BAPTIST HEALTHCARE SYSTEM, INC. D/B/A/ CENTRAL BAPTIST HOSPITAL v. GOLDA H. MILLER
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RENDERED: May 23, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000083-MR
BAPTIST HEALTHCARE SYSTEM, INC.
D/B/A/ CENTRAL BAPTIST HOSPITAL
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 98-CI-02593
v.
GOLDA H. MILLER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BAKER, BARBER AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Baptist Healthcare System, Inc., d/b/a Central
Baptist Hospital has appealed from the judgment entered by the
Fayette Circuit Court on December 10, 2001, which awarded Golda
Miller $100,100.00 for injuries she received as a result of its
negligence.
Having concluded that the trial court committed no
reversible error, we affirm.1
1
Although Miller initially filed a cross-appeal against Central Baptist
Hospital, this Court dismissed same on December 11, 2002, as it was rendered
On July 18, 1997, pursuant to a doctor’s order, Miller
went to the Central Baptist Hospital Satellite Laboratory to
have her blood drawn.
In the process of drawing blood from
Miller, Beth Morris, a phlebotomist and Central Baptist
Hospital’s former employee, placed a tourniquet on Miller’s
right arm and then left the room for approximately eight minutes
before returning to collect her blood vials.2
Miller alleged
that the tourniquet was on her arm for a total of ten minutes,
that her arm became swollen, and that she felt pain through her
right arm and shoulder.
Miller incurred numerous medical
expenses as a result of treatment that was required as a result
of this incident.
A jury trial was scheduled for April 30, 2001.
On
April 9, 2001, Central Baptist Hospital moved for summary
judgment on the issue of liability and a hearing was held on
April 20, 2001.
Central Baptist Hospital argued that it was
entitled to a summary judgment because Miller had failed to
identify an expert witness who could testify that it breached
moot by the Supreme Court’s recent decision in Tuttle v. Perry, Ky., 82
S.W.3d 920 (2002).
2
Phlebotomy, also known as venipuncture, “is the procedure of collecting a
blood sample through the insertion of a needle into a vein.” Paige
Pfenninger, Venipuncture –- Can Collection of Blood Samples Lead to Injury?,
17 NO. 7 Med. Malpractice L. & Strategy 4 (May 2000). “A phlebotomist is
trained to draw blood from the human body.” Speers v. Commonwealth, Ky., 828
S.W.2d 638, 640 (1992).
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the standard of care in this medical malpractice action.3
Miller
argued that the case involved “ordinary negligence,” rather than
“medical malpractice,” since phlebotomists in Kentucky are
neither licensed nor regulated.
Miller contended that Central
Baptist Hospital’s phlebotomist had failed to meet her
employer’s standard of care based on its own training manual and
videos.
The trial court determined that since phlebotomy is a
widespread medical service, a specific medical standard of care
is mandatory.
The trial court denied Central Baptist Hospital’s
motion for summary judgment, continued the trial, and allowed
Miller an additional 30 days to identify an expert witness.
The case was tried before a jury on September 26 and
27, 2001.
Miller’s expert witness was Denise Dunn, a
phlebotomist at the University of Kentucky who had previously
worked at Central Baptist Hospital.
Dunn testified as to the
standard of care for phlebotomists, and stated that a
phlebotomist should never leave a patient alone and that a
tourniquet should only be positioned on a patient’s arm for one
to three minutes.
Dunn testified that if a tourniquet is left
on a patient for more than three minutes, the patient’s blood
may become hemolyzed.
Dunn described hemolyzed as where “the
cells are crushed,” which is the result of an improperly drawn
blood sample.
3
Furthermore, Dunn testified that leaving a
Welch v. American Publishing Co. of Kentucky, Ky., 3 S.W.3d 724 (1999).
-3-
tourniquet on a patient too long may lead to an elevation in
blood test results, including cholesterol.
Dunn’s testimony was
largely premised upon a piece of paper she had obtained from her
employer,4 which she conceded she did not understand.
Central Baptist Hospital offered Cynthia Applegate, an
employee and former director of its laboratories, as a witness
to interpret Miller’s blood report.
Miller took the position
that such an opinion should not be allowed since it would
constitute expert testimony and Applegate had not been disclosed
as an expert witness until the day before trial.
The trial
court ruled that Applegate could read from the report and
testify that it did not indicate any problems with the blood
drawn, but that she could not express an opinion about the lab
report.
During closing argument, Miller’s counsel read from
Miller’s lab report and argued that the elevated cholesterol
level indicated that Miller’s blood had hemolyzed and that the
tourniquet had been left on her arm too long.
Central Baptist
Hospital objected to this line of argument, but the trial court
ruled that counsel’s argument was proper because counsel was
only reading from the lab report, not interpreting it.
4
The record is quite confusing concerning the origin of this paper.
Apparently, this paper is found in a seminar book published by the National
Committee on Clinical Laboratory Standards.
-4-
At trial Central Baptist Hospital moved the trial
court to limit Miller’s recovery of medical expenses to those
that are considered “paid in full.”
Central Baptist Hospital
argued that it was only liable for medical expenses up to the
amount actually allowed by Miller’s Medicare coverage.
In the
interests of judicial economy, the trial court denied Central
Baptist Hospital’s motion for a directed verdict regarding
Miller’s medical expenses and reserved ruling on its motion
until after the jury’s verdict.
The jury found that Central Baptist Hospital breached
its duty to Miller and returned a verdict for her in the amount
of $154,000.00.
However, the jury also assessed 35% comparative
fault against Miller, thus reducing her recovery to $100,100.00.
At a post-trial hearing held on December 14, 2001, the trial
court denied Central Baptist Hospital’s motion on the issue of
the medical expenses reasoning that if there was to be any
“windfall” that it should go to Miller who was the injured
victim and not Central Baptist Hospital as the negligent party.
This appeal followed.
Central Baptist Hospital claims the trial court erred
by denying its motion for summary judgment because at the time
the motion was heard Miller could not have prevailed at trial
without expert testimony concerning the phlebotomist’s standard
of care.
For negligence to be established there must have been
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(1) a duty owing the plaintiff by the defendant, (2) a breach of
that duty which (3) was the proximate cause of the injuries
which resulted in (4) damages.5
“[I]n medical malpractice cases,
expert testimony is always used to show the standard of care for
a particular type of practice and procedure.”6
Furthermore, the
Supreme Court of Kentucky has noted that
[i]t is an accepted principle that in most
medical negligence cases, proof of causation
requires the testimony of an expert witness
because the nature of the inquiry is such
that jurors are not competent to draw their
own conclusions from the evidence without
the aid of such expert testimony [footnote
omitted].7
While the above statements of the law are not in
dispute, we believe the issue can be more clearly stated as
whether the trial court abused its discretion by allowing Miller
additional time to identify an expert witness in phlebotomy.
Since the trial court ruled that an expert would be required to
prove any medical negligence by Central Baptist Hospital, it was
not unreasonable for the trial court to allow Miller additional
time to identify such an expert witness.
The former Court of
Appeals has held that “[t]he action of the trial court on
5
Helton v. Montgomery, Ky.App., 595 S.W.2d 257, 258 (1980).
6
Hamby v. University of Kentucky Medical Ctr., Ky.App., 844 S.W.2d 431, 434
(1992).
7
Baylis v. Lourdes Hospital, Inc., Ky., 805 S.W.2d 122, 124 (1991) (citing
Jarboe v. Harting, Ky., 397 S.W.2d 775 (1965); Johnson v. Vaughn, Ky., 370
S.W.2d 591 (1963)).
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motions for a continuance will, from the very nature of things,
be upheld by this court unless there appears from the record
something to show an abuse of the discretion lodged in that
court.”8
We cannot say that the trial court’s decision to allow
an additional 30 days for this purpose was an abuse of
discretion.
Central Baptist Hospital also claims the trial court
erred by improperly limiting its evidence regarding the lab
report and by allowing Miller’s counsel to make an improper
closing argument on the same issue.
Since Applegate was not an
expert witness, the trial court correctly ruled that she could
not express an expert opinion about Miller’s lab report or
testify with regard to what constitutes a hemolyzed blood draw.
Furthermore, the trial court did not err by allowing
Miller’s counsel to read from the lab report during closing
argument.
Contrary to Central Baptist Hospital’s argument,
Miller’s counsel did not provide an unimpeachable expert
opinion.
The record reflects that during closing argument
Miller’s counsel only read from Miller’s lab report, not that he
interpreted the results of the lab report.
The record further
reflects that the trial court offered Central Baptist Hospital’s
counsel the opportunity to read from the lab report but she
chose not to.
8
The trial court commented that “anybody” could
Holliday v. Cornett, 196 Ky. 427, 431, 244 S.W. 875, 876 (1922).
-7-
read the results of Miller’s lab report to determine if her
cholesterol level was increased.
Central Baptist Hospital’s
allegation that Miller’s counsel expressed an expert medical
opinion is unsubstantiated by the record.
Central Baptist Hospital’s final claim is that the
trial court should have granted its motion for a directed
verdict on the issue of Miller’s medical expenses.
Miller
requested a recovery of $40,922.08 to satisfy her medical
expenses from different healthcare providers; however, the jury
awarded her $34,000.00 for her reasonable and necessary medical
expenses.
Central Baptist Hospital argues that
[Miller] should not be allowed to recover
the entire billed amount [of medical
expenses] despite the fact that [she], nor
any collateral source on her behalf, has any
legal obligation to pay the difference.
[Miller] should have been limited to recover
only those expenses that constitute “full
payment.”
“The collateral source rule is applicable when an
injured plaintiff has received compensation from a third party
having no connection with the wrong inflicted by the defendant.”9
Miller argues that the “law in Kentucky has been well
established that the tortfeasor is not to benefit because of the
[p]laintiff’s foresight in having collateral insurance to assist
her in paying of her medical expenses.”
9
“In such cases, the
Usaco Coal Co. v. Liberty National Bank & Trust Co. of Louisville, Ky.App.,
700 S.W.2d 69, 72 (1985) (citing 22 Am.Jur.2d Damages § 206 et seq. (1965)).
-8-
court is faced with a choice of recognizing the collateral
contribution and thus a ‘windfall’ to the wrongdoer, or not
recognizing the receipt of collateral funds and essentially
allowing plaintiff to be overcompensated.”10
In O’Bryan v. Hedgespeth,11 the Supreme Court held KRS
411.18812 to be unconstitutional.
The Court declared that
[b]efore KRS 411.188 was enacted, evidence
of payments to the plaintiff from medical or
disability insurers was excluded as
irrelevant, recognizing that such payments
have no bearing on the issue to be
judicially decided, the amount of damages
the plaintiff has incurred and is entitled
10
Id. at 72.
11
Ky., 892 S.W.2d 571 (1995).
12
KRS 411.188 provides as follows:
(1) This section shall apply to all actions for
damages, whether in contract or tort, commenced after
July 15, 1988.
(2) At the commencement of an action seeking to
recover damages, it shall be the duty of the
plaintiff or his attorney to notify, by certified
mail, those parties believed by him to hold
subrogation rights to any award received by the
plaintiff as a result of the action. The
notification shall state that a failure to assert
subrogation rights by intervention, pursuant to
Kentucky Civil Rule 24, will result in a loss of
those rights with respect to any final award received
by the plaintiff as a result of the action.
(3) Collateral source payments, except life
insurance, the value of any premiums paid by or on
behalf of the plaintiff for same, and known
subrogation rights shall be an admissible fact in any
civil trial.
(4) A certified list of the parties notified pursuant
to subsection (2) of this section shall also be filed
with the clerk of the court at the commencement of
the action.
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to recover from the wrongdoer in the civil
action, nor does it matter that the source
of the collateral source benefits may be
entitled to reimbursement from the recovery
because of contractual or statutory
subrogation rights. See, e.g., Davidson v.
Vogler, Ky., 507 S.W.2d 160, 164 (1974) and,
more recently, Burke Enterprises, Inc. v.
Mitchell, Ky., 700 S.W.2d 789, 796 (1985),
stating that “to depart from the collateral
source rule would provide the tortfeasor a
‘windfall’ to the substantial detriment of
the injured party.” There is no legal
reason why the tortfeasor or his liability
insurance company should receive a
“windfall” for benefits to which the
plaintiff may be entitled by reason of his
own foresight in paying the premium or as
part of what he has earned in his
employment, and benefits received are
usually subject to subrogation so there is
no “double recovery” by any stretch of the
imagination.13
Central Baptist Hospital argues that “there is no
legal reason why the tort victim should receive a ‘windfall’ and
a ‘double recovery’ when the tort victim, the tort victim’s
insurer, or other collateral source payors are not responsible
for payment of the benefits.”
Additionally, Central Baptist
Hospital asserts that “[o]ne does not have to stretch the
imagination to see that claimants are receiving double
recoveries in courts everyday when they are allowed to submit
their medical bills rather that amount actually paid or payable
as full payment is submitted to the jury.”
Accordingly, Central
Baptist Hospital contends that Miller’s recovery of the
13
O’Bryan, 892 S.W.2d at 576.
-10-
difference between the amount indicated on her medical bills and
the amount actually owed as full payment provides her with a
windfall or double recovery.
The former Court of Appeals has held “that an injured
person who carries hospitalization or medical expense insurance
may recover hospital and medical expenses from the tortfeasor
who injured [her], although [she] has been or will be reimbursed
for those expenses by the insurance carrier.”14
Additionally,
the Supreme Court has “allowed an injured plaintiff to recover
all medical expenses incurred even though a substantial portion
of the bill was paid by Medicare.”15
The collateral source rule
“provides that ‘a defendant must bear the full cost of the
injury he caused the plaintiff, regardless of any compensation
the plaintiff receives from an independent or ‘collateral’
source.’”16
It is clear under Kentucky law that Central Baptist
Hospital may not benefit from the fact that Miller received
payment of her medical expenses from a third party or that her
required payment was reduced by law.
The trial court correctly
denied Central Baptist Hospital’s motion.
14
Conley v. Foster, Ky., 335 S.W.2d 904, 907 (1960) (citing Taylor v.
Jennison, Ky., 335 S.W.2d 902 (1960)).
15
Daugherty v. Daugherty, Ky., 609 S.W.2d 127, 128 (1980) (citing Our Lady of
Mercy Hospital v. McIntosh, Ky., 461 S.W.2d 377 (1970)).
16
McCormack Baron & Associates. v. Trudeaux, Ky.App., 885 S.W.2d 708, 710
(1994) (citing Daena A. Goldsmith, A Survey of the Collateral Source Rule:
The Effects of Tort Reform and Impact on Multistate Litigation, 53 J. Air L.
& Com. 799 (1988)).
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For the foregoing reasons, the judgment of the trial
court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
F. Allon Bailey
Lynn Rikhoff Kolokowsky
Lexington, Kentucky
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Fred E. Peters
Lexington, Kentucky
ORAL ARGUMENT FOR APPELLANT:
Lynn Rikhoff Kolokowsky
Lexington, Kentucky
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