RUBY OLIVER AND FELIX L. OLIVER v. SIBU P. SAHA, M.D., AND CARDIOVASCULAR AND THORACIC
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RENDERED: July 16, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001036-MR
RUBY OLIVER AND FELIX L. OLIVER
v.
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA OVERSTREET, JUDGE
ACTION NO. 94-CI-002797
SIBU P. SAHA, M.D., AND
CARDIOVASCULAR AND THORACIC
ASSOCIATES, PSC
APPELLEES
OPINION
AFFIRMING
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BEFORE: BUCKINGHAM, COMBS, and McANULTY, Judges.
McANULTY,
JUDGE:
Ruby
(Ruby)
and
Felix
(Felix)
Oliver,
both
proceeding pro se, appeal from the March 30, 1998, trial judgment
and
verdict
dismissing
their
medical
malpractice
suit
with
prejudice and from the April 7, 1998, order overruling their motion
to set aside verdict and for a new trial.
A unanimous jury found
that the defendant, Sibu Saha, M.D., did not fail to perform his
duty to inform Ruby of the risks of the surgical operation and of
any alternative procedures which were medically available or his
duty to exercise the appropriate degree of skill in his treatment
of Ruby.
Having reviewed the trial court record, and the parties’
respective briefs, we find no error.
Therefore, we affirm.
At the outset of this opinion, the Court notes that Ruby
attached several exhibits to her brief which were not presented to
the jury at trial.
Because those “exhibits” are not a part of the
record on appeal, they have been disregarded in our consideration
of the merits of the appeal.
Croley v. Alsip, Ky., 602 S.W.2d 418
(1980).
This lawsuit arose as a result of a November 1, 1993,
surgery to remove what was later identified as a mediastinal cyst
from below Ruby’s clavicle.
Prior to the surgery, Ruby and her
husband, a licensed and practicing radiologist, met with Dr. Saha
to discuss Ruby’s condition and future treatment.
Ruby neither
sought a second opinion, nor did she ask or seek to ask any
questions of Dr. Saha regarding the proposed surgery.
On October
31, 1993, prior to surgery, Ruby signed an operative permit form in
the presence of a witness which stated in part that:
5.
I have talked to the above named doctor
and he has explained to my satisfaction the
nature
and
purpose
of
the
operation,
with
possible alternative methods of treatment as
well
as
complications.
No
guarantee
or
assurance has been given to me by anyone as to
the results that may be obtained by surgery or
anesthesia.
Drs. Saha, Rogers, Earle, and Wilcox were the named physicians on
the operative permit form.
The following day, Dr. Saha performed
a thorocotomy, which is an invasive procedure, to remove the mass.
She sustained one (1) broken rib in the course of the operation.
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Following this procedure, Ruby developed a condition known as postthorocotomy pain syndrome and has continued to experience pain.
Ruby and Felix filed a complaint on September 16, 1994,
against Michael G. Estridge, M.D., Lexington Clinic, P.S.C., Sibu
P. Saha, M.D., and Cardiovascular and Thoracic Associates, P.S.C.
for the failure to properly evaluate, diagnose, and treat the
condition from which Ruby was suffering and that this failure
caused Ruby to incur permanent injuries and damages.
As to Dr.
Saha
failed
in
particular,
the
complaint
alleged
that
he
to
disclose less invasive procedures, to properly treat the condition,
to mention possible complications, or to obtain the proper informed
consent.
Felix’s claim was for the loss of society and services of
consortium of Ruby, his wife.
The claims against Dr. Estridge and
Lexington Clinic were later settled and dismissed.
The claims
against Dr. Saha and Cardiovascular and Thoracic Associates were
not settled, and proceeded to a trial by jury from March 2 through
March 5, 1998.
Ruby and Felix were represented by counsel at
trial.
At trial, both sides presented expert testimony regarding
the appropriate procedure to follow in Ruby’s situation and whether
Dr. Saha obtained informed consent from Ruby for the operation.
Ruby and Felix presented testimony that Dr. Saha should and could
have performed a less invasive surgery (either a video-assisted
thoroscopic surgery or a needle aspiration), and that Dr. Saha
should have told Ruby of these other less invasive procedures
available to her.
Ruby argued that due to Dr. Saha’s failure to
tell her of the other options available and the possible side
effects of the procedure performed, she did not give an informed
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consent for the thorocotomy. On the other hand, Dr. Saha presented
testimony that a thorocotomy was the only viable option under the
circumstances and that he did receive informed consent from Ruby
for the proposed operation.
At
the
close
of
the
evidence,
instructions and interrogatories to the jury.
the
judge
read
the
After reviewing the
conflicting evidence presented at trial, the jury returned a
unanimous verdict for the defense on both instructions.
The
lawsuit was dismissed with prejudice on March 20, 1998.
On March 30, 1998, Ruby and Felix moved to set aside the
verdict and for a new trial.
The grounds cited in the motion were
a defense witness’s contact with the jury during a break in the
course
of
the
trial,
errors
in
the
causation, and other errors at trial.
instructions
relating
to
Following an oral argument
on the motion, at which time only the first two grounds were
argued, Judge Overstreet orally overruled the motion from the bench
and then issued and had entered a written order overruling the
motion on April 7, 1998.
This appeal followed.
Ruby’s brief filed in support of her appeal to this Court
appears to be a recitation of the contested matters presented to
the jury, along with some statements which are admittedly not a
part of the record on appeal.
The appellees have argued that this
Court should not disturb the jury verdict and that Ruby and Felix
have failed to present any error committed by the trial court in
their brief.
We agree with the appellees.
It is well settled in Kentucky that a reviewing court may
not usurp the province of the jury and disturb its findings on
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conflicting evidence. In Stewart v. Sizemore, Ky., 306 S.W.2d 821,
823 (1957), the Court stated that:
it is not within the province of the Court to
usurp the prerogative of a jury and decide as
a matter of law which set of witnesses is
worthy of belief.
A definite issue was
developed on the point in question, which was
supported by substantial competent evidence on
behalf of each of the parties, and neither the
trial court nor this one may exercise
independent
judgment
in
evaluating
this
particular testimony.
Id. at 823.
Citing the Stewart case, the Court in Fields v. Baker,
Ky., 329 S.W.2d 376 (1959), held that when there was evidence on
each side that was substantial enough to go to a jury, a reviewing
court could not usurp the prerogative of the jury and disturb its
findings.
In Horton v. Union Light, Heat & Power Co., Ky., 690
S.W.2d 382, 385 (1985), the Supreme Court stated that “an appellate
court must not substitute its findings of fact for those of the
jury if there is evidence to support them.”
In our review of the
trial, we found substantial evidence presented at trial to support
the jury’s unanimous verdict.
Therefore, we will not disturb the
jury’s findings.
Ruby also failed to present any errors of the trial court
in her brief.
reversal
of
a
“It is incumbent upon the litigant who seeks
trial
court’s
judgement
to
demonstrate
to
an
appellant court that the trial court has committed error which is
prejudicial to the substantial rights of the litigant.” Bingham v.
Davis, Ky., 444 S.W.2d 123, 123 (1969).
Ky.,
373
S.W.2d
591
(1963),
this
Citing Ballard v. King,
Court
later
ruled
that
“a
reversing court will generally confine itself to errors pointed out
in the briefs and will not search the record for errors.”
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Milby v.
Mears, Ky.App., 580 S.W.2d 724, 727 (1979). Because Ruby failed to
demonstrate that the trial court committed any error, her appeal
must fail.
Based upon the foregoing, the judgment of the Fayette
Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ruby Oliver, Pro se
Felix L. Oliver, Pro se
Lexington, KY
John M. Famularo
Darren J. Duzyk
Lexington, KY
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