, 2017 WL 3014487 (W.D. Ky. 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 parent’s 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. pp. 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).

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).

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 ght 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).

JURY SELECTION 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).