PINEVILLE COMMUNITY HOSPITAL ASSOCIATION, INC. v. ALICE COX AND LAWRENCE K. BUTCHER, M.D. LAWRENCE K. BUTCHER, M.D. v. ALICE COX AND PINEVILLE COMMUNITY HOSPITAL ASSOCIATION, INC.
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RENDERED:
April 27, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002223-MR
PINEVILLE COMMUNITY HOSPITAL ASSOCIATION, INC.
v.
APPEAL FROM BELL CIRCUIT COURT
HONORABLE FARMER H. HELTON, JUDGE
ACTION NO. 97-CI-00091
ALICE COX AND
LAWRENCE K. BUTCHER, M.D.
AND:
NO.
APPELLEES
1999-CA-002226-MR
LAWRENCE K. BUTCHER, M.D.
v.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE FARMER H. HELTON, JUDGE
ACTION NO. 97-CI-00091
ALICE COX AND
PINEVILLE COMMUNITY HOSPITAL ASSOCIATION, INC.
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
APPELLANT
GUDGEL, CHIEF JUDGE; DYCHE AND MILLER, JUDGES.
APPELLEES
MILLER, JUDGE:
Lawrence K. Butcher, M.D. brings Appeal No.
1999-CA-002226-MR, and Pineville Community Hospital Association,
Inc. brings Appeal No. 1999-CA-002223-MR from a July 16, 1999,
judgment of the Bell Circuit Court.
We affirm.
In April 1985, Alice Cox was examined by Dr. Lawrence
K. Butcher in the emergency room of Pineville Community Hospital.
Dr. Butcher diagnosed Cox as having an “ectopic pregnancy”1
necessitating immediate emergency surgery.
During the course of
surgery, Dr. Butcher used “laparatomy packs” or “sponges.”
According to testimony of hospital operative staff and/or of Dr.
Butcher, the number of packs had been counted before surgery and
then twice following completion of surgery.
Both Dr. Butcher and
the hospital's operative staff testified that there was no
discrepancy between the number of packs counted before surgery
and following surgery.
Some six years later, on February 15, 1991, Cox fell
over a coffee table injuring her “tailbone” and went to the
emergency room at Middlesboro Appalachian Regional Hospital.
An
x-ray was performed upon Cox and revealed a “foreign object” in
her abdomen.
An emergency room physician recommended additional
tests, but Cox refused.
The physician instructed Cox to follow
up with her family physician.
In relation to these events, Cox
testified as follows:
Q
You said in 1991 you fell?
A
Uh-huh (affirmative).
1
A pregnancy occurring elsewhere than in the cavity of the
uterus. STEDMAN'S MEDICAL DICTIONARY 440 (4th ed. 1976).
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. . . .
And I thought I broke my hip or
something, so I went to the hospital
the next morning and Dr. Cabuay -- it
was a foreign doctor that saw me and he
said, lady, I think you have something
in your pocket. He said there's
something inside you or something. And
I thought well, you're crazy, there's
nothing -- he made -- he made me think
there was some kind of something in me
beside something I didn't know. And I
went to -- I panicked. I got scared
and I ran out of the hospital.
(Plaintiff's deposition pp. 15-16.)
. . . .
A
He sent me for an x-ray.
Q
Okay, and what did those x-rays show;
do you know?
A.
He said it looked like something in -inside of me, like an object or
something. He didn't know what it was.
And I took it to be a tumor or cancer
or something like that. And I didn't
want no more operations, because I
don't like doctors that good.
(Plaintiff's deposition p. 17.)
Because of declining health, Cox underwent exploratory surgery on
June 3, 1996.
During this procedure, an encapsulated sponge was
found in Cox's abdomen.
On March 6, 1997, Cox filed an action in the Bell
Circuit Court against Butcher and Pineville Community Hospital.
Therein, she alleged that Butcher and Pineville Community
Hospital were negligent for injuries she sustained when a
surgical sponge, also referred to as a laparatomy pack, was left
in her abdomen during the April 1985 surgery.
Pursuant to a jury
verdict, the trial court entered judgment in favor of Cox in the
amount of $417,500.00, of which twenty-five percent was allocated
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against Butcher and seventy-five percent against Pineville
Community Hospital.
The award included $300,000.00 for past pain
and suffering, $100,000.00 for future pain and suffering, and
$17,500.00 for medical expenses.
In an August 18, 1999, order,
the trial court reduced the medical award to $8,218.41.
This
appeal follows.
APPEAL NO. 1999-CA-002226-MR
Dr. Butcher contends the trial court committed error by
overruling his motion for summary judgment upon statute of
limitation grounds.
Summary judgment is proper where there
exists no material issue of fact and movant is entitled to
judgment as a matter of law.
Ky. R. Civ. P. (CR) 56; Steelvest,
Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476
(1991).
The applicable statute of limitations is found in
Kentucky Revised Statutes (KRS) 413.140, which states, in
relevant part, as follows:
(1) The following actions shall be
commenced within one (1) year after the cause
of action accrued:
. . . .
(e) An action against a physician,
surgeon, dentist or hospital licensed
pursuant to KRS Chapter 216 for negligence or
malpractice.
. . . .
(2) . . . the cause of action shall be
deemed to accrue at the time the injury is
first discovered or in the exercise of
reasonable care should have been discovered .
. . .
Under Kentucky law, it is well established that:
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The statute begins to run on the date of the
discovery of the injury, or from the date it
should, in the exercise of ordinary care and
diligence, have been discovered. [Citation
omitted.] This rule entails knowledge that a
plaintiff has a basis for a claim before the
statute of limitations begins to run.
Wiseman v. Alliant Hospitals, Inc., Ky., ____ S.W.3d ____
(rendered November 22, 2000)(quoting Hackworth v. Hart, Ky., 474
S.W.2d 377, 379 (1971)).
In order to trigger the statute of
limitations under the discovery rule, the plaintiff must know:
(1) she has been wronged, and (2) by whom the wrong has been
committed.
Wiseman, ____ S.W.3d ____ (citing Drake v. B.F.
Goodrich Company, 782 F.2d 638 (6th Cir. 1986)), Hazel v. General
Motors Corp., 863 F. Supp. 435 (W.D. of Ky. 1994).
Indeed, it is
necessary the plaintiff possess knowledge of the injury and the
causal relationship to the malpractice.
See Wiseman, ____ S.W.3d
_____.
Dr. Butcher argues that the statute of limitations was
triggered in February 1991 when the x-ray revealed a foreign body
in Cox's abdomen.
Dr. Butcher maintains that at the very least a
question of fact existed upon whether a reasonable person should
have known of the “injury” in February 1991.
We disagree.
Under the circumstances of the instant case, we do not
believe that the February 1991 x-ray was sufficient to trigger
the statute of limitations.
The object upon the x-ray could have
been a variety of diseases and/or conditions.
been the product of a faulty x-ray.
It also could have
As stated by the circuit
court in its January 26, 1999, order:
Not even the doctors knew what was in her
body until the surgery. This area between
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the thorax and pelvis is an area susceptible
of multiple conditions.
In sum, we do not think the x-ray was sufficient to put Cox on
notice of her injury -- the encapsulated sponge.
Additionally, we simply do not believe an issue of fact
existed.
It is undisputed that the x-ray in no way revealed a
causal relationship between the foreign object and the 1985
surgery.
As a matter of law, we do not think the February 1991
x-ray would put a reasonable person upon notice that a sponge was
left in the abdomen from a 1985 surgery.
Hence, we hold the
trial court did not commit error by denying Dr. Butcher's motion
for summary judgment upon statute of limitation grounds.
We
think that Cox's action was timely filed as a matter of law.
Dr. Butcher also argues the trial court committed error
by granting Cox's motion for partial summary judgment upon the
issue of liability.
The trial court entered summary judgment
concluding that Dr. Butcher was negligent per se2 relying upon
Laws v. Harter, Ky., 534 S.W.2d 449 (1975).
In Laws, appellant underwent a type of thoracic surgery
known as the Thal procedure.
In the procedure, an incision was
made in the chest wall to gain entry to appellant's chest cavity
and then an additional incision was made through the diaphragm to
access the abdominal cavity.
Before the incision in the
diaphragm was closed, a sponge count was made and reported
accurate.
The incision in the diaphragm was then closed.
2
A
We use the terms “negligent per se” and “negligent as a
matter of law” interchangeably.
-6-
second sponge count was made prior to closing the incision
through the chest wall, and the count revealed that one sponge
was missing.
A search for the sponge was made in the chest
cavity to no avail.
The surgeon ordered x-rays for the purpose
of locating the sponge; however, the sponge was not located upon
x-ray.
The surgeon then decided that it would be better to close
and later explore for the missing sponge.
Subsequent x-rays of
appellant revealed the sponge in the abdomen.
An additional
operation successfully removed the sponge.
Appellant asserted that it is negligence per se for a
surgeon to leave a sponge inside of a patient.
Upon this issue,
the Court opined:
We conclude that appellee . . . was negligent
as a matter of law. It may be true, as he
claims, that when it was discovered that a
sponge was missing, he exercised to the
highest degree all of the skills known to the
medical profession in his attempt to locate
the missing sponge, and having failed to
locate it, the condition of the patient at
that time may have been such that any
reasonably prudent surgeon would have closed
the patient.
However exemplary the care given to appellant
after discovering that a sponge was missing,
the fact remains that when the incision
through the diaphragm was closed a sponge was
left in the abdomen. The sponge count at
that time failed to show any sponge missing
but in truth one of the sponges was missing
and the count was inaccurate. The failure to
correctly account for the sponges under the
circumstances constituted negligence as a
matter of law. (Emphasis added.)
Id. at 450, 451.
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Dr. Butcher disagrees with the trial court's reliance
upon Laws and points to a recent case of this Court -- Chalothorn
v. Meade, Ky. App., 15 S.W.3d 391 (1999).
In Chalothorn,
appellee underwent a cesarean delivery of her baby.
An initial
count of sponges indicated that one was missing; however, the
circulating nurse called the nursery and was informed that a
sponge had accompanied the baby from the operating room to the
nursery.
The nurse then informed the doctor the count was
correct.
He closed the incision and finished the operation.
At
a later time, the hospital staff determined the sponge in the
nursery was not a surgical sponge.
The doctor then arranged for
removal of the sponge which was accomplished by laparoscopy and
without complications.
The issue presented in Chalothorn was
whether the physician was negligent as a matter of law for
leaving a sponge inside of appellee.
The Chalothorn Court
determined the physician was not and held Laws distinguishable:
The Laws case is distinguishable from the
present case in that the physician in Laws
was aware that a sponge was missing when he
decided, for medical reasons, to go ahead and
close the incision. He apparently felt that
it was better to go ahead and close the
patient and try to find the sponge later
(either inside or outside of the patient)
than to leave the patient open for an
extended period of time. The Court of
Appeals held that closing the patient with a
missing sponge was negligence per se.
In the present case, the sponge count was
reported to Dr. Chalothorn as correct. There
was no decision to close . . . [appellee's]
incision while a sponge was unaccounted for.
Chalothorn, 15 S.W.3d 391, 393.
-8-
Relying upon Chalothorn, Dr. Butcher argues that he was
not negligent per se because the sponge count was reported to him
as correct as was the case in Chalothorn; thus, he maintains the
trial court erred by entering partial summary judgment.
We do not now interpret the Laws decision as it was
interpreted in Chalothorn.3
In Laws, the sponge count was
reported to the surgeon as correct when the diaphragm was closed
-- locking the sponge in the abdominal cavity.
as pivotal.
We view this fact
As previously stated, the incision in the diaphragm
was made so that the surgeon could access the abdominal cavity.
The sponge was left in the abdominal cavity.
The Court concluded
that failure to correctly account for sponges before closing the
diaphragm constituted negligence per se.
As specifically held by
the Court:
[T]he fact remains that when the incision
through the diaphragm was closed a sponge was
left in the abdomen. The sponge count at
that time failed to show any sponge missing
but in truth one of the sponges was missing
and the count was inaccurate. The failure to
correctly account for the sponges under the
circumstances constituted negligence as a
matter of law. (Emphasis added.)
Laws, 534 S.W.2d 449, 450-451.
Unlike Chalothorn, we do not believe Laws stood for the
proposition that a physician is negligent per se only when he
decides to close a patient with knowledge that a sponge is
missing.
As a matter of fact, we are of the opinion Laws stands
3
The Court of Appeals is bound to follow Supreme Court
precedent. Rule of the Supreme Court (SCR) 1.030(8)(a).
-9-
for the exact opposite proposition.
In Laws, the Court explained
that the surgeon exercised the highest degree of skills known to
the medical profession in his attempt to locate the missing
sponge, and having failed to locate it, acted as any reasonably
prudent surgeon in closing the patient.
The surgeon in Laws was
not held negligent per se because of closing the patient's chest
cavity knowing a sponge was missing, but rather for closing the
diaphragm based upon an inaccurate sponge count.
In sum, we
interpret Laws as holding that a sponge left inside a patient's
body because of the failure to correctly account for sponges
during an operation constitutes negligence as a matter of law.
As such, we are of the opinion that the circuit court did not
commit error by entering partial summary judgment finding Dr.
Butcher negligent per se for leaving a sponge in Cox during the
1985 operation.
Dr. Butcher also contends the trial court committed
error by failing to give a comparative negligence or
apportionment instruction permitting the jury to consider Cox's
liability.
In this Commonwealth, the trial court has a duty to
instruct upon any theory of law supported by the evidence
introduced at trial.
(1991).
Risen v. Pierce, Ky., 807 S.W.2d 945
In the case at hand, we do not believe that Dr. Butcher
was entitled to a comparative negligence or apportionment
instruction.
Dr. Butcher proposed such instructions were
warranted because Cox had a duty to use ordinary care and
reasonable diligence to secure appropriate treatment for her
injury.
See Deutsch v. Shein, Ky., 597 S.W.2d 141 (1980).
-10-
Moreover, Dr. Butcher argues Kentucky law imposes a duty upon Cox
to mitigate her damages.
(1970).
See Blair v. Eblen, Ky., 461 S.W.2d 370
We agree with Dr. Butcher that such is the law in this
Commonwealth; however, Dr. Butcher overlooks the fact that Cox
was unaware of her injury until 1996.
We do not believe that Cox
had a duty to seek appropriate treatment of an injury or to
mitigate damages until she knew of the injury.
To hold otherwise
simply defies common sense.
Moreover, the law in relation to neglect injuries does
not preclude recovery for enhanced damages so long as the injured
person acts reasonably.
See City of Covington v. Keal, 280 Ky.
237, 133 S.W.2d 49 (1939).
The circumstances under which Cox
found herself by reason of Dr. Butcher's negligence do not lead
us to conclude that her response was unreasonable.
As such, we
reject Dr. Butcher's argument.
Dr. Butcher further maintains the circuit court
committed error by failing to direct a verdict or sustain a
motion for new trial upon the grounds that the negligence of the
hospital's nursing staff was a superseding or intervening cause.
We disagree.
In Barnett's Adm'r v. Brand, 165 Ky. 616, 177 S.W.
461, 464 (1915), the Court stated:
In performing an operation, it is the
duty of a surgeon to exercise reasonable care
and skill. The operation begins when the
incision is made and ends when the opening
has been closed in the proper way, after all
the appliances necessary to a successful
operation have been removed from the body.
Throughout the operation the law imposes on
the surgeon the duty of exercising such care
and skill. The removal of the sponges or
pads is a part of the operation, and an
operation cannot be said to be concluded
-11-
until such removal takes place. For this
reason, it is generally held that a surgeon
cannot relieve himself from liability for
injury to a patient by leaving a sponge in
the wound after the operation, by any custom
or rule requiring the attending nurse to
count the sponges used and removed,
accompanied by the statement of the nurse
that the sponges were all properly accounted
for, and his reliance on such statement.
(Emphasis added.)
See also City of Somerset v. Hart, 549 S.W.2d 814 (1977) (holding
that operating room staff acts as servants of both of the surgeon
and the hospital as a matter of law).
Under Kentucky law, Dr.
Butcher cannot escape liability for leaving a sponge in a patient
by relying upon the operating room staff.
Id.
Dr. Butcher also asserts the evidence did not support
an instruction on future and past pain and suffering.
The jury
awarded Cox $300,000.00 for past pain and suffering and
$100,000.00 for future pain and suffering.
her health problems started in 1988.
Cox testified that
At that time, she
experienced lack of energy and loss of weight.
symptoms worsened.
In 1995, her
She testified to vomiting frequently, to
feeling “real bad,” and to being unable to eat.
She stated that
most of the domestic chores were done by her daughter.
We think
this evidence sufficient to create a submissible jury issue upon
damages for past pain and suffering.
See Risen, 807 S.W.2d 945.
As to future pain and suffering, Cox offered the
testimony of Dr. Meredith Evans.
Dr. Evans testified that Cox
might indeed experience problems in the future as a result of the
surgery or adhesions resulting thereof.
-12-
We believe this evidence
sufficient to present a submissible jury question of future pain
and suffering.
See Id.
Dr. Butcher further argues that the trial court
committed error by allowing Cox to recover damages for pain and
suffering when she did not disclose same in an answer to an
interrogatory as provided by CR 8.01.
In Fratzke v. Murphy, Ky.,
12 S.W.3d 269 (1999), the Court held that failure to specify the
amount of damage for pain and suffering in an answer to an
interrogatory requesting disclosure of such unliquidated damage
barred recovery of same at trial.
We have searched the appellate
record and have been unable to located the propounded
interrogatory and/or Cox's answer to same.
The parties disagree
as to whether the propounded interrogatory specifically requested
disclosure of damage for pain and suffering.
It is well established that the burden is upon
appellant to include in the appellate record all that is
necessary for appellate review.
See Burberry v. Bridges, Ky.,
427 S.W.2d 583 (1968), and Fanelli v. Commonwealth, Ky., 423
S.W.2d 255 (1968), rev'd on other grounds, Ky., 445 S.W.2d 126
(1969).
The propounded interrogatory and answer are essential to
our review.
Without the documents properly admitted into the
record, we are unable to examine the exact language of the
propounded interrogatory and of the answer.
As such, we
summarily affirm the trial court upon this issue.
Dr. Cox contends that the trial court erred by allowing
introduction of an enlarged photo of the encapsulated sponge
removed from Cox's abdomen and by refusing to grant a mistrial
-13-
when appellee's counsel instructed the jury in closing arguments
to send a message.
We view these alleged errors, individually or
cumulatively, as merely harmless.
CR 61.01.
We simply do not
believe these alleged errors rise to the level of substantial
prejudice requiring reversal of the judgment.
See Hall v.
Hamlin, Ky., 484 S.W.2d 853 (1972).
APPEAL NO. 1999-CA-002223-MR
Upon the grounds enunciated in Appeal No. 1999-CA002226-MR, we likewise affirm Appeal No. 1999-CA-002223-MR.4
For the foregoing reasons, the judgment of the Bell
Circuit Court is affirmed.
GUDGEL, CHIEF JUDGE, CONCURS.
DYCHE, JUDGE, CONCURS IN RESULT.
BRIEFS FOR APPELLANT,
PINEVILLE COMMUNITY HOSPITAL
ASSOCIATION, INC.:
BRIEF FOR APPELLEE, ALICE COX:
Martha F. Copeland
Brien G. Freeman
Todd K. Childers
Corbin, Kentucky
James P. Grohmann
Louisville, Kentucky
BRIEFS FOR APPELLANT,
LAWRENCE K. BUTCHER, M.D.:
Mark E. Nichols
Melanie S. Marrs
Lexington, Kentucky
4
In its reply brief, Pineville Community Hospital attaches a
proposed interrogatory and answer as “Exhibit 1" and “Exhibit 2.”
It does so to support the argument that Cox failed to comply with
Ky. R. Civ. P. 8.01. The propounded interrogatory and answer was
not found in the appellate record, and thus is not before this
Court. It was, therefore, improper to include such “exhibits” in
the reply brief. See Croley v. Alsip, Ky., 602 S.W.2d 418
(1980).
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