Kentucky Court Report - SCOKY & COAKY

TORTS - medical negligence, informed consent: Moore v. Saint Joseph Healthcare, Inc. (COA 11/6/2009)

Moore v. Saint Joseph Healthcare, Inc.
2008-CA-002340 11/06/09 2009 WL 3672900

Opinion by Judge Stumbo; Judges Thompson and Wine concurred.

The Court affirmed a summary judgment entered in favor of the appellee hospital on appellant’s claim that the hospital was negligent in failing to obtain informed consent before administering a thrombin injection.

The Court held that the trial court properly granted summary judgment after finding that appellant’s written consent to an ultrasound compression encompassed his consent to the injection. Further, this finding comported with KRS 304.40-320(2).

MEDICAL NEGLIGENCE - Hooks left in scalp during brain surgery not negligence per se: Gregory B. Nazar, MD, et al. v. Sheila Branham, Executrix of the Estate of Roe Branham (SC 4/23/2009)

Gregory B. Nazar, MD, et al. v. Sheila Branham, Executrix of the Estate of Roe Branham
2004-SC-001015-DG April 23, 2009
2005-SC-000834-DG April 23, 2009
Opinion by Special Justice Mando; Chief Justice Minton and Justice Schroder not sitting.

During surgery to remove a brain tumor, a small metal “Durahook” was left in the patient’s scalp, necessitating a second surgery months later to remove the item. The patient brought a medical malpractice suit against the surgeon. The jury returned a defense verdict after the trial court refused to instruct the jury on the patient’s theory that the surgeon was vicariously liable for the nurses’ failure to remove the item. The Court of Appeals reversed, holding that under Laws v. Harter, leaving a foreign object inside a patient is negligence per se, and that the patient should have been awarded summary judgment on the issue of liability.


The Supreme Court reversed the Court of Appeals and overruled Laws, holding that the res ipsa loquitur standard was more appropriate than the stringent negligence per se standard for foreign object cases because it allows juries to determine the individual healthcare professional’s level of liability in a situation where any number of people may be responsible for leaving the object inside the patient. Having determined the issue of the surgeon’s personal liability was properly sent to the jury, the Court then took up the issue of the surgeon’s vicarious liability. The Court held that in order for vicarious liability to exist, it must be established that the nurses were the surgeon’s agents. The Court found the patient had presented no evidence of an agency relationship and noted the surgeon’s evidence showing that he did not control the nurses’ training, terms of employment or details of their work. As such, the Court held that the trial court was correct in its refusal to instruct the jury on vicarious liability. Justice Venters (joined by Justice Cunningham and Justice Noble) concurred but disagreed with the majority’s conclusion that the nurses were not agents of the surgeon. The minority wrote that because the surgeon did not order or instruct nursing staff in how to assist him did not necessarily negate the supervisor/agent relationship but might instead indicate that the surgeon was deficient in his supervision of the nurses.

REGULATORY LAW (PROFESSIONS): Physician permitted to use physical therapy billing codes: Dubin Orthopaedic Center PSC v. State Board of Physical Therapy (SC 4/23/2009)

Dubin Orthopaedic Center PSC v. State Board of Physical Therapy
2007-SC-000756-DG April 23, 2009
Opinion by Justice Abramson. All sitting, all concur.

The State Board of Physical therapy sought to enjoin Appellant—an orthopedic surgeon—from using AMA billing codes related to physical therapy, citing KRS 327.020(3) which prohibits anyone other than board-licensed physical therapists from calling themselves physical therapists or billing for physical therapy services. The trial court denied the Board’s request for injunctive relief, but the Court of Appeals reversed, holding that while Appellant was authorized to provide the type of treatment he did, KRS 327.020 still applied to him, precluding Appellant from using the insurance codes or the phrase “physical therapy” when describing his services.

The Supreme Court reversed the Court of Appeals, citing the plain language of KRS 327.020(1), which states “nothing contained in this chapter shall prohibit any person licensed in this state under any other law from engaging in the practice for which such person is duly licensed.” The Court added that the statute’s purpose is to protect the public against unqualified providers, not to protect physical therapists against competition from other qualified health care providers.

Torts - malicious prosecution, probably cause for original medical malpractice claim: D'Angelo v. Mussler (COA 5/29/2009)

D'Angelo v. Mussler
2008-CA-001003 05/29/2009 2009 WL 1491390

Opinion by Judge Moore; Judge Dixon and Senior Judge Knopf concurred.

The Court affirmed a summary judgment of the circuit court in favor of the appellee attorney on appellant’s claim alleging wrongful use of civil proceedings. The Court held that the trial court properly found that appellee did not lack probable cause for the basis of a medical malpractice claim against appellant, although it was later voluntarily dismissed with prejudice.

Employment - ADA, elected official, and accommodations: Kentucky Retirement Systems v. Martin (COA 5/22/2009)

Kentucky Retirement Systems v. Martin
2007-CA-002522 05/22/2009 2009 WL 1423991

Opinion by Judge Caperton; Judge Keller and Senior Judge Guidugli concurred in result only.

The Court affirmed an order of the circuit court, which reversed a decision by the Kentucky Retirement Systems denying benefits to a county clerk who as supervisor/employer granted to herself various accommodations to complete her term of office. The Court first held that clerk was not required to resign in order to prove her disability. While the accommodations might have been reasonable in the beginning their continuation could be unreasonable. The Court rejected the argument that accommodations given to an elected official acting as both employer and employee were automatically reasonable, as this would usurp the responsibility of the hearing officer mandated by KRS 61.600. The Court then concluded that the delegation, on a continuing basis, of the clerk’s supervisory duties, an essential function of her job, was unreasonable as a matter of law in light of KRS 61.600 and as defined under the Americans with Disabilities Act. The Court finally held that the circuit court correctly concluded that the record compelled a finding that the clerk was disabled and that the hearing officer erroneously found otherwise.

Evidence - Expert testimony by doctor regarding nurse's standard of care permitted: Tapp v. Owensboro Medical Health System, Inc. (COA 4/10/2009)

Tapp v. Owensboro Medical Health System, Inc.
2008-CA-000848
04/10/2009
2009 WL 960826

Opinion by Judge Acree; Judge Moore and Senior Judge Knopf concurred.

The Court affirmed a judgment of the circuit court dismissing a negligence action against a doctor and hospital.

The Court held that the trial court did not abuse its discretion in allowing a doctor to testify regarding the nurses’ standard of care. The testimony complied with the requirements of KRE 702 in that the testimony was within the board certified pediatrician’s area of expertise; his opinion was based upon facts and data, including deposition testimony of all relevant witnesses and medical records admitted into evidence; the principles and methods used to assess the facts and data were obtained from the doctor’s career focusing on pediatric patients, including emergency situations, and were typical of traditional medical education in the specialty; and the doctor clearly applied reliable principles and methods to the specific circumstances. The Court declined to adopt holdings from other jurisdictions that physicians were incompetent to testify regarding a nurses’ standard of care.

Corrections - fiscal court responsibility for medical expenses: Hospital of Louisa v. Johnson County Fiscal Court (COA 4/10/2009)

Hospital of Louisa v. Johnson County Fiscal Court
2008-CA-001302
04/10/2009
2009 WL 961145
Opinion by Judge Caperton; Judge Thompson concurred; Judge Wine concurred by separate opinion.

The Court affirmed a summary judgment of the circuit court on the appellant hospital’s claim for payment from the county fiscal court for medical treatment given to a prisoner who had been released from jail on bail with the condition that he receive medical treatment and report back to the jail immediately upon completion of treatment. The Court held that because the prisoner was not in custody as defined by KRS 520.010(2), the county was not responsible pursuant to KRS 441.045(3) to pay for the medical treatment.