ALFRED J. WELSH, AS GUARDIAN FOR KEVIN SINGER, A MINOR AND CABINET FOR HEALTH SERVICES, COMMONWEALTH OF KENTUCKY v. GALEN OF VIRGINIA, INC. D/B/A UNIVERSITY OF LOUISVILLE HOSPITAL UNIVERSITY GYNECOLOGICAL C.S.B. TUCKER, M.D.; MAUREENA TURNQUEST, M.D.; DAVID R. POTTS, M.D.; RESAD PASIC, M.D.; AND STANLEY GALL, M.D.
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RENDERED:
MODIFIED:
May 11, 2001; 10:00 a.m.
TO BE PUBLISHED
August 17, 2001; 10:00 a.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000865-MR
ALFRED J. WELSH, AS
GUARDIAN FOR
KEVIN SINGER, A MINOR AND
CABINET FOR HEALTH SERVICES,
COMMONWEALTH OF KENTUCKY
v.
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN SHAKE, JUDGE
ACTION NO. 95-CI-007183
GALEN OF VIRGINIA, INC.
D/B/A UNIVERSITY OF LOUISVILLE HOSPITAL
UNIVERSITY GYNECOLOGICAL
& OBSTETRICAL FOUNDATION, INC.;
C.S.B. TUCKER, M.D.;
MAUREENA TURNQUEST, M.D.;
DAVID R. POTTS, M.D.;
RESAD PASIC, M.D.; AND
STANLEY GALL, M.D.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI AND HUDDLESTON, JUDGES.
GUIDUGLI, JUDGE.
Alfred J. Welsh, Guardian for Kevin Singer, a
minor, and Cabinet for Health Services, Commonwealth of Kentucky
(collectively Welsh) appeal from a judgment of the Jefferson
Circuit Court entered March 5, 1999, granting a directed verdict
in favor of C.S.B. Tucker, M.D. (Dr. Tucker), and from a judgment
entered in favor of Galen of Virginia, Inc. d/b/a University of
Louisville Hospital (the Hospital), University Gynecological and
Obstetrical Foundation, Inc. (the Foundation), Maureena
Turnquest, M.D. (Dr. Turnquest), David R. Potts, M.D. (Dr.
Potts), Resad Pasic, M.D. (Dr. Pasic), and Stanley Gall, M.D.
(Dr. Gall) on March 15, 1999, following a jury trial.
We affirm
both judgments.
FACTS
The Foundation operates a nonprofit
gynecological/obstetrical clinic across the street from the
Hospital.
The clinic is the primary obstetric/gynecologic care
provider for indigent female patients in Louisville.
At all
times relevant hereto, Dr. Gall was the president of the clinic
and Dr. Potts was the clinic’s medical director.
Drs. Gall,
Potts, and Pasic served as attending physicians in the clinic on
a rotating basis.
Hospital.
Dr. Turnquest was a fellowship resident at the
Dr. Tucker was an intern completing a rotation in the
clinic.
Tambra Dunn (Dunn), Kevin’s mother, came under the
clinic’s care in March 1992 when she discovered she was pregnant.
During her first visit to the clinic Dunn received an appointment
card which stated in pertinent part:
If you are having a problem . . . you may
call the clinic at 588-7636. The phone will
be answered by our receptionist and if
necessary she will let you talk with a nurse
. . . . If you need to call after hours or
on Weekends [sic], call Humana Hospital
University (Labor and Delivery) at 562-3094.
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You should call the clinic or come to the
hospital if you experience any of the
following:
1) baby stops moving
2) vaginal bleeding (like a normal period)
3) regular contractions
4) water breaks (ruptured membranes)
Dunn testified at trial that she read and understood the
instructions printed on the appointment card.
Dunn’s pregnancy progressed normally until August 30,
1992.
On that date Dunn went to the Hospital with complaints of
leaking fluid.
Upon discharge after examination, Dunn was given
a set of discharge instructions which advised her to call the
Hospital if “you don’t feel the baby move four times an hour.”
Dunn testified that she read the discharge instructions and kept
them in her purse.
She also testified that she understood she
was to call the hospital if she noted a decrease in fetal
movement.
Dunn returned to the clinic for a regularly scheduled
appointment on September 30, 1992.
When she reported to the
clinic staff that she had experienced reduced fetal movement over
the past two days, a biophysical profile was performed.
results showed no problems with the fetus.
The test
Dunn was given a
fetal movement card (FMC) and told to count the baby’s movements
twice daily.
The FMC stated:
(1) If fetal movements are 4 or more per hour
return to the office as scheduled. Please
bring this card.
(2) If fetal movements are less than 4 per
hour, count for another hour. If movement
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remains less than 4 per hour immediately call
the office at 588-7636 or labor and delivery
after 4:30 p.m. and weekends at 562-3094.
Dunn returned completed FMCs to the clinic on her visit
of October 7 and October 21, 1992.
Dunn testified that she used
the FMCs as instructed and that the number of fetal movements she
recorded were within acceptable limits.
Although she was given
no more FMCs following the October 21 visit, she reported normal
fetal movements to clinic personnel on her visits of October 30,
November 6, and November 13, 1992.
Dunn noticed a cessation of fetal movement after 6:00
p.m. on November 19, 1992.
She did not call the clinic because
she had a regular appointment scheduled the next morning and
because family members told her that a fetus has less room to
move as it grows.
Dunn returned to the clinic for a regularly scheduled
appointment at 9:30 a.m. on November 20, 1992.
She testified
that although she told a person at the front desk that she was
feeling no fetal movement she waited for 30 minutes before she
was seen by Dr. Tucker.
Dunn told Dr. Tucker about the cessation of fetal
movement.
Dr. Tucker attempted to find a fetal heartbeat using a
hand-held Doppler device.
When she was unable to detect a
heartbeat, she tried again with a portable ultrasound which was
wheeled into the room.
When asked by Dr. Tucker why she failed
to call the hospital when she noticed a decrease in fetal
movement, Dunn said that family members told her that the baby
stopped moving because she was about to go into labor.
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Upon failing to locate a fetal heartbeat with the
portable ultrasound, Dr. Tucker transferred Dunn to the clinic’s
ultrasound laboratory.
Although Dr. Tucker suspected that Dunn’s
baby had died in utero, the larger ultrasound showed a fetal
heart rate of 60 beats per minute, which is low.
After
approximately two minutes the heart rate jumped to 120.
At this
point, Dunn was transported across the street to the Hospital
where an emergency cesarean section was performed by Dr. David
Miner (Dr. Miner).
Kevin was born at 11:58 a.m.
Kevin’s condition was
poor due to the fact that the umbilical cord was wrapped around
his neck, arm, and leg.
Kevin sustained serious brain damage as
well as other physical problems and now requires around-the-clock
care.
Dunn filed suit against the Hospital, Drs. Tucker and
Turnquest, and the Foundation on December 28, 1995, in her
capacity as Kevin’s guardian.1
In both her original and
subsequently amended complaints, Dunn alleged that the various
Appellees were negligent in their treatment of her and Kevin.
Welsh was substituted as plaintiff over the Appellees’ objections
by order of the trial court entered January 13, 1999.
On March 11, 1999, the trial court entered a directed
verdict in favor of Dr. Tucker, finding that “there is no
evidence in the record in this case which raises a jury issue on
the allegation of negligence on the part of Dr. Tucker.”
On
March 15, 1999, the trial court entered judgment in favor of the
1
The remaining Appellees were added at a later date.
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remaining Appellees following a jury trial which resulted in a
verdict in their favor.
I.
This appeal followed.
DID THE TRIAL COURT ERR IN REFUSING TO
ALLOW WELSH’S EXPERT WITNESSES, PATRICIA
FEDORKA AND DR. MAX LILLING, TO TESTIFY
THAT THE FACT THAT THE NURSE DIRECTOR OF
THE CLINIC WAS UNLICENSED HAD A NEGATIVE
IMPACT ON KEVIN’S OUTCOME?
In its November 1, 1996, responses to interrogatories
propounded by Welsh, the Foundation identified “Susan Stipe,
R.N.” as the “nurse manager” of the clinic on the day Kevin was
born.
The interrogatories were signed by Kathy Wade (Wade) on
behalf of the Foundation and by Michael Kirk (Kirk) in his
capacity as counsel for the Foundation.
In later responses to
interrogatories which were filed on April 28, 1997, the
Foundation identified “Susan Stipe” as one of the persons
responsible for teaching and training medical assistants.
responses were also signed by Wade and Kirk.
These
Counsel for Welsh
never questioned the discrepancy in the two responses prior to
trial.
Stipe testified by deposition and at trial.
In regard
to her educational and work background, Stipe testified as
follows at her deposition:
Q:
Tell us a little bit about your
background. You’re a registered nurse.
A:
Uh-huh.
Q:
Yes?
A:
Yes.
Q:
Okay, and where did you take your
training?
A:
St. Luke’s.
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Q:
Okay. And then where did you go
after you got your nursing degree?
A:
I got a degree from KU, University
of Kansas.
Q:
Okay. And so you got a B.S.
degree.
A:
No. Just a regular B – well, I
have a B.S., but it’s not in
nursing.
Q:
Okay. I got it.
go from there?
A:
I practiced – or I did nursing in
clinics.
Q:
Okay.
A:
And then I worked for an OB-GYN
group in Kansas City.
Q:
Okay.
A:
And then from there we moved to Des
Moines, Iowa, and I worked for an
ENT physician in Des Moines, Iowa,
for two years, and then we moved
here and I went to work for the
foundation.
Okay. And when did you go to work
for the foundation?
Q:
And where did you
A:
I – it was either June or July of
‘92.
Q:
And how long did you work with the
foundation?
A:
About a year.
Q:
Okay. And now are you working as
an RN now?
A:
No.
. . . .
A:
No. I’m executive director for
Kentucky Eye Care.
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Stipe also testified that she did nursing work in labor and
delivery in Kansas and/or Missouri.
Stipe testified that her duties as clinic director
included oversight of medical assistants and daily operations of
the clinic.
Stipe was questioned throughout her deposition as to
the procedure used at the clinic if a patient like Dunn reported
to the receptionist that she was experiencing decreased fetal
movement.
According to Stipe, in that situation the receptionist
was trained to ask the patient if she had called in, tell her to
take a seat, pull the patient’s chart, and then take it to either
Stipe or one of the residents STAT.
The receptionists were
supervised and trained through the clinic’s business office.
Stipe stated that it would be reasonable for this procedure to
take 15 minutes.
In Dunn’s scenario, Stipe estimated that it
would take approximately one-half hour for her to have been seen
by a doctor.
On December 11, 1997, and January 14, 1998, the
Hospital deposed Patricia Fedorka, Ph.D. (Fedorka).2
The basis
of Fedorka’s testimony was that the nurses, medical assistants,
and receptionists in the clinic deviated from accepted standards
of care, and specifically that “Nurse Stipe” deviated from
accepted standards of care for a registered nurse.
Fedorka also
testified that the medical assistants were improperly trained by
Stipe, whom she identified as having responsibility for their
training, and that they failed to follow their own established
policies and procedures.
2
The record only contains the December 11, 1997, deposition.
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On August 20, 1997, Welsh filed his CR 26.02 expert
witness disclosure with the trial court.
Fedorka was identified
as an expert, and her anticipated testimony was that “the nurses
working in the clinic deviated from the acceptable standards of
nursing care and practice in the care of patients.”
The
disclosure was supplemented on January 9, 1998, to show that she
would testify that “the physicians, nurses, medical assistants
and receptionists working in the clinic and hospital deviated
from the acceptable standards of nursing care and practice in the
care of patients.”
There were no further supplements pertaining
to Fedorka’s expected testimony.
Welsh amended his CR 26.02 disclosure again on August
4, 1998, to add Dr. Max Lilling (Dr. Lilling) as an expert
witness.
Dr. Lilling’s anticipated testimony was that “the
physicians, nurses and medical assistants deviated from the
acceptable standards and practice in the care of the two
patients.
. . .
There was inadequate training and supervision
of staff residents, nurses and medical assistants, one or more of
which did not respond in a timely manner either directly or
through their staff.”3
There were no further supplements
pertaining to Dr. Lilling’s expected testimony.
Welsh subpoenaed Stipe to testify as a witness.
Approximately three weeks prior to trial, Mikell Grafton Skinner
(Skinner), one of Welsh’s trial attorneys, met with Stipe.
During this meeting, Stipe informed Skinner that she was not an
3
The deposition of Dr. Lilling is absent from the record on
appeal.
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RN.
Neither Skinner nor Jack Beam, Welsh’s other trial counsel,
dispute the fact that Stipe informed Skinner that she was not an
RN.
It is also apparent that neither Beam nor Skinner informed
opposing counsel or the trial court of Stipe’s disclosure
immediately after becoming aware of the fact.
Kirk contacted Stipe prior to trial to ask if she had
been subpoenaed by Welsh.
Stipe advised that she had been, and
also told Kirk that she had not been provided with a copy of her
deposition testimony.
Five days prior to trial, Kirk met with
Stipe after she had reviewed her deposition.
Stipe told Kirk she was not an RN.
At this meeting,
Stipe also told Kirk that she
had told Skinner she was not an RN.
Despite being advised by
Stipe that she was not an RN, Kirk took no steps to either amend
the Foundation’s prior discovery responses or inform the trial
court of Stipe’s disclosure.
Drs. Potts, Pasic and Gall were represented at trial by
W. Kennedy Simpson (Simpson).
Simpson maintains in his brief on
appeal that he was not aware prior to trial that Stipe was not an
RN.
Kirk advised Simpson during voir dire that Stipe may not
have been licensed as an RN in Kentucky, but Simpson maintains
that he believed Stipe was licensed as an RN in another state.
At trial, Welsh called Dr. Gall as a witness.
While
Welsh was establishing the chain of command at the clinic, the
following line of questioning ensued:
Q:
What about – was her name Susan Dee
Stipe?
A:
Right, she was a nurse.
Q:
Was she a registered nurse?
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She was a registered nurse.4
A:
Stipe took the witness stand immediately after Dr.
Gall.
Stipe admitted that she was not an RN.
Counsel for Welsh
used Stipe’s deposition to impeach her, and the trial court also
permitted Welsh to establish the fact through several other
witnesses that Stipe was not an RN at the time she worked at the
clinic.
After Stipe testified, Welsh presented the expert
testimony of Fedorka and Dr. Lilling.
Despite having failed to
update his previous CR 26.02 disclosures, counsel for Welsh
sought to have Fedorka and Dr. Lilling testify that the fact that
Stipe was not an RN had a negative impact on the quality of care
Dunn received at the clinic.
The trial court refused to allow
this testimony from both witnesses due to Welsh’s failure to
amend his previous CR 26.02 disclosures concerning the testimony
of Fedorka and Dr. Lilling.
Welsh maintains in his brief on appeal that the trial
court erred in refusing to allow Fedorka and Dr. Lilling "to
testify that a non-RN did not know how to triage patients in an
emergency, or how to implement clinic policies during prenatal
care to ensure fetal well-being, which caused the delay in
delivery."
Welsh also contends in his brief that the trial court
erred in its ruling despite the fact that:
1. Wade and Kirk had submitted an
interrogatory stating that Stipe was an R.N.
4
Welsh argues on appeal that Dr. Potts also testified that
Stipe was an RN, but the citation provided to the trial videotape
is incorrect.
-11-
2. Stipe had testified under oath in her
deposition that she was an R.N.
3. Fedorka gave her deposition a year before
plaintiff had any reason to suspect that the
Kirk/Wade interrogatory was false or that
Stipe had perjured herself.
4. Kirk admitted knowing that Stipe was not
an R.N. before trial, but never disclosed
this to plaintiff's counsel.
5. Simpson admitted knowing that Stipe was
not an R.N. before voir dire, but never
disclosed this to plaintiff's counsel.
6. At trial, Simpson permitted his client
Gall to testify under oath (when he testified
in plaintiff's case) that Stipe was a [sic]
R.N.
Conspicuously absent from Welsh's argument on appeal is the fact
that the record clearly shows that counsel for Welsh first
discovered that Stipe was not an RN and failed to tell anyone.
The record makes it abundantly clear that no one involved with
this case had any reason to doubt Stipe's deposition testimony
until she admitted to Skinner that she was not an RN three weeks
prior to trial.
Once counsel for Welsh discovered that Stipe was not an
RN and decided to have his experts testify that this fact had a
negative impact on either the treatment Dunn received on the day
Kevin was born or Kevin's condition at birth, it was his
responsibility to indicate this change in testimony through
supplemental CR 26.02 disclosures.
Had Welsh done so, counsel
for the Appellees would have had an opportunity to prepare for
and defend against this new theory.
Had the trial court admitted
this testimony into evidence, prejudice would have resulted to
the Appellees in that they would have been completely unprepared
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to respond to it.
The fact that Kirk knew Stipe was not an RN
five days prior to trial and that Simpson may or may not have
been aware of Stipe's change in testimony makes no difference.
The fact that counsel for Appellees learned that Stipe was not an
RN five days prior to trial does not automatically place them on
notice that Welsh intended to use this evidence to elicit
testimony from his experts regarding areas that were not included
in the scope of their previous depositions.
We see no fault with the fact that Simpson "allowed"
Dr. Gall to state while testifying on Welsh's behalf that Stipe
was an RN.
It has been shown that while Simpson was operating
under the assumption that Stipe was not licensed as an RN in
Kentucky, he did not know she was not an RN until she stated as
such in her trial testimony.
Additionally, as Welsh points out
in his brief on appeal, Dr. Gall stated while testifying in his
own defense that "he had 'heard something about Stipe not being
licensed in Kentucky'."
Finally, Welsh would have us reverse the trial court's
ruling on this matter due to the fact that Kirk violated CR
26.05(b) by failing to supplement the Foundation’s discovery
responses once he learned that Stipe was not an RN.
While we
agree that Kirk was under an obligation to supplement his prior
responses once he learned that Stipe was not an RN, this
technical argument does nothing to negate the fact that counsel
for Welsh was aware of this fact at least two weeks before Kirk,
and that Kirk knew that counsel for Welsh already knew that Stipe
was not an RN.
As no prejudice resulted to Welsh by Kirk's
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failure to comply with CR 26.05(b), this does not constitute
grounds for reversal.
II.
DID THE TRIAL COURT ERR IN EXCLUDING THE
OPERATIVE REPORT PREPARED BY DR. MINER
AND IN DIRECTING A VERDICT IN FAVOR OF
DR. TUCKER?
As we noted in our initial discussion of the facts, Dr. Tucker
was the first doctor to see Dunn on the day Kevin was born.
Dr.
Tucker testified that she saw Dunn on November 20, 1992, for a
routine visit.5
Dunn told her she had experienced no fetal
movement since November 19.
Dr. Tucker attempted to locate a
fetal heartbeat with a hand-held Doppler unit.
Dr. Tucker
recorded the fact on Dunn’s medical chart that she could not
locate a fetal heartbeat with the Doppler unit.
She next
attempted to locate a fetal heart beat with a portable
ultrasound.
When that also failed, Dr. Tucker transported Dunn
to the clinic's ultrasound laboratory.
Dr. Tucker stated that
the technician established a fetal heartbeat in the 60s.
Dunn
was turned onto her left side, and after approximately two
minutes the fetal heartbeat increased to the 120s.
At that
point, she transferred Dunn to the Hospital's labor and delivery
department.
Dr. Miner delivered Kevin by emergency cesarean
section.
Dr. Miner stated as follows in his operative summary:
INDICATIONS: The patient is a 19-year-old
primigravida white female who has been
followed by the Clinic and is at 39 5/7
weeks. She was seen in Clinic today and
5
Dr. Tucker's testimony consisted of the reading of her
deposition at trial.
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noted to have fetal heart rate deceleration
and bradycardia on Doppler in Clinic. She
was taken for ultrasound and was noted to
have a fetal heart rate of 60. [emphasis
added] She was taken to Labor and Delivery
where she was placed on the monitor and fetal
heart rate was in the 120's with decreased
variability and late decelerations
repetitively. The patient was not responsive
to 02, IV fluids and left lateral tilt.
Therefore, she was taken for primary low
transverse cesarean section for repetitive
late decelerations.
Dr. Miner testified as follows in his deposition in regard
to the above-emphasized portion of the operative summary:
Q:
You — there's some history there
and you — you wrote that she was
seen in the clinic today, noted to
have fetal heart rate decelerations
and bradycardia on Doppler in the
clinic. Did that — to the best of
your recollection, did that history
probably come from your
conversation with Doctor Tucker?
A:
I'm not sure where it came from.
It came from the clinic, but it
could be Doctor Tucker, it could be
a medical student, I'm not sure. I
don't write down where that came
from.
Based on Dr. Miner's operative summary, Welsh sought to
elicit testimony from Dr. Lilling that if Dr. Tucker had found a
fetal heart rate of 60 on the Doppler unit, she deviated from the
accepted standard of care by transferring Dunn to the Clinic's
ultrasound laboratory instead of directly to labor and delivery.
The trial court refused to allow this testimony on the ground
that the operative report was not trustworthy.
On cross-
examination, Dr. Lilling testified that he had no quarrel with
Dr. Tucker's examination of Dunn as it was recorded in the
medical records, and that if what Dr. Tucker said happened was
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true, she did not deviate from the standard of care.
The trial
court ultimately grated a directed verdict in favor of Dr.
Tucker.
Welsh contends that Dr. Miner's operative summary "was
a part of the medical record and admissible under KRE 803(6).”6
Under KRE 803(6), records of a regularly conducted activity are
not excluded by the hearsay rule "unless the source of
information or the method or circumstances of preparation
indicate lack of trustworthiness."
We note at the outset that
the decision whether to admit evidence is vested in the sound
discretion of the trial court and will not be reversed absent a
showing of an abuse of discretion.
Young v. J.B. Hunt
Transportation, Inc., 781 S.W.2d 503, 509 (1989).
Records of a regularly conducted business
activity are not automatically admissible
under the hearsay exceptions of KRE 803
merely because they are records of a
regularly conducted business activity. As
the language of KRE 803(6) provides: "the
element of "trustworthiness" . . . must be
present in order for documents, records or
reports to qualify for admission into
evidence under the exception created for
business records. [Citations omitted.] It
is this element "which the law considers a
substitute for the oath of the declarant,
observation of his demeanor by the jury, and
his cross-examination by the party against
whom the hearsay is offered".
6
Welsh also refers to KRE 803(b), but it is unclear whether
this is a typographical error or a reference to KRE 803(6)(B),
which deals with the admissibility of an opinion contained in
records of a regularly conducted activity. As there is no
allegation that the disputed portion of the operative summary is
Dr. Miner's opinion, we will not address any KRE 803(6)(B)
concerns.
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G.E.Y. v. Cabinet for Human Resources, Ky. App., 701 S.W.2d 713,
715, citing Buckler v. Commonwealth, Ky., 541 S.W.2d 935, 937
(1976).
Dr. Tucker testified that she detected no fetal
heartbeat with the Doppler unit.
She stated that she wrote
"Could not locate fetal heart tones with Doppler" in Dunn's
medical chart.
In regard to what she told Dr. Miner, Dr. Tucker
testified as follows:
Q:
Now, do you have a recollection, independent
recollection, of what you told Dr. Miner?
A:
I do not have a recollection of what I told
him. I know what I usually tell people when
I am sending somebody over to labor and
delivery whether it's STAT or otherwise. I
give a gestational age, I give the situation
and all the information that is essentially
at my — that I have available to me then.
Q:
Did you tell Dr. Miner that there was a fetal
heart tone for two minutes in the 60s?
A:
Yes, I did.
Q:
And do you recall anything that he said in
response to that or anything else you said to
him?
A:
I would have told him the heart tones — that
I couldn't find them in the clinic, that I
found them in the ultrasound department, they
were in the 60s for two minutes, maybe
longer, since I didn't know how long it had
been in the 60s when I started, they had come
back up and she was en route.
Dr. Miner's operative summary states that fetal heart
tones were established by Doppler, which directly contradicts Dr.
Tucker's testimony.
Dr. Miner was unable to testify as to where
this information came from.
Based on the foregoing, we are not
persuaded that the trial court abused its discretion in finding
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the operative summary and Dr. Lilling's testimony related thereto
to be inadmissible.
The same result was reached in Ricciardi v. The
Children's Hospital Medical Center, 811 F.2d 18 (1st Cir. 1987).
In that case, the plaintiff was injured during an operation to
repair an aortic valve.
He was seen in consultation following
his surgery by Dr. Nirmel.
operation.
Dr. Nirmel was not present during the
The three-page handwritten consultation report
prepared by Dr. Nirmel stated that "during surg. episode of
aortic cannula accidentally out x 40-60 secs."
Although Dr.
Nirmel testified that he normally speaks to the medical staff
present before, during, and after surgery, he admitted that he
did not have personal knowledge of the cannula episode and that
he didn't remember who told him about it.
Dr. Nirmel's written
notation was the grounds for the plaintiff's claim that the
cannula episode caused an air embolus to be released into his
blood stream.
In ruling that Dr. Nirmel's notation could not be
entered into evidence, which resulted in the entry of a directed
verdict against the plaintiff, the Court stated:
To be admissible under Rule 803(6), the entry
in the record must be the opinion or
diagnosis of the physician who made it or of
some other "person with knowledge." In
Petrocelli v. Gallison, 679 F.2d 286 (1st
Cir. 1982), this court considered the
admissibility of parts of a hospital record
describing an event during an operation the
patient underwent several months earlier and
containing the patient's description of the
cause of his pain. It was unclear whether
the information originated from the reporting
doctors or from the patient or his wife. Id.
at 290. We said:
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Given the impossibility of
determining from the records
themselves whether these reports
reflected medical judgments, and
the lack of any corroborative
evidence or testimony offered by
the plaintiffs to assure the court
that these were professional
opinions, the district court could
reasonably determine that the
notations were simply too
inscrutable to be admitted, bearing
in mind that, if admitted under
Rule 803(6), they would be admitted
for their truth without any
opportunity to cross-examine the
physicians who made them.
Id. at 291. Although Dr. Nirmel's entry did
not concern an event occurring before the
alleged malpractice, and there is no
indication that the patient himself provided
the information, the note suffers from the
same critical deficiency as the entries in
Petrocelli; the source of the information is
unknown.
Furthermore, a record is not admissible under
the federal rule if "the source of
information or the method or circumstances of
preparation indicate lack of
trustworthiness." Fed. R. Evid. 803(6). An
unknown source is hardly trustworthy.
Ricciardi, 811 F.2d at 22-23.
Like Ricciardi, Dr. Miner was not
present when Dr. Tucker examined Dunn and he does not recall who
told him that a fetal heartbeat was detected with the Doppler
unit.
Thus, the same result can be reached in this case.
In so ruling, we have seriously considered Welsh's
argument pertaining to the fact that "the applicability of the
[business record] exception is not adversely affected by a lack
of knowledge by the maker of the record."
Lawson, The Kentucky
Evidence Law Handbook, Sec. 8.65, p. 464-465 (3rd ed. 1993).
However, we believe that where the purported declarant of a
-19-
statement contained in a business record testifies contrary to
the statement contained in the record itself, the trustworthiness
of the record has been called into question and the trial court
would not be abusing its discretion in excluding the record from
the evidence should the situation so warrant.
As Welsh concedes in his brief on appeal, any liability
of Dr. Tucker was derivative from the operative summary.
"In
ruling on . . . a motion for a directed verdict a trial court
. . . is precluded from entering . . . a directed verdict . . .
unless there is a complete absence of proof on a material issue
in the action[.]"
416 (1985).
Taylor v. Kennedy, Ky. App., 700 S.W.2d 415,
Absent Dr. Miner's operative summary, there was
nothing on which Welsh could base his claim of negligence against
Dr. Tucker.
Thus, the trial court did not err in directing a
verdict in her favor.
III.
DID THE TRIAL COURT ERR (1) IN
INSTRUCTING THE JURY THAT IT COULD
CONSIDER AND APPORTION FAULT TO
DUNN; AND (2) IN IMPUTING ANY
NEGLIGENCE ON THE PART OF DUNN TO
KEVIN?
Welsh argues that the trial court improperly instructed
the jury that it could consider negligence on the part of Dunn
and apportion fault to her.
Welsh also maintains that by
allowing testimony pertaining to “negative conduct” on behalf of
Dunn, the trial court impermissibly imputed any negligence on the
part of Dunn to Kevin.
We disagree.
Instruction/Interrogatory Nos. 1-6 pertained to the
negligence of the Appellees herein.
At the end of
Instruction/Interrogatory No. 6, the jury was instructed that it
-20-
could return to the courtroom if it answered all of the previous
interrogatories in the negative.
The jury was further advised
that if it had answered any of the previous interrogatories in
the affirmative, it was to continue to Instruction/Interrogatory
No. 7, which stated as follows:
Instruction No. 7
At the time and place about which you have
heard evidence, it was the duty of Tambra
Dunn to exercise that degree of care which is
ordinarily expected of a reasonable and
prudent pregnant woman acting under the same
or similar circumstances.
Interrogatory No. 7
Do you believe from the evidence presented in
this case that Tambra Dunn failed to comply
with this duty and that such failure was a
substantial factor in causing the injuries to
Kevin Singer, II?
Under Instruction/Interrogatory No. 8, the jury was directed
to
apportion percentages of fault to the various parties in the
case, including Tambra Dunn.
Even if we were convinced that this constituted error
on behalf of the trial court, it did not result in prejudice to
Welsh or impute Dunn’s negligence to Kevin.
As we noted earlier,
the jurors never considered whether Dunn was negligent because
they never reached Instruction/Interrogatory No. 7.
IV.
DID THE TRIAL COURT ERR IN EXCLUDING
EVIDENCE THAT DUNN'S FMCS AND CLINIC
TIME STUDIES HAD BEEN DESTROYED?
As we discussed earlier, Dunn was periodically given
FMCs on which to record the number of fetal movements she
experienced over a certain time period.
Dunn testified that she
used the FMCs as she was instructed, that the number of movements
-21-
she recorded was within allowable limits, and that she gave the
FMCs to the doctors during her visits to the clinic.
At trial,
some clinic employees testified that FMCs were part of a
patient's record, some testified they were not.
No one testified
that Dunn's FMCs were made a part of her medical record.
When
Dunn sought production of her FMCs, they could not be found.
There was no evidence that the Appellees purposefully destroyed
the FMCs to prevent Dunn from discovering them.
From time to time, the clinic performed time studies to
track the flow of patients through the clinic and to determine
the length of time between check-in and check-out.
Dr. Gall
testified during his deposition that once he reviewed the time
studies, he threw them away.
There was no evidence that a time
study was done while Dunn was a patient at the clinic.
When
Welsh sought production of time study reports from the
Foundation, there were none to produce.
There was no evidence
that the Appellees destroyed any time study which may have been
relevant to this case for the purpose of concealing it from Dunn.
Prior to trial, the Foundation filed a motion in limine
seeking to preclude Welsh from alleging at trial that the
Foundation destroyed the FMCs and time studies.
On February 9,
1999, the trial court entered an order granting the Foundation's
motion, stating:
Plaintiff and his attorneys are prohibited
from commenting and alleging before the jury
that the Defendant Foundation destroyed the
fetal movement cards of Tambra Dunn assuming
all medical experts agree that the damage to
Kevin Singer began not more than five (5)
days before his birth. If, however, there is
testimony that damage may have occurred
-22-
during the time she kept and allegedly
returned the fetal movement cards, the Court
will revisit its ruling herein.
It is further ordered that the motion of [the
Foundation] shall be, and it is hereby
granted, and Plaintiff and his attorneys are
prohibited from commenting and alleging
before the jury that the Defendant Foundation
destroyed the time studies conducted by the
Defendant Foundation subject to further
review during trial if Plaintiff is able to
establish a foundation for relevancy.
Welsh maintains that the trial court erred in refusing
to allow him to present evidence that the FMCs had been
destroyed.
Welsh argues that the FMCs would have shown that Dunn
cooperated.
We disagree.
Dunn testified that she properly used
and returned the FMCs and no evidence was presented or argument
made to the contrary.
All the FMCs would have shown is that Dunn
cooperated to the extent that she completed and returned the
FMCs.
They would not be relevant for the purpose of showing that
she cooperated with any other instructions.
Additionally, as
counsel for the Foundation illustrates in its brief on appeal,
both of plaintiff's experts who testified regarding causation
stated that the majority of Kevin's brain damage occurred in the
hours preceding his birth, and not when Dunn returned the FMCs on
October 7 and October 21, 1992.
The trial court did not err in
refusing to allow Welsh to comment on the destruction of the FMCs
at trial.
In regard to the time studies, Welsh maintains that
they would have corroborated Dunn's testimony regarding how long
she waited to see a doctor the day Kevin was born.
As the trial
court found that the time studies were not relevant, we again
-23-
note that the decision as to whether to admit or exclude evidence
is vested in the trial court and will not be reversed absent
abuse of that discretion.
Young, 781 S.W.2d at 509.
that no abuse occurred in regard to the time studies.
We find
There was
no evidence that any time study was done while Dunn was a patient
at the clinic, and any previous or subsequent time study would
have been irrelevant as to how long she waited to be seen on any
given date while she was a patient at the clinic.
Second, no one
disputed Dunn's testimony that she waited 30 minutes to see a
doctor on the day Kevin was born.
Thus, the trial court did not
abuse its discretion in refusing to allow Welsh to comment on the
destruction of the time studies.
Welsh's reliance on Baylis v. Lourdes Hospital, Ky.,
805 S.W.2d 122 (1991), and McGowan v. Cooper Industries, 863 F.2d
1266 (6th Cir. 1988), is misplaced.
Baylis deals with the
admissibility of medical records into evidence as opposed to the
destruction of evidence.
McGowan addressed preclusion of
testimony pertaining to the routine business practices, which is
not the issue in question.
The trial court's order on this
matter was not erroneous.
V.
DID THE TRIAL COURT IMPERMISSIBLY
LIMIT WELSH'S CROSS-EXAMINATION OF
DR. JEFFREY PHELAN?
At trial, Dr. Jeffrey Phelan (Dr. Phelan) testified
that for all intents and purposes Kevin Singer died in utero
around 6:00 p.m. on November 19, 1992, and resuscitated in utero
around 11:00 a.m. on November 20, 1992, when a heartbeat was
detected on ultrasound.
This was an event which Dr. Phelan
-24-
stated he had seen a number of times.
Upon establishing that Dr.
Phelan believed that Kevin was dead for 17 hours and then
resuscitated, Beam launched into the following line of
questioning:
Q:
And you believe that he was,
basically, like Lazarus who came
back from the dead? Isn't that
what you said?7
A.
Yes sir, I said that and I say it today.
Q:
And so you are saying that he died
on November 19, 1992, and rose from
the dead like Lazarus, is that
right?
A:
Correct.
Q:
You're saying that you believe it
was a miracle that Kevin came back
to life just like Lazarus, is that
right?
A:
Yes sir, I said that and I believe
it today.
Q:
And you said that we should call
this child Lazarus, didn't you?
A:
That's what I nick-named him, yes.
I believe he is a miracle child.
Q:
Do you believe that he came back to
life in the ultrasound lab at
approximately 10:58, is that right?
A:
That's when they found the heart
rate again, yes sir.
Q:
Doctor, do you know the story of
Lazarus?
A:
About — from that perspective that
Christ went back in and raised
Lazarus from the dead.
7
Apparently Dr. Phelan used the Lazarus analogy during his
deposition. The record does not contain a copy of Dr. Phelan's
deposition.
-25-
Q:
And Lazarus was dead for four days,
wasn't he?
A:
I don't know the total days, but it
was a lot longer than Kevin Singer.
Q:
Well you've come into this court
and compared my client to Lazarus,
haven't you?
A:
Yes.
Q:
Why don't you tell us what happened
to Lazarus?
A:
I don't remember the details in the
Bible, other than Christ raised
Lazarus from the dead.
Q:
Well, let me see if I can fill in
some gaps for you and see if you
agree.
A:
Okay.
At this point, an objection was made on the ground that it was
improper for Beam to "testify" to details concerning the Bible’s
account of the resurrection of Lazarus once Dr. Phelan stated
that he didn't know the specific details of the Biblical story.
Beam argued that the questions were proper because Dr. Phelan had
compared Kevin to Lazarus.
The trial court sustained the
objection, but indicated that Beam could ask one more question
regarding Lazarus.
The following ensued:
Q:
Are you aware, Doctor, that in the
book of John . . . that after Jesus
rose [sic] Lazarus from the dead
that Lazarus's sister Martha served
dinner to Lazarus and Jesus?
A:
I don't recall.
Q:
Did you know that Lazarus was
healthy and not blind? Did you
know that?
-26-
Upon objection, the trial court again advised Beam that he could
not educate Dr. Phelan or the jury about the story of Lazarus.
When the Appellees' counsel agreed that they had no objection to
Beam asking Dr. Phelan whether or not Lazarus was brain damaged,
Beam asked one more question:
Q:
You know this much, Doctor, that
Lazarus was a healthy person after
Jesus raised him from the dead? Do
you know that?
A:
Yes, sir.
Beam never argued that the trial court's sustaining of
the objection was a limitation on the scope of his crossexamination of Dr. Phelan.
Nor did Beam argue that the trial
court's actions kept him from exploring the specifics of Dr.
Phelan's opinions under the dictates of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 578, 113 S.Ct. 2786, 125 L.Ed. 2d
469 (1993), or Kumho Tire Company, Ltd. v. Carmichael, 526 U.S.
137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
From our review of
the trial videotape, the only way the trial court limited Beam's
cross-examination regarding Lazarus was that he could not advise
Dr. Phelan in regard to the specifics of the story after he
admitted he did not know them.
As this alleged error was not
properly preserved on appeal, we need not discuss it any further.
VI.
DID THE TRIAL COURT GIVE AN
IMPROPER JURY INSTRUCTION ON THE
ISSUE OF CAUSATION?
In Instruction/Interrogatory Nos. 1-6, the jury was
asked to decide whether the various Appellees breached their
respective duties and whether that breach "was a substantial
factor in causing the injuries to Kevin Singer, II."
-27-
Welsh
maintains in his brief on appeal that the
Instructions/Interrogatories should have instructed the jury to
rule in his favor if the Appellees' "failure to comply with their
duty was a substantial factor in causing the event which results
in the injury, not the injury itself."
We disagree.
Welsh's entire case against each and every one of the
Appellees was that they failed in their duty to deliver Kevin
within a reasonable period of time once Dunn came to the clinic
and told the receptionist that fetal movement had ceased the
night before.
We believe that the instructions ultimately given
by the trial court accurately reflect Welsh's cause of action in
that they ask the jury to determine whether the failure of the
appellees to deliver Kevin within a reasonable period of time
"was a substantial factor in causing the injuries."
Welsh's reliance on Deutsch v. Shein, Ky., 597 S.W.2d
141 (1980), and NKC Hospitals, Inc. v. Anthony, Ky. App., 849
S.W.2d 564 (1993), is misplaced.
At first glance, those cases do
appear to support Welsh's argument that the jury instructions
should have used the language Welsh urges on appeal.
However,
the facts of Deutsch and Anthony require a different result.
In Deutsch, the plaintiff was hospitalized to determine
the cause of her nausea and weakness.
The defendant doctor
submitted the plaintiff to numerous x-rays without first
performing a pregnancy test.
When plaintiff later learned she
was pregnant at the time the x-rays occurred, she made the
agonizing decision to terminate her pregnancy due to her fears
-28-
that the radiation had damaged the fetus.
In explaining the
jury's decision, the Court noted:
The jury found that Dr. Shein failed to use
that degree of care and skill which is
expected of a reasonably competent
practitioner specializing in internal
medicine, acting in the same or similar
circumstances, by not obtaining a pregnancy
test before Mrs. Deutsch was administered xrays. The jury further found, however, that
Dr. Shein's failure to obtain a pregnancy
test, coupled with the administering of xrays, was not a substantial factor in causing
the injury of which Mrs. Deutsch complained.
Deutsch, 597 S.W.2d at 143.
The Court found that it was
erroneous for the jury to find that the doctor's actions were not
a substantial factor in causing the plaintiff's injury once it
had decided that he was negligent in failing to administer the
pregnancy test.
In so holding, the Supreme Court stated:
[t]he jury's finding in the negative was
encouraged by the use of "substantial factor
in causing the injury of which Mrs. Deutsch
complained" in the instructions. Our use of
the substantial factor test . . . shows the
test applies to the event which results in
the injury, not the injury itself. [Citations
omitted.] The injury need only flow directly
from the event.
Id. at 145.
Stated another way, the Court recognized that the x-
rays, and not the doctor's failure to perform a pregnancy test,
were what caused the injury.
Therefore, since the x-ray caused
the injury, the jury had no choice but to absolve the doctor
under the instruction as it was given.
Thus, the jury should
have been instructed to find for the plaintiff if it determined
that the doctor's failure to administer a pregnancy test was a
substantial factor in causing the event that led to the injury.
-29-
The same result was reached in Anthony, which clarified
that the type of instruction sought by Welsh in this case is only
to be used in cases involving superseding/intervening causes.
In
Anthony, the plaintiff's wife, who was pregnant, came to the
hospital with complaints of nausea, vomiting, and abdominal pain.
Her obstetrician, who was called several times and advised as to
the severity of pain, merely prescribed antibiotics and pain
medication and ordered that she be discharged.
One of the nurses
caring for the plaintiff's wife was of the opinion that she
should not be discharged, and she reported her concerns to other
hospital personnel.
However, the plaintiff's wife was discharged
without even being seen by a physician.
She was later re-
admitted to the hospital the same day and ultimately died three
weeks later from complications stemming from delay in diagnosis
of appendicitis and subsequent rupture of the decedent’s
appendix.
At trial, one of the plaintiff's experts testified
that the hospital breached its duty of care by discharging the
plaintiff without first having her examined by a doctor.
The
jury was instructed on the negligence of both the decedent's
doctor and the hospital.
After the plaintiff settled with the
doctor, the jury returned a verdict against the hospital.
On appeal, the hospital argued that the trial court
erred in refusing to grant a directed verdict in its favor
because (1) there was a lack of causation between its negligence
and the decedent's death; (2)
its expert testified that it was
not negligent after the decedent was re-admitted; and (3) that
-30-
the negligence of the decedent's obstetrician continued after she
was re-admitted.
In affirming, this Court stated:
A superseding cause is an intervening
independent force; however, an intervening
cause is not necessarily a superseding cause.
We say that, if the resulting injury is
reasonably foreseeable from the view of the
original actor, then the other factors
causing to bring about the injury are not a
superseding cause. . . . Such train of
thought is in keeping with [Deutsch] . . . .
Deutsch established: "Liability for a
negligent act follows a finding of proximate
or legal cause," which is conduct based on a
substantial factor in bringing about the
harm.
. . . .
The hospital's superseding cause argument
pales when considering the statement in
Deutsch that, "injury need only flow directly
from the event." The hospital, in our
opinion, could readily foresee that injury
would directly flow from Dr. Hawkins'
negligent conduct, and the hospital had all
the time and means to correct it.
Anthony, 849 S.W.2d at 568-569.
Thus, we find no error in the
trial court's instructions.
VII. WAS WELSH PREJUDICED BY THE TRIAL
COURT'S DELAY IN RULING ON A MOTION
IN LIMINE?
On February 12, 1999, four days prior to trial, Welsh
filed a motion in limine asking the trial court to preclude the
Appellees from mentioning Dunn's use of "legal or illegal
cigarettes" during her pregnancy.
In support of his motion,
Welsh argued that none of the experts linked Dunn’s use of
cigarettes during her pregnancy to Kevin’s condition.
Before voir dire began, Welsh asked the trial court to
rule on his motion.
The Appellees did not object to Welsh's
-31-
motion in regard to Dunn's use of marijuana, but maintained that
evidence of Dunn's continued use of cigarettes during her
pregnancy was relevant to the issue of her failure to follow
instructions; i.e., her failure to call the clinic or Hospital
when her baby stopped moving.
The trial court informed the
parties that it would consider Welsh's motion during bench
conferences before any expert offered an opinion on the contested
issues.
Welsh argues that in refusing to rule on his motion
prior to voir dire, the trial court forced him to question the
jury pool regarding their beliefs on Dunn's smoking, thus
prejudicing his case.
Apparently the evidence concerning Dunn's
use of cigarettes during pregnancy was not brought up at trial,
and the only time Dunn's smoking was mentioned to the jury was
during voir dire.
Having conducted an extensive review of the record and
trial, we fail to see how Welsh was prejudiced during voir dire
by his own mention of Dunn's use of cigarettes.
The remarks
concerning Dunn's use of cigarettes came at the beginning of a
trial that spanned fourteen days involving, by our count, twentynine witnesses.
Having considered the record as a whole, we are
not prepared to say that Welsh was prejudiced by the remarks of
his own attorney.
VIII.
DID THE TRIAL COURT ERR IN REFUSING
TO ALLOW WELSH TO PRESENT EVIDENCE
PERTAINING TO THE CONDUCT OF DR.
POTTS?
In 1992, seventeen clinic employees signed a petition
alleging that Dr. Potts's behavior in the clinic was
unacceptable.
Julie Johnson, one of the medical assistants who
-32-
saw Dunn on the day Kevin was born, testified at her deposition
that Dr. Potts was hostile, vulgar and nasty.
Another employee,
Jean Blocker, testified that Dr. Potts made racist remarks, used
foul language, and had a history of fondling female employees.8
According to Blocker, residents in the clinic had problems
working with Dr. Potts, and she described how his behavior
affected the quality of care offered by the clinic.
However,
Blocker also stated that she had no contact with Dunn while she
was a patient at the clinic and that she was unaware of any
problems between Dr. Potts and clinic employees which would have
negatively impacted Dunn's care.
Documents in Dunn's possession
showed that Dr. Potts received a written and verbal reprimand,
underwent counseling, and was urged to attend a discussion on
harassment.
However, Dr. Potts' annual review for 1993 contained
the following notation:
In September 1992, a complaint involving
harassment was made by several clinic
employees. This resulted in my discussion on
December 23 with him regarding this behavior
as well as counseling . . . . It was
apparent, Dr. Potts' behavior was
significantly improved and no further
complaints were registered until the same
employee registered a complaint in July 1993.
Because of this, Dr. Potts has been
temporarily removed from the [clinic] and
will confine his activities to the Operating
Room and to Fort Knox.
The Appellees' motion in limine seeking to preclude Welsh from
bringing Dr. Potts's conduct and discipline to the attention of
the jury was granted.
8
Blocker had previously prevailed in a jury trial on claims
of sexual harassment, apparently stemming from Dr. Potts’s
behavior.
-33-
Welsh maintains in his brief on appeal that:
Clinic Director Potts did not have a clue as
to what "Nurse [sic] Stipe was teaching the
front desk what to do when mom's [sic] like
Tambra presented at the front desk with a
complaint of no fetal movement.
What Welsh overlooks and what Dr. Potts points out in his
appellate brief is that
[t]here is no evidence that any resident or
clinic employee who rendered allegedly
negligent treatment upon Tambra Dunn was
harassed by Dr. Potts, or that any medical
care given to Tambra Dunn was in any way
negatively influenced by Dr. Potts.
Furthermore, we agree that even if evidence pertaining to Dr.
Potts' behavior had any relevance whatsoever, it was highly
prejudicial and thus properly subject to exclusion under KRE 403.
IX.
DID THE TRIAL COURT ERR IN REFUSING TO
GIVE AN AGENCY INSTRUCTION RELATING TO
DR. TURNQUEST?
Welsh maintains that the trial court erred in refusing
to instruct the jury to find in his favor against the Hospital if
the jury found that its agents, including Dr. Turnquest, failed
to comply with any duty owed to Dunn.
We disagree.
Even if this
was error, it does not require reversal as it did not result in
prejudice to Welsh.
Dr. Turnquest was absolved by the jury under
Interrogatory No. 5.
Absent a finding of liability in regard to
Dr. Turnquest, there could be no liability on behalf of the
Hospital.
X.
DID THE CONDUCT OF DEFENSE COUNSEL
RESULT IN PREJUDICE TO WELSH?
Welsh contends that there were several incidents of
behavior on behalf of the various Appellees' attorneys which were
-34-
prejudicial to his case.
We note that the trial court "is vested
with a large discretion in the conduct of the trial of causes and
an appellate court will not interpose to control the exercise of
such discretion by a court of original jurisdiction, unless there
has been an abuse or most unwise exercise thereof."
Transit
Authority of River City (TARC) v. Montgomery, Ky., 836 S.W.2d
413, 416 (1992).
Having set forth the standard of review, we
will address each claim separately despite the fact that many of
these claimed errors were not preserved for our review.
A.
Kirk and Simpson failed to advise the
trial court that Stipe perjured herself
in her deposition testimony.
Having discussed this matter thoroughly in Section I,
supra, we decline to discuss it again.
B.
Frank P. Doheny, Jr. physically grabbed
Welsh's co-counsel.
In his appellate brief Welsh asserts that Frank P.
Doheny, Jr. (Doheny), counsel for the Hospital, was guilty of
"physically grabbing Mikell Grafton Skinner at the bench."
In
responding to the Hospital’s claim that Welsh was exaggerating
the contact between Doheny and Skinner, Welsh asserted that "Mr.
Doheny did not "momentarily touch" . . . but, put his hands on
Mikell Grafton Skinner's shoulders and physically moved her away
from the bench."
A review of the incident in question shows that while
one of the appellees' attorneys was making a motion during a
bench conference, Doheny put one of his hands on Skinner's elbow
and appears to have slightly tugged on it in an attempt to move
closer to the bench.
Skinner moved, said "Excuse me" to the
-35-
court reporter, then looked at Doheny and said "Please don't
touch me.
Thank you."
This incident was so minor that the
attorney making the motion proceeded to do so while this conduct
transpired.
No objection to the physical contact was made.
This
is not grounds for reversal.
C.
Doheny cited the trial court to Roberts
v. Galen of Virginia, Inc., 111 F.3d 405
(6th Cir. 1997) without telling the
trial court that it had been reversed.
While Welsh is correct that the Roberts case was reversed by
the United States Supreme Court in Roberts v. Galen of Virginia,
Inc., 525 U.S. 249, 119 S.Ct. 685, 142 L.Ed.2d 648 (1999), he
neglects to inform this Court that Roberts was reversed for
reasons other than the reason for which it was cited to begin
with, thus this error certainly does not require reversal.
D.
Simpson threw a deposition.
During trial, counsel for Welsh made repeated
allegations that counsel for the Appellees were somehow
responsible for a missing deposition transcript.
When Beam once
again regaled the trial court with this allegation on the ninth
day of trial while the jury was absent from the courtroom,
Simpson threw a copy of the missing deposition approximately six
feet onto Beam's table.
Simpson immediately apologized.
At this
point, the trial court informed all attorneys that it would no
longer entertain charges of attorney misconduct without
supporting affidavits.
Given the fact that the jury was out of
the room when Simpson threw the deposition, we fail to see how
this conduct prejudiced Welsh.
-36-
E.
Simpson failed to wear a suit coat in
court.
Simpson asked for and received permission from the
trial court to dispense with the wearing of a suit coat in the
courtroom.
As this Court is unaware of the existence of a
mandatory list of acceptable courtroom attire, we will not
address this issue.
F.
Simpson walked to the visitor's gallery,
put his foot on the bench seat, and
conversed with his mother during closing
arguments.
We do not believe Welsh was prejudiced by this
behavior.
Simply put, these allegations of misconduct which
occurred over the course of a 14-day trial do not, even when
considered in their entirety, reach the level required for
reversal.
We affirm the judgments of the Jefferson Circuit Court.
ALL CONCUR.
ORAL ARGUMENT FOR APPELLANTS:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE, UNIVERSITY
GYNECOLOGICAL & OBSTETRICAL
FOUNDATION, INC.:
Mikell Grafton Skinner
Louisville, KY
BRIEF FOR APPELLANTS:
Michael K. Kirk
Louisville, KY
Mikell Grafton Skinner
Louisville, KY
ORAL ARGUMENT FOR APPELLEE,
GALEN OF VIRGINIA, INC.:
Jack Beam
Littleton, CO
Frank P. Doheny, Jr.
Louisville, KY
BRIEF FOR APPELLEE, GALEN OF
VIRGINIA, INC.:
-37-
Beverley Glascock
Frank P. Doheny, Jr.
Louisville, KY
ORAL ARGUMENT FOR APPELLEE,
C. S .B. TUCKER:
Paul J. Bishop
Louisville, KY
BRIEF FOR APPELLEE, C. S. B.
TUCKER:
William P. Swain
William O. Guethlein
Louisville, KY
BRIEF AND ORAL ARGUMENT FOR
APPELLEES, DR. TURNQUEST, DR.
POTTS, DR. PASIC AND DR. GALL:
W. Kennedy Simpson
Louisville, KY
-38-
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