MICHELLE DAWN HARDEN LEWIS v. FAZAL AHMAD, M.D.
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RENDERED: September 4, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1996-CA-003310-MR
MICHELLE DAWN HARDEN LEWIS
and WILMA EVERSOLE
v.
APPELLANTS
APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE RON JOHNSON, JUDGE
ACTION NO. 95-CI-00083
FAZAL AHMAD, M.D.
APPELLEE
OPINION
AFFIRMING
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BEFORE:
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GARDNER, JOHNSON, and MILLER, Judges.
MILLER, JUDGE.
Michelle Dawn Harden Lewis (Lewis) and her
mother, Wilma Eversole (Eversole), bring this appeal from a
November 22, 1996 judgment of the Harlan Circuit Court.
We
affirm.
In February 1995, Lewis and Eversole instituted the
instant medical malpractice action against appellee, Fazal Ahmad,
M.D. (Dr. Ahmad).
The action stems from Dr. Ahmad’s (what proved
unnecessary) laparoscopic appendectomy upon 17-year-old Lewis in
June 1994.
Complications involving vital organs arose from
injuries sustained during the procedure.
The injuries occurred
during surgery when a device (a “trocar”) improperly lacerated
internal organs.
Believing Dr. Ahmad to be an agent of Appalachian
Regional Health Care, Inc. (Appalachian), Lewis and Eversole
filed an amended complaint naming Appalachian as a defendant.
Thereafter, they voluntarily dismissed Appalachian from the
action.
Ultimately, the jury found in Dr. Ahmad’s favor, and the
court entered judgment dismissing the action.
This appeal
followed.
Lewis and Eversole assert that the circuit court
committed reversible error by failing to grant a directed
verdict.
Ky. R. Civ. P. (CR) 50.01.
They argue that the
evidence conclusively establishes that Dr. Ahmad negligently
caused Lewis’s injuries “by the improper insertion of the trocar”
during surgery.
A directed verdict is proper when, viewing the
evidence most favorable to the non-moving party, reasonable minds
could only conclude that the moving party is entitled to
judgment.
At trial, Dr. William Stephen Aaron testified that in
his expert opinion Dr. Ahmad breached no applicable standard of
care.
Based upon this testimony alone, we are compelled to
conclude that the circuit court did not commit reversible error
by denying the motion for a directed verdict.
See Kroger Company
v. Willgruber, Ky., 920 S.W.2d 61 (1996).
Lewis and Eversole also contend that the circuit court
committed reversible error by admitting the testimony of two
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expert witnesses.
Specifically, Lewis and Eversole claim that
Dr. Ahmad failed to list Dr. Benjamin Esparez and Dr. Timothy
Nypaver as expert witnesses pursuant to CR 26, and thus, the
court should have excluded their testimony.
We disagree.
Considering that Lewis and Eversole failed to request a continuance and that they had notice of the witnesses’ testimony, we
believe the admittance of such expert testimonials was simply not
reversible error.
See Thompson v. Mills, Ky., 432 S.W.2d 448
(1968), and Hicks v. Cole, Ky. App., 566 S.W.2d 169 (1977).
For the foregoing reasons, the judgment of the circuit
court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
John Kevin West
Charles E. Beal II
Lexington, KY
Joe Travis
Somerset, KY
ORAL ARGUMENT:
John Kevin West
Lexington, KY
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