JIMMY WOOD and MARGIE WOOD v. ROBERT EMSLIE, M.D.; GILBERT, BARBEE, MOORE & McILVOY, P.S.C, d/b/a GRAVES GILBERT CLINIC; HUMANA HEALTH PLANS OF KENTUCKY, INC.; and KENTUCKY APPAREL LLP BENEFITS PLAN ORDER DISMISSING KENTUCKY APPAREL LLP BENEFITS PLAN

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RENDERED: March 5, 1999; 2:00 p.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 1997-CA-002405-MR JIMMY WOOD and MARGIE WOOD APPELLANTS APPEAL FROM WARREN CIRCUIT COURT HONORABLE JOHN MINTON, JR., JUDGE ACTION NO. 95-CI-000185 v. ROBERT EMSLIE, M.D.; GILBERT, BARBEE, MOORE & McILVOY, P.S.C, d/b/a GRAVES GILBERT CLINIC; HUMANA HEALTH PLANS OF KENTUCKY, INC.; and KENTUCKY APPAREL LLP BENEFITS PLAN APPELLEES ORDER DISMISSING KENTUCKY APPAREL LLP BENEFITS PLAN AND OPINION AFFIRMING ** ** ** ** ** BEFORE: McANULTY, MILLER, AND SCHRODER, JUDGES. SCHRODER, JUDGE: This is an appeal from a medical malpractice action in which a jury verdict was rendered for the defendants. Appellants argue that the court erred in allowing two of the defendants’ witnesses to testify and in denying appellants’ posttrial motion seeking proportionate payment of litigation costs from Humana Health Plans of Kentucky, Inc. (Humana) and Kentucky Apparel LLP Benefits Plan (Kentucky Apparel). Finding no error, we affirm. Jimmy Wood (Wood) had gastrointestinal complaints which resulted in Dr. Robert Emslie’s (Dr. Emslie) performing a sphincterotomy. duodenum. During the operation, Dr. Emslie perforated the Wood was hospitalized for over three months and was admitted about twenty times thereafter. rose to $334,308.77. His medical expenses During this time, Wood was employed by Kentucky Apparel and Laundry, who provided him health benefits through Humana. The health plan contained a subrogation provision for medical expenses caused by the fault of a third party. If fault were not clear, the plan advanced payment on the condition that the beneficiary repay if a third party were found liable. The plan also provided Humana a right of subrogation should the beneficiary obtain recovery for the conditionally advanced medical expenses. When Wood sued Dr. Emslie and the other defendants for medical negligence, his attorney informed Humana that if it did not intervene in the action, it would lose its right to subrogation. plaintiff. Accordingly, Humana became an intervening Kentucky Apparel believed it had a statutory right to subrogation under the Employee Retirement and Income Security Act (ERISA) and chose not to intervene in the action. Nor was it made a party at any time during the proceedings. Before addressing appellants’ arguments regarding the admission of the two physicians’ testimony, we will consider an outstanding motion by Kentucky Apparel to dismiss the appeal -2- against it. Kentucky Apparel contends that the court had neither subject matter nor personal jurisdiction over it. We agree. Appellants are seeking to have Kentucky Apparel share in their litigation expenses. Because Kentucky Apparel was never made a party to the litigation, appellants have no legal basis for asserting a claim against it. Put another way, the court never had personal jurisdiction over Kentucky Apparel. Apparel was not before the court. Kentucky Accordingly, the motion of Kentucky Apparel is hereby GRANTED, and it is hereby ORDERED dismissed as a party to this appeal. Appellants make the same claim for apportionment against Humana, which was made a party to this action. Their argument is basically one of equity, maintaining that since it bore the entire burden of litigation, and Humana would have benefitted therefrom had they been successful, it is only fair that Humana pay a proportionate amount of litigation fees. We believe this issue is governed by Commonwealth Health Corp. v. Croslin, Ky., 920 S.W.2d 46 (1996). In Croslin, the Supreme Court considered ERISA’s choice-of-forum provisions. 29 U.S.C. § 1132(e). In that case, the plaintiff had been injured in an accident and filed a tort action. The plaintiff’s ERISA-governed health plan intervened in the tort action, seeking the subrogation of benefits it had paid on the plaintiff’s behalf. After the plan settled its subrogation claim with the tortfeasor, the plaintiff’s counsel filed an Assertion of Attorney’s Lien, seeking to recover attorney fees and costs from the proceeds of the plan’s settlement with the tortfeasor. -3- The trial court granted the plaintiff’s request for fees on the basis that Croslin’s attorneys “had performed work that greatly benefitted [the health plan carrier] by establishing liability, reasonable medical expenses and causation in the underlying litigation.” Id. at 47. This Court affirmed for other reasons. On discretionary review, the Supreme Court reversed. It concluded that the trial court lacked subject-matter jurisdiction over the plaintiff’s claim for attorney fees. It determined that since the action relied on an interpretation of an ERISA plan, it was a “civil action[ brought] under” subsection 1132(e)(1), which provides exclusive jurisdiction in the federal courts. The Court also held that 29 U.S.C. § 1132(a)(1)(B), providing for concurrent jurisdiction in the state and federal courts under limited circumstances1, was simply inapplicable to the claim for attorney fees and court costs. Due to the lack of jurisdiction, the trial court’s judgment was considered a nullity and the case was ordered dismissed, sua sponte. Id. at 48. In the case before us, appellants seek a proportionate amount of litigation costs (expert witness testimony, depositions, exhibits, and trial preparation and presentation) from Humana, the carrier of the ERISA-governed health plan. We must conclude that the Supreme Court’s holding is controlling here. ERISA vests exclusive jurisdiction of this matter in the federal courts. Thus, the trial court lacked subject-matter 1 The three circumstances are actions brought by a plan participant or beneficiary to recover benefits due under the terms of the plan; to enforce rights under the plan; and to clarify rights to future benefits. -4- jurisdiction, and its order denying the motion for proportionate litigation expenses must be affirmed. We further note that this is an additional basis for granting Kentucky Apparel’s motion to dismiss. We now turn to appellants’ evidentiary arguments. Appellants first contend that the admission of Dr. Donald Rauh’s testimony was both a violation of the physician-patient privilege and cumulative. After the perforation of his duodenum by Dr. Emslie, Wood chose to be treated by Dr. Rauh, Dr. Emslie’s partner. On December 9, 1996, through a pretrial compliance document, appellants listed Dr. Rauh as a possible fact and expert witness. They expected Dr. Rauh to testify about the physical and emotional problems Wood suffered after his surgery. On the same date, Dr. Emslie also listed Dr. Rauh as a fact witness. Nine days later, Dr. Emslie notified appellants that he would also have Dr. Rauh testify as an expert on the standard of care issue. Appellants then canceled their deposition of Dr. Rauh. On January 17, 1997, appellants moved in limine to preclude Dr. Emslie from calling Dr. Rauh as an expert witness because of the physician-patient privilege and because his testimony was cumulative under KRE 403. The trial court denied the motion. Kentucky does not recognize a physician-patient privilege. H.H. Waegner & Co. v. Moock, 303 Ky. 222, 197 S.W.2d 254 (1946). When it comes to communications with a patient, a physician is like any other witness--he is “a competent witness concerning any and all facts he may have learned as to [the -5- patient’s] physical condition while treating him privately or while examining him as to his particular injury.” Id. at 256. Further, to the extent a plaintiff puts his medical condition in issue, any purported privilege would be waived. Appellants’ reliance on a workers’ compensation statute, KRS 342.020, and Kentucky’s adoption of the AMA Code of Ethics, KRS 311.597(4), are not persuasive authority in this civil action. While Dr. Rauh has an ethical obligation to Wood concerning confidentiality of communications between them, this is imposed upon him by the very code of ethics appellants cite, but it is not a rule of evidence which would exclude Dr. Rauh’s testimony. Appellants further assert that because Dr. Emslie already had another expert testify on the issue of standard of care, Dr. Rauh’s testimony was cumulative and unduly prejudicial under KRE 403. KRE 403 allows the exclusion of relevant evidence if its probative value is substantially outweighed by its prejudicial effect or needless presentation of cumulative evidence. Appellants espouse that because Dr. Rauh is Dr. Emslie’s partner, his testimony is so biased as to be unreliable. Appellants also point out that Dr. Rauh’s testimony was not credible because of his financial interest in the outcome of the trial. Having one expert testify on the standard of care does not necessarily make a second expert’s similar testimony cumulative. This determination is within the trial judge’s discretion, and we find no abuse thereof in allowing Dr. Rauh’s testimony. See Transit Authority of River City [TARC] v. Vinson, -6- Ky. App., 703 S.W.2d 482, 484 (1985) (citing Tumey v. Richardson, Ky., 437 S.W.2d 201 (1969)). claim of undue prejudice. Nor are we persuaded by appellants’ Appellants were free to elicit on cross-examination that Dr. Rauh and Dr. Emslie were partners and that Dr. Rauh would be financially harmed by an unfavorable judgment. These facts would bring out his bias and lack of credibility. However, bias and credibility go to the weight, not the admissibility, of the evidence. Therefore, the trial court did not err in overruling these objections to Dr. Rauh’s testimony. Finally, appellants maintain that it was error to allow the cumulative and unqualified expert opinion of Dr. Fred Thomas. Both appellants and Dr. Emslie identified that they would use Dr. Thomas, a gastroenterologist, as both a fact and an expert witness and that he was expected to testify regarding Dr. Emslie’s deviation from the standard of care. Dr. Thomas’s deposition surprised appellants, however, when he testified that Dr. Emslie may not have deviated from the national standard of care, that he had not performed an ERCP since 1980, and that he had never performed a sphincterotomy. Dr. Thomas deposed that he would not consider himself an expert on the subject in terms of actually performing the procedures in question but that he would consider himself an expert in terms of knowing what is required in performing the procedures and what the standard of care is. Another expert for appellants, Dr. Fromkes, testified that Dr. Thomas is not an expert on the procedures involved in the case. Appellants then decided not to use Dr. Thomas’s testimony at -7- trial and moved in limine to preclude admission of Dr. Thomas’s testimony by the defendants on the basis that he did not qualify as an expert. Appellants also set forth that Dr. Thomas’s testimony would only confuse, and not assist, the jury under KRE 702. The court denied the motion, and counsel for Dr. Emslie was permitted to read Dr. Thomas’s deposition into evidence. Once again, we find no merit in appellants’ argument that Dr. Thomas’s deposition was cumulative. This was a question for the trial court to determine, and we find no abuse of discretion in the court’s allowing the deposition into evidence. KRE 702 states that a witness can be qualified as an expert based on his knowledge, skill, experience, training, or education. The decision as to whether a witness is qualified to give expert testimony rests within the sound discretion of the trial court. Bass, 839 S.W.2d at 566, (citing Kentucky Power Co. v. Kilbourn, Ky., 307 S.W.2d 9, 12 (1957)). gastroenterologist. Dr. Thomas is a He testified that although he hasn’t performed an ERCP since 1980 and has never performed a sphincterotomy, he nonetheless knew what was required of both procedures and the standard of care pertaining to perforation. Thus, Dr. Thomas has education and knowledge sufficient to render him an expert. See Kabai v. Majestic Collieries Co., 293 Ky. 783, 170 S.W.2d 357, 358 (1943), stating that a physician is entitled to testify as an expert on all matters affecting the human body. He also has some experience and training, albeit not up to the level of Dr. Fromkes. However, the extent of Dr. Thomas’s familiarity with the procedures goes to his credibility -8- as a witness; it does not strip him of qualifying as an expert. Cree v. Hatcher, 969 F.2d 34, 38-39 n.5 (3d Cir. 1992), cert. granted in part by 506 U.S. 984, 113 S. Ct. 490, 121 L. Ed. 2d 429 (1992), and cert. dismissed by 506 U.S. 1017, 113 S. Ct. 1147, 121 L. Ed. 2d 577 (1992). These are factors for the finder of fact to consider and go to the weight, not the admissibility, of Dr. Thomas’s testimony. Kentucky Power Co., 307 S.W.2d at 12. Accordingly, the trial court did not err in allowing the physician’s deposition to be read into evidence. For the foregoing reasons, it is hereby ORDERED that the appeal as to Kentucky Apparel LLP Benefits Plan be, and it hereby is, DISMISSED and the February 1997 Trial Order and Judgment and the August 1997 Order denying appellants’ motion to vacate judgment and motion for proportionate litigation costs are AFFIRMED. MILLER, JUDGE, CONCURS. MILLER, JUDGE, CONCURRING SEPARATELY. I concur with the following observation. Absent an agreement to do so, I know of no rule of law requiring a subrogee to share in legal expenses of its insured relative to an unsuccessful suit against a putative third-party tort-feasor. McANULTY, JUDGE, CONCURS IN RESULT ONLY AND FILES A SEPARATE OPINION. McANULTY, JUDGE, CONCURRING BY SEPARATE OPINION. I agree with the result under the current status of the law and I agree with the majority’s interpretation and application of -9- Commonwealth Health Corporation v. Croslin, Ky., 920 S.W.2d 46 (1996) to the present case. However, I would urge the Supreme Court to review the decision in Croslin, as it creates an unnecessary splitting of jurisdiction. Under Croslin, a provider of an ERISA plan is entitled to intervene in a state action to assert subrogation rights. The provider then is permitted to obtain the benefits of the work of attorneys employed by the insured who settles a case or receives a favorable verdict. After receiving the enrichment of the labor of counsel for another party, the provider cannot be assessed a share of the attorney’s fees by the state court. Rather, the insured must file a separate claim in federal court and incur further legal expenses for any hope of assistance with the legal fees in the original action. Surely this result was not intended by Congress in drafting 29 U.S.C. § 1132(e). As the majority acknowledges, 29 U.S.C. § 1132(a)(1)(B) provides that state courts of competent jurisdiction and district courts of the United States have concurrent jurisdiction of actions brought by a participant or beneficiary: 1) to recover benefits due under the terms of the plan; 2) to enforce rights under the plan; or 3) to clarify rights to future benefits. I respectfully submit that assessing a share of attorney’s fees against an ERISA plan provider that has benefitted from the work of another party’s attorneys is sufficiently related to a claim for benefits due and is therefore an issue over which state and federal courts have concurrent jurisdiction pursuant to § 1132(a). -10- ENTERED: March 5, 1999 /s/ Wil Schroder JUDGE, COURT OF APPEALS BRIEF FOR APPELLANTS: BRIEF FOR APPELLEES, ROBERT EMSLIE, M.D. and GILBERT, BARBEE, MOORE & MCILVOY, P.S.C. d/b/a/ GRAVES GILBERT CLINIC: Joseph L. White Louisville, Kentucky T. Wesley Faulkner Louisville, Kentucky John David Cole Matthew J. Baker Bowling Green, Kentucky BRIEF FOR APPELLEE, KENTUCKY APPAREL LLP BENEFITS PLAN: Murry A. Raines David W. Anderson Bowling Green, Kentucky BRIEF FOR APPELLEE, HUMANA HEALTH PLANS OF KENTUCKY, INC.: Robert L. Keisler, Jr. Jeffrey C. Swann Louisville, Kentucky -11-

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