SANDY KELLY, ANCILLARY ADMINISTRATRIX OF THE ESTATE OF GUSTAVE HOLLANDER, DECEASED v. KENETH TUFTS, M.D.
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RENDERED: JULY 27, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000536-MR
SANDY KELLY,
ANCILLARY ADMINISTRATRIX
OF THE ESTATE OF
GUSTAVE HOLLANDER, DECEASED
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
ACTION NO. 95-CI-03250
v.
KENETH TUFTS, M.D.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, KNOPF AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
Sandy Kelly, Ancillary Administratrix of the
Estate of Gustave Hollander (Kelly) appeals from a trial verdict
and judgment entered by the Fayette Circuit Court on July 26,
1999, in favor of Kenneth Tufts, M.D. (Dr. Tufts).
We affirm.
During the 1980s, Gustave Hollander (Hollander)
suffered a series of strokes, including one in 1986 which left
him partially paralyzed on his right side.
The strokes also
caused Hollander to develop multiple infarct dementia, a
condition which causes agitation and combativeness.
From 1986 to 1994, Hollander lived in Illinois
his daughter, Donna Pederson (Pederson),
with
and her husband.
The
Pedersons cared for Hollander with the help of a live-in
attendant.
Pederson testified at trial that Hollander generally
had a good disposition but could become combative when they would
provide for his personal needs.
According to Pederson, when
Hollander became agitated he could be controlled by holding his
non-paralyzed arm or by using a wrist restraint.
There was also
testimony that some health care workers refused to care for
Hollander while he lived with the Pedersons due to his
combativeness.
Hollander was admitted to Pine Meadows Nursing Home
(PMNH) in Lexington, Kentucky, on September 23, 1994.
Although
there was some controversy as to whether this was a permanent
move, PMNH was chosen because Kelly, who is Hollander’s
granddaughter, lives in Lexington.
Dr. Tufts, the medical director of PMNH at the time of
Hollander’s admission, was chosen by Hollander’s family to act as
his attending physician.
At the time Hollander was admitted, Dr.
Tufts prescribed Navane, an anti-psychotic drug, to control
Hollander’s agitation and combativeness.
Navane was first administered to Hollander on September
26, 1994, following several instances where he struck nursing
home staff.
30, 1994.
Dr. Tufts doubled Hollander’s dosage on September
Dr. Tufts admitted at trial that he did not seek
consent from Hollander’s family to treat him with Navane at the
time he originally prescribed it or when he doubled the dosage.
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Kelly visited Hollander on September 28, 1994, and
noted that he appeared to be drugged.
Although she called
Pederson and advised her of her concerns, neither Kelly nor
Pederson objected to the use of Navane at that time.
On October
7, 1994, when Kelly noticed that Hollander was too weak to sip
liquids through a straw, the family was advised for the first
time that he was being given Navane.
They asked that the Navane
be discontinued and Dr. Tufts complied with their request.
On October 13, 1994, Hollander was transferred to St.
Joseph’s Hospital, where he was noted to be suffering from
dehydration, pneumonia, and malnutrition.
Hollander died on
October 17, 1994, of bilateral pneumonia and congestive heart
failure.
Kelly filed suit against PMNH and Dr. Tufts.
In regard
to Dr. Tufts, Kelly alleged that his failure to obtain consent to
treat Hollander with Navane was a breach of his duty of care.
At trial, Kelly presented expert testimony from Dr.
Kelly Clark (Dr. Clark), a psychiatrist.
Dr. Clark testified
that Navane is an anti-psychotic medication which has sedative
and tranquilizing side effects.
In Dr. Clark’s opinion, Dr.
Tufts’ use of Navane to control Hollander’s behavior was improper
and violative of his standard of care.
Dr. Clark further
testified that the use of Navane coupled with Dr. Tufts’ failure
to monitor Hollander’s condition were substantial factors in
causing his death.
According to Dr. Clark, the use of Navane
compromised Hollander’s ability to eat, drink, and move about.
This in turn weakened Hollander, making him more susceptible to
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contracting pneumonia, and reduced his body’s ability to recover
from pneumonia once it developed.
Kelly also offered expert
testimony from Dr. George Nichols (Dr. Nichols), a former medical
examiner.
Dr. Nichols testified that Hollander died of chronic
heart failure and pneumonia.
Dr. Nichols could not state whether
Dr. Tufts’ use of Navane was a substantial factor in causing
Hollander’s death.
Kelly did not offer any expert testimony as
to whether Dr. Tufts’ failure to obtain consent from Hollander’s
family before treating Hollander with Navane was a breach of his
duty of care.
Dr. Tufts presented expert testimony from Dr. John
Pappas and Dr. Larry Russell.
Both Dr. Pappas and Dr. Russell
testified that the standard of care does not require a physician
to consult with or obtain consent from family members prior to
prescribing medications such as Navane when the physician has
been designated to care for a patient in a nursing home.
Dr. Tufts and Dr. Russell also testified that the use
of Navane to treat agitation and combativeness in nursing home
patients is an acceptable “off label” use of Navane.
They
further stated that the use of and doubling of the dosage of
Navane was appropriate in Hollander’s care, as was its
discontinuation at the family’s request.
Dr. Russell further
testified that he frequently uses Navane in his practice and that
he does so without seeking or obtaining consent to treatment with
Navane from family members.
Dr. Tufts offered similar testimony.
At the close of evidence, Kelly sought a directed
verdict against Dr. Tufts on the issue of Dr .Tufts’ liability in
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battery based on his admission that he failed to obtain consent
from Hollander or a family member prior to treating him with
Navane or doubling the dosage.
Kelly’s motion was denied.
Kelly also tendered the following jury instruction
regarding Dr. Tufts’ failure to obtain consent:
You will find for [Kelly] against Kenneth
Tufts, M.D., if you are satisfied from the
evidence that [he] initiated treatment of
[Hollander] with the drug, Navane, without
the consent of Mr. Hollander or the consent
of a responsible family member. Otherwise,
you will find for [Dr. Tufts] under this
instruction.
The trial court refused this instruction.
Kelly also tendered
the following instruction as to Dr. Tufts’ duty of care:
The Court instructs the Jury that it was the
duty of [Dr. Tufts], in rendering care to
[Hollander], to exercise the degree of care
and skill expected of a reasonably competent
physician acting under similar circumstances
as those in this case.
If you are satisfied from the evidence that
[Dr. Tufts] failed to comply with this duty
and that such failure was a substantial
factor in causing [Hollander] to receive
improperly prescribed or improperly monitored
medication, then you will find for [Kelly];
otherwise you will find for [Dr. Tufts] under
this Instruction.
The trial court refused this instruction and instead instructed
the jury as follows:
It was the duty of [Dr. Tufts] in treating
[Hollander] to exercise the degree of care
and skill expected of a reasonably competent
physician specializing in internal medicine
and acting under the same or similar
circumstances as in this case.
This was the only instruction given which pertained exclusively
to Dr. Tufts.
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Following deliberations, the jury returned a verdict in
favor of Dr. Tufts, and on July 26, 1999, the trial court entered
judgment in favor of Dr. Tufts.1
I.
This appeal followed.
DID THE TRIAL COURT ERR IN FAILING TO
GRANT A DIRECTED VERDICT IN KELLY’S
FAVOR ON THE ISSUE OF DR. TUFTS’ FAILURE
TO OBTAIN CONSENT FROM HOLLANDER’S
FAMILY PRIOR TO TREATING HIM WITH
NAVANE?
Based on Dr. Tufts’ admission that he did not obtain
consent to treat Hollander with Navane, Kelly contends that the
trial court erred in refusing to grant her motion for directed
verdict as to Dr. Tufts’ liability in battery.
We disagree.
Kelly’s argument on this area overlooks the fact that
Hollander’s family chose Dr. Tufts to act as Hollander’s treating
physician and consented to his treatment of Hollander.
Kelly’s
reliance on Vitale v. Henchy, Ky., 24 S.W.3d 651 (2000) is
misplaced as that case involved a surgeon who operated on a
patient without consent.
The same is true of Kelly’s reliance on
Coulter v. Thomas, 33 S.W.3d 522 (2000), which involved
revocation of consent to a medical procedure.
There has never
been any allegation that Dr. Tufts continued to treat Hollander
with Navane after his family asked that it be stopped, or that
his family revoked their consent to Dr. Tufts’ treatment of
Hollander.
Nor do we believe that Tabor v. Scobee, Ky., 254
S.W.2d 474 (1951) applies as that case involved a surgeon who
performed an unauthorized surgical procedure during the course of
an authorized surgery.
We find that the fact that Hollander’s
1
The jury did, however, return a verdict in Kelly’s favor on
her claims against PMNH.
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family selected Dr. Tufts and gave consent to his treatment of
Hollander removes the matter from the scope of battery, and we
agree with Dr. Tufts that the proper question to be resolved by
the jury was whether he acted outside the accepted standard of
medical care in prescribing Navane to Hollander without the
family’s specific consent to the medication.
I.
DID THE TRIAL COURT ERR IN FAILING TO
GIVE THE INSTRUCTION TENDERED BY KELLY
PERTAINING TO DR. TUFTS’ STANDARD OF
CARE?
Kelly contends that the trial court erred in refusing
the instruction she tendered in regard to the negligence of Dr.
Tufts.
Kelly maintains that the tendered instruction “was
modeled upon the instruction discussed and approved in the case
of Deutsch v. Shein, Ky., 579 S.W.2d 141 (1980).”
Kelly also
relies on House v. Kellerman, Ky., 519 S.W.2d 380 (1974), and
Harris v. Thompson, Ky., 497 S.W.2d 422 (1973), in support of the
tendered instructions.
After reviewing the cases cited by Kelly,
we are not convinced that the trial court’s refusal to use
Kelly’s instruction was erroneous as the type of instruction she
sought “is only to be used in cases involving
superseding/intervening causes.”
Welsh v. Galen of Virginia,
Inc., ____ S.W.3d ____ (2000).
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 terminated her pregnancy due to
her fears that the radiation had damaged the
fetus. In explaining the jury’s decision,
the Court noted:
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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 x-rays. The jury
further found, however, that Dr.
Shein’s failure to obtain a
pregnancy test, coupled with the
administering of x-rays, 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 Court
stated that:
[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 applied 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 instructions 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.
Welsh, ____ S.W.3d at ____.
The instruction given by the trial
court does not constitute reversible error.
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I.
DID THE TRIAL COURT ERR IN ADMITTING THE
RESULTS OF AN ACTION BY THE KENTUCKY
BOARD OF MEDICAL LICENSURE INTO
EVIDENCE?
After Hollander’s death another daughter, Barbara
Echeverri, filed a grievance against Dr. Tufts with the Kentucky
Board of Medical Licensure (the Board).
Following an
investigation consisting of a review of Hollander’s medical
records and witness interviews, the Board concluded that Dr.
Tufts’ care of Hollander did not violate the Kentucky Medical
Practices Act.
Prior to trial, Kelly filed a motion in limine
seeking to preclude any mention of the Board’s findings or
conclusions at trial, but the motion was denied.
Although the
trial court permitted counsel to ask expert witnesses at trial
whether the findings of the Board impacted on their opinions, the
trial court refused to admit the Board’s written report into
evidence.
Kelly maintains that the admission of the results of
the Board’s investigation of Dr. Tufts is reversible error.
In
support of her argument, she relies on Shatz v. American Surety
Company of New York, Ky., 295 S.W.2d 809 (1955), which held that
a judgment of acquittal rendered by a jury in a criminal
proceeding is not admissible as evidence in a civil action based
on the same facts.
Even if we were to find that the admission of the
Board’s findings was erroneous, we believe that any error
resulting therefrom was non-prejudicial and does not require
reversal.
Kentucky Lake Vacation Land v. State Property and
Buildings Commission, Ky., 333 S.W.2d 779, 781 (1960).
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As Dr.
Tufts points out, the actual written report rendered by the Board
was not admitted into evidence, and it appears that its use was
limited to asking several expert witnesses whether the Board’s
findings had any impact on their opinion regarding Dr. Tufts’
care of Hollander.
The trial verdict and judgment of the Fayette Circuit
Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Stephen M. O’Brien, III
Lexington, KY
Clayton L. Robinson
Lynn K. Rikhoff
Lexington, KY
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