MARILYN JENKINS, AS PARENT AND NEXT FRIEND OF JUSTIN BRANUM, A MINOR v. GAIL BEST, M.D.; AND UNIVERSITY OBSTETRICAL AND GYNECOLOGICAL JOHN M. FARMER, M.D.; BAPTIST HEALTHCARE SYSTEM, INC., D/B/A BAPTIST HOSPITAL EAST; AND MARILYN JENKINS, AS PARENT AND NEXT FRIEND OF JUSTIN BRANUM, A MINOR
Annotate this Case
Download PDF
RENDERED: SEPTEMBER 28, 2007; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001277-MR
MARILYN JENKINS, AS PARENT AND
NEXT FRIEND OF JUSTIN BRANUM, A
MINOR
v.
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 03-CI-008889
GAIL BEST, M.D.; AND UNIVERSITY
OBSTETRICAL AND GYNECOLOGICAL
ASSOCIATES, P.S.C.
AND
APPELLEES
NO. 2006-CA-001286-MR
JOHN M. FARMER, M.D.; BAPTIST
HEALTHCARE SYSTEM, INC., D/B/A
BAPTIST HOSPITAL EAST; AND
MARILYN JENKINS, AS PARENT AND
NEXT FRIEND OF JUSTIN BRANUM, A
MINOR
v.
APPELLANT
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 03-CI-008889
GAIL BEST, M.D.; AND UNIVERSITY
OBSTETRICAL AND GYNECOLOGICAL
ASSOCIATES, P.S.C.
AND
NO. 2006-CA-001295-MR
BAPTIST HEALTHCARE SYSTEM, INC.
D/B/A BAPTIST HOSPITAL EAST
v.
APPELLEES
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 03-CI-008889
GAIL BEST, M.D.; AND UNIVERSITY
OBSTETRICAL AND GYNECOLOGICAL
ASSOCIATES, P.S.C.
APPELLEES
OPINION AND ORDER
AFFIRMING IN PART,
REVERSING AND REMANDING IN PART
** ** ** ** **
BEFORE: ACREE AND TAYLOR, JUDGES; KNOPF,1 SENIOR JUDGE.
ACREE, JUDGE: Marilyn Jenkins (“Jenkins”), John M. Farmer, M.D. (“Dr. Farmer”)
and Baptist Healthcare System, Inc. d/b/a Baptist Hospital East (“Baptist Hospital”) bring
three separate appeals challenging summary judgments in favor of Gail Best, M.D. (“Dr.
1
Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
-2-
Best”) and University Obstetrical and Gynecological Associates, P.S.C. (“University
Associates”) entered in Jenkins' medical malpractice action. Having thoroughly
examined the record, we conclude that Dr. Farmer and Baptist Hospital have no standing
to challenge the summary judgments in favor of their former co-defendants, and their
appeals shall be dismissed. With regard to the remaining appeal filed by Jenkins, we
affirm the summary judgment in favor of Dr. Best and reverse and remand the summary
judgment in favor of University Associates.
FACTS
Lacking the services of a perinatology2 specialist on its own staff, Baptist
Hospital contracted with University Associates to provide them. Pursuant to the contract,
University Associates was to employ its own “perinatologists to provide perinatology
services for [Baptist Hospital] and patients . . . on call . . . on a 24 hours-a-day and seven
days-a-week basis.”
Additionally, the contract required University Associates “to provide a
Medical Director to provide administrative services” who would serve on hospital
committees, report to the medical staff, develop Baptist Hospital's perinatology services
policy, and provide continuing medical education lectures. Furthermore, the Medical
Director was also required to “[p]articipate in activities related to advertising the
perinatology services [offered by Baptist Hospital, a]ssist in Certificate of Need
applications, hearings and proceedings [and h]elp prepare for JCAHO [Joint Commission
2
Perinatology is a subspecialty of obstetrics concerned with care of the mother and fetus during
pregnancy, labor, and delivery, particularly when the mother or fetus is at high risk for
complications. STEDMAN'S MEDICAL DICTIONARY 1459 (28th ed. 2006).
-3-
on Accreditation of Healthcare Organizations] and state licensing visits annually.” The
purpose of the contract therefore was not simply to provide services to patients, but to
enhance the credentials and reputation of Baptist Hospital.
The particular contract before us, signed on October 11, 2001, was an
extension or renewal of a previous agreement under which University Associates had
been providing these services to Baptist Hospital since at least 1998. The contract was
mutually nonexclusive, permitting both parties to enter into similar contracts with others.
University Associates did enter into at least one other contract, with the University of
Louisville Hospital, to provide these same services.
Dr. Best is a medical doctor with advanced training in obstetrics and
gynecology, specifically, in perinatology. University Associates engaged Dr. Best as an
employee to assist in performing the perinatology services required of University
Associates in fulfilling its service contracts both with University of Louisville Hospital
and with Baptist Hospital.
On March 28, 2003, University Associates scheduled Dr. Best to be on call
to deliver babies at the University of Louisville Hospital from 5:00 p.m. until 8:00 a.m.
the next morning. This contract required Dr. Best to remain in-house at that hospital
during the thirteen-hour shift. University Associates also scheduled Dr. Best to be on call
during this same time period to perform perinatal care at Baptist Hospital. University
Associates had no contingency plan in the event the actual demands of both contracts
required simultaneous performance.
-4-
In the late afternoon of March 28, 2003, the family of Marilyn Jenkins took
her to Baptist Hospital for her second visit that day. She was thirty weeks pregnant and
complained of abdominal pain and vaginal bleeding during both visits. Baptist Hospital
nurses provided Jenkins' initial care that evening, though they consulted with Dr. Farmer
by telephone. Dr. Farmer is a general obstetrician who saw Marilyn Jenkins pursuant to
his crossover cover arrangement with Dr. Robert Schweitzer, her regular obstetrician.
At first, the nurses did not believe the unborn child was in any particular
distress. Jenkins' potassium levels were variable and appeared low but they were
showing reassuring signs of rising. This was reported to Dr. Farmer by telephone. He
ordered that Jenkins be given oral potassium after which she could go home. But her
family members, concerned about her bleeding, wanted her to be seen by a physician.
Responsive to this request and “to more or less reassure the family,” Dr. Farmer ordered
an ultrasound to be performed by a perinatologist. The nurse told Jenkins, and
presumably her family, of the plan for an ultrasound.
The duty nurse called Dr. Best at 9:02 p.m. to request that she come and
perform the ultrasound. Dr. Best's testimony and the nurse's notes show that “Dr. Best
said she can't come tonight but may be able to do [the ultrasound] in the a.m.” The nurse
telephoned Dr. Farmer, telling him that Dr. Best was unable to see Jenkins until the
morning. Dr. Farmer decided to go to the hospital to examine Jenkins himself.
Dr. Farmer arrived at the hospital at 9:27 p.m. and undertook an
examination of Jenkins. He noted “only very scant” blood, but no active bleeding, and
-5-
the cervix appeared closed. He then ordered a twenty-three hour admission for Jenkins,
ordered bed rest for the patient, and for vital signs to be taken every four hours. He
decided that the ultrasound should be conducted in the morning to rule out placenta
previa.3 A nurse, following this order, contacted Dr. Best at 10:04 p.m. to schedule the
ultrasound for the next morning.
When the shift changed at 11:00 p.m., a new nurse assigned to Jenkins
examined her and became concerned. Shortly before midnight, the nurse called Dr.
Farmer expressing that concern and informing him of Jenkins' condition. She gave Dr.
Farmer the vital signs for Jenkins and for her unborn baby. Dr. Farmer ordered that
Jenkins be immediately transferred to a third hospital, Norton Suburban Hospital, where a
complete obstetrical ultrasound could be performed that night. Early the next morning,
Jenkins delivered her son by Caesarian section. Justin Branum was born with hypoxic
ischemic encephalopathy4 which rendered him permanently and totally disabled. Sadly,
Jenkins' counsel informed the Court during oral argument that Justin subsequently passed
away.
When deposed, Dr. Farmer stated that he was unaware that University
Associates had no contingency plan in the event Dr. Best was unable to come to Baptist
Hospital. He knew, however, that he had initially requested that the ultrasound be
3
Placenta previa is a condition in which the placenta is implanted in the lower segment of the
uterus thereby partially or completely obstructing the internal bone of the cervix. STEDMAN'S
MEDICAL DICTIONARY 1502 (28th ed. 2006).
4
Hypoxic ischemic encephalopathy is a term for irreversible brain damage caused by a lack of
oxygen and blood flow to the brain, often occurring during birth. STEDMAN'S MEDICAL DICTIONARY
588 (27th ed. 2000).
-6-
conducted that evening and not the next morning. He insists that he ordered a complete
Level 2 obstetrical ultrasound by a qualified perinatologist, not merely a routine Level 1
ultrasound. He assumed that the nurses had apprised Dr. Best of Jenkins' condition.
Based on this assumption, knowledge and lack thereof, Dr. Farmer assumed that Dr.
Best's decision to conduct the ultrasound in the morning was indicative of her opinion
that Jenkins' medical condition was not urgent. Dr. Farmer testified that his belief was
bolstered by his assumption that if Dr. Best had not been comfortable putting off the
ultrasound until the morning, she would have arranged for another specialist to conduct
the ultrasound that night. This she did not do.
PROCEDURAL HISTORY
On October 10, 2003, Jenkins filed a medical malpractice action in
Jefferson Circuit Court against Baptist Hospital, Dr. Farmer, University Associates, Dr.
Best, and Norton Healthcare, Inc. d/b/a Norton Suburban Hospital. No cross-claims were
filed. After nearly two years of discovery, University Associates and Dr. Best filed
motions for summary judgment to which Baptist Hospital and Dr. Farmer responded.
Jenkins filed no written response, but verbally adopted the written responses of Baptist
Hospital and Dr. Best by reference during the January 2006 hearing.
At the hearing, Dr. Best argued that she never had a physician-patient
relationship with Jenkins. Therefore, Dr. Best owed no duty to Jenkins and was entitled
to judgment as a matter of law. University Associates argued that, because Dr. Best
owed no duty to Jenkins, it could not be vicariously liable to her.
-7-
In opposing these motions, Baptist Hospital and Dr. Farmer did not dispute
the absence of the traditional physician-patient relationship. Instead, they presented two
arguments to get around its absence. First, they argued that Kentucky has adopted a
“universal duty of care” wherein every person owes a duty to every other person to
exercise ordinary care to prevent foreseeable injury. Second, they argued that Jenkins
was a third-party beneficiary of the contract between Baptist Hospital and University
Associates.
The Jefferson Circuit Court rejected both arguments of Baptist Hospital and
Dr. Farmer. On March 23, 2006, summary judgment was entered in favor of Dr. Best
and University Associates. Because it was an interlocutory order, on May 26, 2006, the
trial court entered an order pursuant to Kentucky Rule of Civil Procedure (CR) 54.02
declaring that there was no just reason for delay and that the summary judgments were
final.
Jenkins filed her Notice of Appeal on June 21, 2006. Dr. Farmer filed his
Notice of Appeal on June 22, 2006, and Baptist Hospital filed a Notice of Appeal on June
23, 2006.
Dr. Best and University Associates filed motions with this Court to dismiss
the appeals of Dr. Farmer and Baptist Hospital arguing they have no standing to bring
them. We address those motions first.
-8-
MOTIONS TO DISMISS APPEALS
We believe the Appellees' motions are well taken and, for the following
reasons, we dismiss both Dr. Farmer's and Baptist Hospital's appeals.
Appellees' argument for dismissal is best summarized in one of three cases
cited by Dr. Best.
It is a universal rule that a joint tort-feasor . . . will not be
heard to complain on appeal . . . that the suit was dismissed as
to a co-defendant.
Martin v. Ackman, 270 Ky. 640, 110 S.W.2d 437, 438 (Ky. 1937)(numerous citations
omitted); see also National Concrete Const. Co. v. Duvall, 150 Ky. 192, 150 S.W. 46, 49
(Ky. 1912)(“Being charged as [one of multiple] joint tort-feasors, the [appellant] has no
cause for complaint that the court directed a verdict in favor of the [co-defendant
below].”). This straight forward rule, claims the appellees, justifies dismissal of these
appeals.
Dr. Farmer and Baptist Hospital apparently agree that this rule would
compel dismissal of their appeals, but only if we applied case law predating our Supreme
Court's adoption of comparative negligence in Hilen v. Hays, 673 S.W.2d 713, 719 (Ky.
1984). They argue that Hilen rendered the rule described in Martin obsolete. This is the
first time since Hilen that we have been asked to address the rule's continued viability.
Our analysis begins by asking generally: Who is entitled to appeal a
judgment? Appellants correctly answer that all parties who are aggrieved by a trial
court's order are entitled to appeal it. Civil Service Commission v. Tankersley, 330
-9-
S.W.2d 392, 393 (Ky. 1959)(“In order for a party to maintain an appeal from a judgment
it is essential that he shall be aggrieved or prejudiced by the judgment[.]”). They cite
Brashear v. Brashear, 284 Ky. 623, 145 S.W.2d 542 (1940) for the proposition that “to
present a reviewable question by this court it should appear that [appellants were]
wrongfully deprived of some right by the judgment appealed from[.]” Brashear at 542.
These elemental concepts also predate Hilen v. Hays. We have no doubt they survived
that case intact.
We also know from the “universal rule” itself that, prior to Hilen, a
defendant in a tort action who remained liable to the plaintiff had no right to appeal the
dismissal of a co-defendant. Martin at 438. This is tantamount to holding that the
defendant had no right to appeal his co-defendant's dismissal just to keep him in the
damages pool.
This brings us to the next and most important question: Did Hilen create
the right of a defendant in a tort action to appeal the dismissal of his co-defendant where
such right did not previously exist? Appellants claim Hilen did create such a right. They
identify it as “the right of the appellants for an apportionment of fault.”
While we agree that this right exists, it does not give a party the right to
apportion fault to persons whose liability has been judicially determined not to exist. In
this case, Dr. Farmer's and Baptist Hospital's right to apportion liability to Dr. Best and
University Associates was extinguished when summary judgment was granted in their
favor.
- 10 -
Our review of the case law shows that the ability generally to apportion
damages among joint tort-feasors has nearly ancient origins. And the parameters of the
right to apportionment among joint tort-feasors has not substantially changed over time.
It is true that Hilen authorized the apportionment of fault between a
plaintiff and a defendant. Stratton v. Parker, 793 S.W.2d 817, 819 (Ky. 1990).
However, the apportionment of fault among joint tort-feasors can be traced back well
into the nineteenth century. Stratton at 818, citing Alexander v. Humber, 9 Ky.L.Rptr.
734, 6 S.W. 453, 453 (Ky. 1888)(Recognizing that the offense of one tort-feasor “is often
more wanton and aggravating than that of another.”). Fourteen years before Hilen, the
Supreme Court articulated “a precise recognition of the authority of a jury to apportion
the liability among joint tort-feasors, even in cases where one of the tort-feasors had
settled the claim against him and had been dismissed as a party to the action.” Stratton at
818-19, citing Orr v. Coleman, Ky., 455 S.W.2d 59 (1970). Therefore, we conclude that
Hilen created no new right to apportionment of fault among joint tort-feasors.
If we doubted our conclusion -- on the theory that Hilen elevated the
apportionment of fault between joint tort-feasors from a jury's option to a full-fledged
right of a tort defendant -- we would have been rescued by the legislature's enactment of
KRS 411.182. That statute allows allocation of fault among “each claimant, defendant,
third-party defendant, and person who has been released from liability” pursuant to “[a]
release, covenant not to sue, or similar agreement entered into by a claimant and a person
liable[.]” KRS 411.182(1), (4). Excluded from this list are two categories of persons: (1)
- 11 -
those who were never named as defendants or third-party defendants, and (2) those who
were once defendants or third-party defendants but were dismissed from the action
because they were found not to be liable. Dr. Best and University Associates fall in this
second category. Therefore, even if it could be argued that Hilen created this new right,
KRS 411.182 took it away.
The Supreme Court has already confirmed this interpretation. In Jefferson
County Com. Attorney's Office v. Kaplan, 65 S.W.3d 916 (Ky. 2001), a former criminal
defendant brought a legal malpractice action against his trial counsel, who then joined
two prosecutors and a Kentucky State Police chemist as third-party defendants. The
third-party defendants' motions to dismiss were granted because they were immune from
suit. The defendant attorney argued that, under KRS 411.182, the third-party defendants
should still be included in the apportionment. The Court of Appeals agreed because “to
do otherwise would penalize [the attorney] for their immunity.” Id. at 922.
But the Supreme Court reversed, stating that the “Court of Appeals
approached this problem from the wrong direction [and its] conclusion is contrary to the
plain language of the statute.” Id. The Supreme Court noted that while the prosecutors
and the chemist were once third-party defendants, they “are not third-party defendants as
listed in KRS 411.182(1). Nor are they settling tort-feasors under section (4).”5 Id.
5
The narrowness of this interpretation of KRS 411.182 was criticized by Justice Keller (joined
by Justices Graves and Stumbo) who stated, “I believe that, if the evidence at trial justifies an
inference of liability on the part of [the dismissed third-party defendants], the trial court's jury
instructions should require apportionment of fault against them. The majority's contrary holding
narrowly interpreting the language of KRS 411.182 'violates the main purpose of comparative
fault by improperly subjecting the defendants to liability in excess of their proportion of fault.'”
- 12 -
This is sound logic since a party who remains in an action has yet to be
found faultless, and the party who settles has determined his degree of fault by
agreement. The degree of fault of the party who is dismissed from the action on liability
grounds has also been determined, but as a matter of law; his apportionment of liability
under the statute is 0%.
The claim that Dr. Best and University Associates are directly liable to
Jenkins is her claim to assert. When that claim was denied, it was her right to appeal the
decision. However, Dr. Farmer and Baptist Hospital are no more entitled to appeal the
trial court's denial of Jenkins' claim than they would have been to file it in circuit court in
the first place.
Because we find that Dr. Farmer and Baptist Hospital have no standing or
right to appeal the trial court's denial of Jenkins' claims against Dr. Best and University
Associates, their appeals shall be dismissed.
STANDARD OF REVIEW
The standard of review on appeal when a trial court grants a motion for
summary judgment is “whether the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was entitled to judgment as a
matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996); CR 56.03. “The
trial court must view the evidence in the light most favorable to the nonmoving party, and
summary judgment should be granted only if it appears impossible that the nonmoving
Jefferson County Com. Attorney's Office v. Kaplan, 65 S.W.3d 916, 928 (Ky. 2001)(Keller, J.,
dissenting).
- 13 -
party will be able to produce evidence at trial warranting a judgment in his favor.” Lewis
v. B & R Corp., 56 S.W.3d 432, 436 (Ky.App. 2001), citing Steelvest v. Scansteel Serv.
Ctr., Inc., 807 S.W.2d 476, 480-82 (Ky. 1991). “Impossible,” as set forth in the standard
for summary judgment, is meant to be “used in a practical sense, not in an absolute
sense.” Lewis at 436.
The trial court “must examine the evidence, not to decide any issue of fact,
but to discover if a real issue exists.” Steelvest at 480. “The moving party bears the
initial burden of showing that no genuine issue of material fact exists, and then the
burden shifts to the party opposing summary judgment to present ‘at least some
affirmative evidence showing that there is a genuine issue of material fact for trial.’”
Lewis at 436, citing Steelvest at 482. Because summary judgment involves only legal
questions and the existence of any disputed material issues of fact, an appellate court
need not defer to the trial court's decision and will review the issue de novo. Scifres at
781.
NON-EXISTENCE OF THE PHYSICIAN-PATIENT RELATIONSHIP
A medical negligence case, like any negligence case, requires proof that:
(1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the
standard by which his or her duty is measured; and (3) consequent injury. “Duty, the first
element, presents a question of law.” Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89
(Ky. 2003). “If no duty is owed by the defendant to the plaintiff, there can be no breach
- 14 -
thereof, and therefore no actionable negligence.” Ashcraft v. Peoples Liberty Bank &
Trust Co., Inc., 724 S.W.2d 228, 229 (Ky.App. 1986).
Because we are reviewing a summary judgment, we must identify from the
record the material facts about which there are no genuine issues. If such facts are
sufficient upon which to base a legal conclusion as to whether a duty exists, we must
state that conclusion.
There is no genuine issue regarding the following facts. While Jenkins was
in Baptist Hospital, Dr. Best was at another location and therefore never available to offer
medical assistance. Dr. Best never saw or examined Jenkins, never spoke to her or
consulted or gave her advice. Dr. Best never reviewed Jenkins' chart or made any entry
in it. Dr. Best never consulted with Dr. Farmer while Jenkins was under his care. Dr.
Best never issued either medical or nonmedical orders. Nor did she render any opinions
or recommendations. She did not participate in Jenkins' diagnosis or treatment. The
extent of her involvement was to inform Baptist Hospital nurses that she was unavailable
to perform an ultrasound until the morning of March 29, 2003. In summary, Dr. Best did
nothing that constitutes an undertaking to render medical care to Jenkins.
The physician's duty to a patient arises when, by his words or deeds, “he
agrees to treat a patient, thus establishing a physician/patient relationship.” Noble v.
Sartori, 799 S.W.2d 8, 9 (Ky. 1990). In the case before us, Dr. Best said nothing and did
nothing that would establish the traditional physician-patient relationship or any other.
Consequently, Dr. Best owed no duty to Jenkins.
- 15 -
Jenkins argues, however, that “in medical malpractice cases . . . the duty
element is not defined by the relationship of the parties.” In support of this position,
Jenkins relies primarily on two cases. The first is Grayson Fraternal Order of Eagles v.
Claywell, 736 S.W.2d 328 (Ky. 1987), which expresses the “universal duty of care” by
which every person owes a duty to every other person to exercise ordinary care to prevent
foreseeable injury. Id. at 332. The second is Noble, supra, which seems at first blush to
impose a duty upon a physician even in the absence of a traditional physician-patient
relationship. Neither case compels our reversal of the summary judgments.
GRAYSON AND THE “UNIVERSAL DUTY OF CARE”
“Grayson is cited often by parties advocating a theory of liability or a cause
of action where none previously existed and legal authority is otherwise lacking.” James
v. Wilson, 95 S.W.3d 875, 891 (Ky.App. 2002). In other words, parties turn to Grayson's
sweeping statement of “universal duty” where the facts of their case do not support a duty
based on recognized legal relationships.
We are convinced that our courts never intended their recent references to
“universal duty” as establishing a principle whereby a plaintiff could satisfy the first
element of a cause of action for negligence – duty – by mere citation to Grayson. See
Estate of Vosnick v. RRJC, Inc., 225 F.Supp.2d 737, 740 (E.D.Ky. 2002)(“[T]his much is
clear: Grayson is most emphatically not a jurisprudential panacea for litigants faced with
an uphill challenge in establishing the existence of a legal duty of care.” Emphasis in
original.).
- 16 -
That is not to say that we dispute the existence of the concept. As recently
as Louisville Gas and Elec. Co. v. Roberson, 212 S.W.3d 107 (2006), the Supreme Court
cited Grayson as having recognized its existence. We note, however, that Grayson's
articulation of the concept has been substantially abridged by subsequent decisions. See,
e.g., DeStock No. 14, Inc. v. Logsdon, Ky., 993 S.W.2d 952 (1999)(overruled as
superseded by statute); James at 891 (“Subsequent decisions illustrate that the duty has
been narrowly applied, thereby undermining appellants' reliance on Grayson.”); see also
Johnson v. S.O.S. Transport, Inc., 926 F.2d 516, 520 (6th Cir. 1991)(“[T]he continued
viability of the universal duty concept under Kentucky law is questionable.”).
Significantly, our Supreme Court also recently said “the 'universal duty of care' is not
boundless.” T & M Jewelry, Inc. v. Hicks ex rel. Hicks, 189 S.W.3d 526, 531 (Ky. 2006).
What then are we to make of the irony of a “universal duty” that is anything
but universal? It does seem counterintuitive that we define this duty more by its
limitations than by its comprehensive applications. The fact is that we can only
understand this irony by examining the “universal duty” in the context of its origins.
We begin by noting that “[t]he treatment of the concept of negligence as
expressing a universal duty is a hundred years old.” Tabler v. Wallace, 704 S.W.2d 179,
186 (Ky. 1985).
The evolution of a separate tort theory of negligence,
recognizing liability based on the universal duty of reasonable
care owed by all to all, separate from contractual duty, took
place in the common law during the latter part of the 19th
century.
- 17 -
Williams v. Fulmer, 695 S.W.2d 411, 414 (Ky. 1985)(emphasis supplied). We also note
that in those earlier days the right to recover for personal injuries occasioned by the
negligence of another was very narrowly drawn.
In 1893, Kentucky's highest court said “if one of two persons fighting
unintentionally strikes a third, or if one uncocks his gun . . . and it accidentally goes off,
and hurts a looker-on, or if he drives a horse too spirited, or pulls the wrong rein, or uses
a defective harness, and the horse, taking fright, injures another . . . for these various
instances of negligence the person injured has his remedy by action of trespass.” Perkins
v. Stein, 15 Ky.L.Rptr. 203, 22 S.W. 649, 650-51 (1893)(emphasis supplied; citations and
internal quotation marks omitted).
A few years later, in 1899, the same court acknowledged the limited nature
of actions to remedy personal injury.
If a druggist should sell a man poison for a harmless
medicine, the suit for damages therefor would not be an
action for injury to the person, although great suffering or
loss of health had resulted from it.
Menefee v. Alexander, 21 Ky.L.Rptr. 980, 53 S.W. 653, 654 (1899)(emphasis supplied).
Even as late as 1922, actions for violation of “any legal duty” would lie
only if “the facts . . . constituted a wrong in law, cognizable as trespass, trespass on the
case, or breach of contract[.]” Smith v. Gowdy, 196 Ky. 281, 244 S.W. 678, 679
(1922)(emphasis supplied). We take note of the absence of a distinct cause of action for
negligence. This was consistent across the country and largely constant for the previous
centuries.
- 18 -
Negligence as a basis of civil liability was unknown to
mediaeval law. For damage to the person, the sole remedy
was trespass, and trespass did not lie in the absence of
aggression, and that direct and personal.
Palsgraf v. Long Island R. Co., 248 N.Y. 339, 345, 162 N.E. 99, 101 (N.Y.
1928)(emphasis supplied)6; see also Colonial Pipeline Co. v. Brown, 365 S.E.2d 827,
831-32 (Ga. 1988), quoting W.L. Prosser and W.P. Keeton, Prosser & Keeton,
Handbook on the Law of Torts, pp. 2, 8-11 (5th ed., 1984)(setting forth a short history of
the development of the law of torts.). Even Grayson itself recognized that tort liability
was originally based in “the old English writ system, which only selectively recognized a
duty and provided a remedy at the King's pleasure.” Grayson, supra, at 330.
Intentionally or not, when the Supreme Court said that “[t]he requirement
of 'duty to all' is a beginning point for any duty analysis[,]” Grand Aerie Fraternal Order
of Eagles v. Carneyhan, 169 S.W.3d 840, 849 (Ky. 2005), quoting Fryman v. Harrison,
896 S.W.2d 908, 909 (Ky. 1995), it was referencing a historical genesis, and not merely
an analytical starting point. The purpose in referring to a “universal duty,” both in the
early opinions and in recent ones, was never to define the duty element of actionable
6
In fact, in the historic and seminal negligence case of Palsgraf itself, the literal concept “of a
'universal duty of care' was rejected . . . and the 'relational negligence' theory was adopted
instead.” Middleton v. Village of Nichols, 114 Misc.2d 596, 599, 452 N.Y.S.2d 157, 160
(N.Y.Sup. 1982). Said Justice Cardozo, “Negligence, like risk, is thus a term of relation. . . .
[N]egligence, not at large or in the abstract, but in relation to the plaintiff, would entail liability
for any and all consequences, however novel or extraordinary.” Palsgraf, 162 N.E. at 101
(emphasis supplied). The literal “universal duty” theory is explained in the Palsgraf dissent of
Justice Andrews as “a duty imposed on each one of us to protect society from unnecessary
danger, not to protect A, B, or C alone.” Id. at 102 (Andrews, J., dissenting). For those
interested in the underlying philosophies of the competing theories represented in the majority
and dissenting opinions of Palsgraf, see G.E. White, Tort Law in America, An Intellectual
History 14-18, 97-101 (1980), portions of which were cited in Grayson at 330.
- 19 -
negligence. The phrase simply distinguished modern negligence theory from the much
narrower archaic legal bases upon which personal injuries formerly were remedied -contract and trespass. By contrast with the scope of duty recognized in those former
causes of action, the duty imposed by negligence theory was virtually “universal.”
It is easy to understand why Grayson has seduced appellants into relying on
the concept of a “universal duty.” But despite its value as a “catch phrase,” James,
supra, at 891, the “universal duty of care,” has no meaning in Kentucky jurisprudence
beyond the most general expression of negligence theory, and certainly none absent a
relational context as evidenced by the circumstances of each case. Kirschner by
Kirschner v. Louisville Gas & Elec. Co., 743 S.W.2d 840, 848 (Ky. 1988)(“The duty to
exercise reasonable care commensurate with the circumstances not to injure other human
beings is the universal duty owed by everyone to everyone.”); Sheehan v. United Services
Auto. Ass'n, 913 S.W.2d 4, 6 (Ky.App. 1996)(“[T]his is a point frequently overlooked by
some, the duty to exercise ordinary care is commensurate with the circumstances.”). Our
courts have been known to articulate that relational context as “duty,” and “its
'functionally equivalent' alternative characterizations[,]” “foreseeability” and “proximate
cause.” Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S.
687, 713, 115 S.Ct. 2407, 2420 (U.S. 1995)(“We have recently said that proximate
causation 'normally eliminates the bizarre,' and have noted its 'functionally equivalent'
alternative characterizations in terms of foreseeability and duty[.]” Citation omitted.).
But no matter how it has been labeled, our courts have never found liability in tort unless
- 20 -
we have first found circumstances giving rise to a relationship of some kind in which one
particular party owed a duty to another particular party.
Because the “universal duty” espoused by Jenkins is simply an expression
of the general theory of negligence law, neither it nor the cases that reference it constitute
a basis upon which this Court could justify reversing the summary judgments in favor of
Dr. Best and University Associates.
NOBLE AND THE PHYSICIAN'S DUTY TO TREAT
Jenkins cites Noble v. Sartori, 799 S.W.2d 8 (Ky. 1990), for the proposition
that the law imposes an implied duty requiring physicians to treat patients even in the
absence of a physician-patient relationship or any other relationship. We believe Jenkins
misreads Noble.
Amel Noble, it turns out, was experiencing a heart attack. He and his
brothers made their way to the local hospital emergency room. One brother approached
Dr. Sartori, “who was dressed 'like a doctor,' i.e., in a white coat and bearing a
stethoscope[, and asked him] more than once to 'help my brother, he's having a heart
attack.'” Dr. Sartori admitted that Noble's brother could have been correct in his
estimation of his brother's condition, but, because he was not on emergency room duty at
the time, he merely instructed them twice to “sign in” or “get in line” for treatment. Id. at
8-9.
Dr. Sartori defended the medical negligence lawsuit filed by Noble's estate
against him by claiming he owed Noble no duty in the absence of a physician-patient
- 21 -
relationship. The doctor prevailed in the circuit court and at the Court of Appeals. But
the Supreme Court granted discretionary review and reversed, holding “the law implies a
duty wherever circumstances put parties in a relationship to each other where when one
acts negligently it causes injury to the other.” Id. at 9-10 (emphasis supplied). The court
addressed the relationship this way:
The premise underlying Dr. Sartori's position that he had no
duty in this case, is that a physician's duty to act with
reasonable care only arises after he agrees to treat a patient,
thus establishing a physician/patient relationship. While this
is true as an abstract proposition, the question is whether that
abstract proposition applies in the specific circumstances of
this case.
Noble at 9 (emphasis supplied). The Noble court therefore never said that there was no
physician-patient relationship between Sartori and Noble. Acknowledging that “the
abstract resolution of whether there is a duty is invariably result oriented[,]” the Supreme
Court said, “Certainly, a physician who is consulted in an emergency has a duty to
respect that interest, at least to the extent of making a good-faith attempt to provide
adequate treatment or advice.” Id. at 9, quoting Rockhill v. Pollard, 485 P.2d 28, 32 (Or.
1971).
In short, we do not read Noble as doing away with the necessity of a legally
cognizable relationship between the patient and the physician as a prerequisite to the
finding that a duty existed. See Andrew v. Begley, 203 S.W.3d 165, 170 (Ky.App.
2006)(“[T]he duties owed to [plaintiff] by these medical professionals stem from the
relationship of a physician and patient.”). Noble simply broadened, for that case and
- 22 -
those factually indistinguishable from it, the circumstances under which that relationship
can be created. We do not believe the Supreme Court intended Noble to be extended
beyond its facts, and certainly not as far as would be necessary to establish a duty in the
case before us.
Factually, Noble is clearly distinguishable from the case sub judice. In
Noble, the physician was present in the emergency room when the patient arrived. In
other words, unlike Dr. Best, he was “available at the hospital on the morning in
question[.]” Id. at 9. Furthermore, unlike Dr. Best, the physician in Noble did undertake
to give direction, albeit indirectly, to the patient. Id. Quoting from Judge Wilhoit's
dissent in the Court of Appeals opinion Noble reversed, the Supreme Court said, “Here
we have a physician in a hospital, obviously functioning as a physician on the staff does,
who takes it upon himself on three occasions to direct the decedent's brother what to do.”
Id. (emphasis supplied).
In conclusion, Noble does not support the finding of a duty owed by Dr.
Best to Jenkins.
JENKINS' ADDITIONAL AUTHORITY
Jenkins also refers us to numerous cases from other jurisdictions
encouraging us to dispense with the concept that the physician-patient relationship is
necessary to the creation of a physician's duty of care. None of these cases is persuasive.
Most of these cases are easily distinguished because, unlike Dr. Best, the
physician in each of them actually undertook the treatment of the patient. Troxel v. A.I.
- 23 -
Dupont Institute, 450 Pa.Super. 71, 675 A.2d 314, 322 (Pa.Super. 1996); DiMarco v.
Lynch Homes-Chester County, Inc., 384 Pa.Super. 463, 559 A.2d 530 (Pa.Super. 1989);
Diggs v. Arizona Cardiologists, Ltd., 198 Ariz. 198, 8 P.3d 386, 387 (Ariz.App. 2000);
Miller v. Rivard, 180 A.D.2d 331, 585 N.Y.S.2d 523 (N.Y.A.D. 1992); Hand v. Tavera,
864 S.W.2d 678, 679 (Tex.App.-San Antonio 1993).
In Millard v. Corrado, 14 S.W.3d 42 (Mo.App. 1999), the Missouri court
held that a state regulation regarding the conduct of hospital emergency room physicians
evidenced a public policy that justified expansion of the physician's duty on public policy
grounds. Millard at 47. Kentucky's legislature, upon whose primary authority such a
policy must be based, has not yet deemed a similar regulation appropriate for our
Commonwealth. Consequently, no such public policy is at play here.
Hiser v. Randolph, 126 Ariz. 608, 617 P.2d 774 (Ariz.App. 1980), held that
by assenting to hospital bylaws regarding emergency room duties, the defendantphysician waived lack of a physician-patient relationship as a defense. Hiser at 777-78,
disapproved, Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597, 688 P.2d 605
(Ariz. 1984). Here, there is no waiver issue.
Of the cases Jenkins cites, the closest by analogy is Fought v. Solce, 821
S.W.2d 218 (Tex.App.-Hous. [1 Dist.] 1991). But Fought is a much better case for Dr.
Best than for Jenkins. In Fought, the trial court granted summary judgment in favor of
the physician because no physician-patient relationship was created between the plaintiff,
who had been an emergency room patient, and the physician who had been “on call,” and
- 24 -
who was called, but who declined to see the patient. Id. at 220 (“[A] physician is not to
be held liable for arbitrarily refusing to respond to a call of a person even urgently in
need of medical or surgical assistance provided that the relation of physician and patient
does not exist at the time the call is made or at the time the person presents himself for
treatment.” Citation omitted and internal quotation marks; emphasis in original).
Nothing in these additional cases persuades us that, in the absence of a
physician-patient relationship, Dr. Best owed a duty to Jenkins.
RESTATEMENT (SECOND) OF TORTS, § 324A
In Ostendorf v. Clark Equipment Co., 122 S.W.3d 530 (Ky. 2003), the
Kentucky Supreme Court adopted Restatement (Second) of Torts § 324A, as a basis for
imposing a duty. This section of the Restatement says:
One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as
necessary for the protection of a third person or his things, is
subject to liability to the third person for physical harm
resulting from his failure to exercise reasonable care to
protect his undertaking, if
(a) his failure to exercise reasonable care increases the
risk of such harm, or
(b) he has undertaken to perform a duty owed by the
other to the third person, or
(c) the harm is suffered because of reliance of the other
or the third person upon the undertaking.
This legal concept has been labeled ominously as the “undertaker's doctrine.” Louisville
Gas and Elec. Co. v. Roberson, 212 S.W.3d 107, 109 (Ky. 2006). As the name implies,
- 25 -
there must be an “undertaking.” This is the first time the doctrine has been considered in
Kentucky in the context of a medical negligence claim.
Whether a party to be charged engaged in an “undertaking” depends on the
facts. Again, if those facts are not in dispute, and they are sufficient for this Court to
make a legal determination of this issue, we shall do so. We examine the facts affecting
Dr. Best's duty and University Associates' duty separately.
Dr. Best's Undertaking
In order to find that Dr. Best owed an independent duty to Jenkins under the
“undertaker's doctrine,” we must find that she personally engaged in some affirmative act
amounting to a “render[ing of] services to another[,]” which in this case would be Jenkins
or Dr. Farmer or Baptist Hospital. We have already found no genuine issue on this point;
Dr. Best engaged in no such activity. This section of the Restatement, therefore, will not
impose a duty on Dr. Best in favor of Jenkins because she engaged in no undertaking.
University Associates
The complaint states that University Associates “undertook to provide
appropriate medical care and treatment to Marilyn Jenkins.” That undertaking was
memorialized in the contract with Baptist Hospital. It is undisputed that University
Associates had performed these very services for Baptist Hospital and its patients in the
past. On the night in question, University Associates did not provide the services Baptist
Hospital contracted for, relied upon, and previously received. The case of Louisville Gas
- 26 -
and Elec. Co. v. Roberson, 212 S.W.3d 107, 111 (Ky. 2006) presents an analogous
situation.
In Louisville Gas, Louisville Gas and Electric Company (“LG&E”) entered
into a contract with the Jefferson County Fiscal Court to maintain street lamps. One
evening after dark, a ten-year-old pedestrian was struck by an automobile at an
intersection with an inoperable street lamp. The pedestrian claimed the poorly lighted
intersection contributed to the accident and brought a negligence action against LG&E.
Louisville Gas at 108. The trial court entered summary judgment in favor of LG&E
finding “no duty recognized under common law[.]” Id. at 109.
The Supreme Court reversed, finding the contract was the source of a duty
in favor of the pedestrian which gave rise to liability under Section 324A of the
Restatement. Louisville Gas at 111 (“It is quite elementary that a duty to exercise the
proper degree of care may have its origin, as here, in a contract.”).
The Court was initially concerned with the distinction between misfeasance
and nonfeasance, stating, “the defendant is of course subject to liability if he assumes a
duty by making a safety promise, and then negligently performs it, causing injury. That
is a simple case of misfeasance and neither privity nor nonfeasance rules apply.” Id. In
Louisville Gas, it was not misfeasance that was claimed, but nonfeasance. Nevertheless,
the Supreme Court found that nonfeasance could be the basis of liability under Section
324A.
The cases are not always clear whether liability depends upon
active negligence or whether nonfeasance would suffice, but
- 27 -
liability is imposed and the very fact that courts do not
actually notice the distinction is itself evidence that they are
entirely willing to impose liability for negligent
nonperformance of a safety promise.
Id. (emphasis supplied), citing Dan B. Dobbs, The Law of Torts § 321 (2001)(internal
citations omitted). The Supreme Court found this consistent with Kentucky law. Id.,
citing Louisville Cooperage Co. v. Lawrence, 313 Ky. 75, 230 S.W.2d 103, 105 (1950);
see also H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 166, 159 N.E. 896, 898
(1928)(“The hand once set to a task may not always be withdrawn with impunity though
liability would fail if it had never been applied at all.”); see also, Randolph's Adm'r v.
Snyder, 139 Ky. 159, 129 S.W. 562, 563 (1910)(“If the defendant . . . simply broke the
contract by refusing to come when sent for or to undertake the case, the right of action
would be simply for the breach of the contract, and there would be no right of action in
tort.”).
The determination of “duty presents questions of law and policy.”
Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003). The primary focus of the
determination is foreseeability. Id., citing David J. Leibson, Kentucky Practice, Tort Law
§ 10.3 (West Group 1995). We are convinced that the predicament of understaffing,
resulting in Dr. Best's inability to perform services for Jenkins, was entirely foreseeable
by University Associates. To paraphrase Section 324A, “One who undertakes . . . to
render services to another [must] exercise reasonable care to protect his undertaking[.]”
We here point out the distinctions that find a duty owed by University
Associates where none is found for Dr. Best. There are two.
- 28 -
First, University Associates made a promise to Baptist Hospital to provide
perinatal services. This alone can be the basis of a duty under Section 324A. Louisville
Gas, supra, at 111. The Commentary to the Restatement describes it this way.
[T]here is no essential reason why the breach of a promise,
relied upon by the promisee or by a third person, with
resulting physical harm to the latter, should not result in
liability in tort. [T]he question is left open in the absence of
sufficient decisions.
Restatement (Second) of Torts § 324A Comment f. (1965). We believe this is a fair
interpretation of the Supreme Court's rationale in Louisville Gas and, in view of that case,
we believe the question is no longer left open in Kentucky.
Second, in addition to making the promise, University Associates actually
undertook the performance of perinatal services for Baptist Hospital. Its previous
successful performance of those services pursuant to the contract gave rise to Baptist
Hospital's reliance upon University Associates' undertaking. Under Section 324A(c) of
the Restatement, this is an independent basis upon which to establish a duty. While Dr.
Best may have acted as University Associates' functionary for a portion of the time, there
is nothing in the record that indicates Baptist Hospital placed its reliance on Dr. Best
personally, but it did place such reliance on her employer, University Associates, with
which it had a contract.
The summary judgment in favor of University Associates shall be reversed.
Whether University Associates was negligent and whether its negligence, if any, was a
- 29 -
substantial factor in causing the injuries complained of will be for the trier of fact to
determine on remand.
THIRD-PARTY BENEFICIARY
Jenkins also presents an argument based in contract, i.e., that she is a thirdparty beneficiary of the contract between University Associates and Baptist Hospital.
The first hurdle that Jenkins faces is that her complaint does not allege a third-party
beneficiary claim. Traylor Bros., Inc. v. Pound, 338 S.W.2d 687, 688 (Ky.
1960)(“[P]laintiff was not entitled to recover because there was no pleading of [a
contract] having been made for plaintiff's benefit, or at all. Pleading was prerequisite to
proving it.” Emphasis supplied.). Additionally, in her prehearing statement, filed in
accordance with CR 76.03, Jenkins identified the issue on appeal as follows:
Did Appelles [sic] owe a duty to Marilyn Jenkins and her
unborn child as a result of the physician/patient relationship?
CR 76.03(8) states:
A party shall be limited on appeal to issues in the prehearing
statement except that when good cause is shown the appellate
court may permit additional issues to be submitted upon
timely motion.
No motion has been filed to expand the issues beyond that stated in her prehearing
statement. However, in view of Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 197
(Ky. 1994)(CR 76.03 is a rule of “substantial compliance with appropriate sanctions
primarily dependent upon whether and what prejudice resulted to the opposing party[.]”),
and because we perceive no prejudice to appellees, we will consider the issue.
- 30 -
In view of Daniel Boone Clinic, PSC v. Dahhan, M.D., 734 S.W.2d 488
(Ky.App. 1987), we believe Jenkins' argument that she was a third-party beneficiary
under the contract must fail. This Court in Dahhan, reviewed a contract between a
physician and a hospital and said that
[t]his is an employment contract involving professional
services. Although the patients are the ones served, they are
only incidental beneficiaries of this contract. Long v. Reiss,
290 Ky. 198, 160 S.W.2d 668 (1942); King v. National
Industries, Inc., 512 F.2d 29 (6th Cir.1975).
Dahhan at 491.
As described in our summary of facts, supra, the contract in question was
primarily for Baptist Hospital's benefit. The contract was designed to allow Baptist
Hospital to represent itself, and be accredited, as a hospital capable of providing perinatal
services to its patients. It was neither directly nor primarily for the benefit of the patients
themselves. Krahwinkel v. Commonwealth Aluminum Corp., 183 S.W.3d 154, 162 (Ky.
2005)(“Under Kentucky law, before a third person who is not a party to a contract can
derive benefit from that contract, the third person must show that the contract was made
and entered into directly or primarily for the benefit of the third person.”).
Jenkins asks us to reverse Dahhan as misinterpreting the cases upon which
it is based. We decline to do so. Dahhan has stood for this specific principle for two
decades. Furthermore, this principle has been applied with the same effect, and in the
context of the case now before us, by our sister states. See, e.g., Anderson v. Houser, 240
- 31 -
Ga.App. 613, 620-21, 523 S.E.2d 342, 348 (Ga.App. 1999); Oja v. Kin, 229 Mich.App.
184, 192-92, 581 N.W.2d 739, 743-44 (Mich.App. 1998).
We hold that Jenkins is not entitled to bring a claim as a third-party
beneficiary of the contract between University Associates and Baptist Hospital.
CONCLUSION
For the foregoing reasons, we DISMISS the appeals filed by Baptist
Hospital and Dr. Farmer (2006-CA-001286 and 2006-CA-001295, respectively). The
summary judgment in favor of Dr. Best is AFFIRMED and the summary judgment in
favor of University Associates is REVERSED and REMANDED to the Jefferson Circuit
Court for proceedings consistent with this Opinion.
ALL CONCUR.
ENTERED: _____________________
____________________________
JUDGE, COURT OF APPEALS
ORAL ARGUMENT FOR APPELLANT, ORAL ARGUMENT AND BRIEFS FOR
MARILYN JENKINS, AS MOTHER AND APPELLEE, UNIVERSITY
NEXT FRIEND OF JUSTIN BRANUM: OBSTERTRICAL AND
GYNECOLOGICAL ASSOCIATES, PSC:
David B. Gray
Goldberg & Simpson, P.S.C.
Daniel G. Brown
Louisville, Kentucky
Darby & Gazak, P.S.C.
Louisville, Kentucky
- 32 -
BRIEF FOR APPELLANT, MARILYN
JENKINS, AS MOTHER AND NEXT
FRIEND OF JUSTIN BRANUM:
ORAL ARGUMENT FOR APPELLEE,
GAIL BEST, M.D.
Bradley R. Hume
Thompson, Miller & Simpson, P.L.C.
Louisville, Kentucky
David B. Gray
Kevin P. Weis
Goldberg & Simpson, P.S.C.
Louisville, Kentucky
ORAL ARGUMENT FOR APPELLANT, BRIEF FOR APPELLEE, GAIL BEST,
JOHN FARMER, M.D.
M.D.
Gerald R. Toner
O'Bryan, Brown & Toner
Louisville, Kentucky
Bradley R. Hume
Beth H. McMasters
Thompson, Miller & Simpson, P.L.C.
Louisville, Kentucky
BRIEFS FOR APPELLANT, JOHN
FARMER, M.D.
Gerald R. Toner
Gregory S. McDonald
Katherine Kerns Vesely
O'Bryan, Brown & Toner
Louisville, Kentucky
ORAL ARGUMENT FOR APPELLANT,
BAPTIST HOSPITAL EAST:
Susan Phillips
Phillips, Parker, Orberson, & Moore, P.L.C.
Louisville, Kentucky
BRIEFS FOR APPELLANT, BAPTIST
HOSPITAL EAST:
Susan Phillips
William P. Swain
Tera M. Rehmel
Phillips, Parker, Orberson, & Moore, P.L.C.
Louisville, Kentucky
- 33 -
- 34 -
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.