BARRY GORDON, INDIVIDUALLY AND ALSO REPRESENTATIVE OF THE ESTATE OF LORI GORDON, DECEASED; AND STUART GORDON, BY AND THROUGH HIS PARENT AND NEXT FRIEND, BARRY D. GORDON; AND SAMANTHA GORDON, BY AND THROUGH HER PARENT AND NEXT FRIEND, BARRY D. GORDON v. WARREN KEMPER, M.D.
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RENDERED:
MARCH 25, 2005; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001983-MR
AND
CROSS-APPEAL NO. 2002-CA-002043-MR
BARRY GORDON, INDIVIDUALLY AND ALSO
AS SURVIVING SPOUSE AND PERSONAL
REPRESENTATIVE OF THE ESTATE OF
LORI GORDON, DECEASED; AND
STUART GORDON, BY AND THROUGH
HIS PARENT AND NEXT FRIEND,
BARRY D. GORDON; AND SAMANTHA
GORDON, BY AND THROUGH HER
PARENT AND NEXT FRIEND,
BARRY D. GORDON
APPELLANTS/CROSS-APPELLEES
APPEALS FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 97-CI-003774
v.
WARREN KEMPER, M.D.
APPELLEE/CROSS-APPELLANT
OPINION AND ORDER
AFFIRMING IN PART
REVERSING AND REMANDING IN PART
APPEAL NO. 2002-CA-001983-MR AND
DISMISSING CROSS-APPEAL NO. 2002-CA-002043-MR
** ** ** ** **
BEFORE:
MINTON, SCHRODER, AND TAYLOR, JUDGES.
TAYLOR, JUDGE:
This is an appeal from a Final Judgment entered
by the Jefferson Circuit Court upon a jury verdict dismissing a
medical malpractice action against Warren Kemper, M.D.
Barry
Gordon, individually and also as surviving spouse and personal
representative of the estate of Lori Gordon, deceased, and
Stuart Gordon, by and through his parent and next friend, Barry
D. Gordon, and Samantha Gordon, by and through her parent and
next friend, Barry D. Gordon (collectively referred to as
appellants) bring Appeal No. 2002-CA-001983-MR from an April 3,
2002, Final Judgment of the Jefferson Circuit Court.
Warren
Kemper, M.D. brings Cross-Appeal No. 2002-CA-002043-MR from the
April 3, 2002, Final Judgment of the Jefferson Circuit Court.
We affirm in part and reverse and remand in part Appeal No.
2002-CA-001983-MR.
We dismiss Cross-Appeal No. 2002-CA-002043-
MR.
In early February 1996, Lori, then 38 years of age and
otherwise in good health, suddenly experienced severe nausea,
chest pain, and dizziness.
By ambulance, Lori was transported
to Baptist Hospital East in Louisville, Kentucky.
She received
a cardiovascular evaluation by Dr. George Stacy but was
subsequently discharged without a firm diagnosis.
On April 14, 1996, Lori was at the movie theater with
one of her children when the symptoms suddenly returned.
The
nausea and chest pain were so severe that an ambulance was
needed.
Lori was again taken to Baptist Hospital East, and the
emergency room physician, Dr. Charles Smith, found nothing
2
medically wrong with Lori.
He prescribed Ativan for anxiousness
and recommended she see an internist.
One day later, on April 15, Lori saw Dr. Kemper, an
internist, at his office.
reported to be 137 pounds.
At this time, Lori’s weight was
Dr. Kemper ordered an ultrasound of
the gallbladder to rule out gallbladder disease.
prescribed Xanax for anxiety.
He also
Dr. Kemper subsequently
interpreted the ultrasound to be within normal limits.
It appears that Lori and/or her husband called Dr.
Kemper several times after April 15.
to worsen.
Lori’s symptoms continued
Because of the severity of Lori’s symptoms, a family
trip to Disney World was cancelled.
The nausea had even caused
Lori to pass out at her child’s preschool.
In late April 1996,
Dr. Kemper ordered a Computed Axial Tomography (CAT) Scan of the
abdomen; the CAT Scan report revealed a two-centimeter cavernous
hemangioma on the right lobe of the liver and a two-centimeter
right ovarian cyst.
within normal limits.
Dr. Kemper interpreted this report as being
Having ruled out what he believed to be
all physical causes for Lori’s symptoms, Dr. Kemper opined that
her symptoms were caused by anxiety and/or panic attacks.
He
believed Lori needed psychiatric care, not medical treatment for
her condition.
In June and July 1996, Lori was examined by Dr. Larry
Mudd, a psychiatrist.
Dr. Mudd diagnosed Lori with an anxiety
3
disorder and began to treat her with medication.
In late August
1996, Lori’s symptoms had not abated but continued to worsen, so
she consulted with another internist, Dr. Robert Ellis.
time, Lori’s weight was reported to be 125 pounds.
At this
Having
obtained no medical explanation for her symptoms, Lori saw a
psychologist, Dr. Carroll Macy in September 1996, and consulted
with another psychiatrist, Dr. Karen Head, in October 1996.
In
December 1996, Lori began treatment with yet another
psychiatrist, Dr. Ken Davis.
anxiety.
Dr. Davis also diagnosed Lori with
By December 1996, Lori’s weight was reported to be 117
pounds.
From April 1996 to December 1996, Lori experienced
unexplained weight loss of some twenty pounds.
During this
time, Lori believed that something was physically wrong with
her.
Lori was so fatigued that she could barely get out of bed
and so nauseated that she could hardly eat.
She reported hair
loss, chronic urinary tract infections, and severe chest pains.
In December 1996, Lori discovered two enlarged lymph nodes in
her neck.
She immediately called Dr. Ellis to set up an office
visit.
After examining Lori, Dr. Ellis referred her to Dr.
Janet Chipman for biopsy of the lymph nodes.
revealed adenoma carcinoma.
The biopsy
On February 4, 1997, Lori was
admitted to the hospital, and a repeat biopsy of the lymph nodes
4
was performed.
carcinoma.
The pathology revealed Grade III adenoma
A CAT Scan of the abdomen and pelvis also revealed
extensive adenopathy.
Lori was finally diagnosed with
metastasized gastric (stomach) cancer.
On July 7, 1997, Lori filed a medical malpractice
action against, inter alios, Dr. Kemper and Dr. Ellis.1
Therein,
Lori particularly claimed that Dr. Kemper Afailed to take
reasonable and appropriate steps to make a timely diagnosis of
. . . [her] stomach cancer, thereby allowing the disease to
progress in size, scope and severity.@
Lori died on January 13, 1998, during the pendency of
the action, and the personal representative of her estate was
substituted.
A jury trial ensued.
After the case was submitted
to the jury but before a verdict was reached, appellants and Dr.
Ellis entered into a settlement agreement.
The jury was not
informed of the settlement and eventually returned a verdict in
favor of Dr. Kemper and Dr. Ellis.
On April 3, 2002, the trial
court entered judgment pursuant to the jury verdict and
dismissed all claims against Dr. Kemper.
These appeals follow.
Appeal No. 2002-CA-001983-MR
Appellants raise several issues for our consideration.
We shall begin with the most troublesome issue – whether the
1
The other defendants either settled with Lori or were dismissed from the
action.
5
trial court’s jury instructions were erroneous.
Specifically,
appellants complain of instruction 2, which reads:2
INSTRUCTION NO. 2
It was the duty of defendant, Warren
Kemper, M.D., to use in his care and
treatment of Lori Gordon, that degree of
care and skill which is expected of a
reasonably competent internist, acting under
the same or similar circumstances. Do you
believe from the evidence that Dr. Kemper
failed to use the degree of care imposed
upon him by this Instruction, and that such
failure was a substantial factor in causing
the injury to Lori Gordon about which you
have heard evidence?
During trial, appellants proposed an alternative instruction
that asked the jury to determine whether Dr. Kemper breached the
applicable standard of care and, if so, whether such breach was
a substantial factor in causing Lori to suffer a delay in
diagnosis/treatment.
Juxtaposing instruction 2 and appellants’ proposed
jury instruction, it becomes readily apparent that each
instruction differs in its respective definition of the legally
compensable injury.3
Under instruction 2, the injury was
generally defined as “the injury to Lori Gordon about which you
2
The jury answered “no” to Instruction 2.
3
The elements of a medical malpractice action are generally: (1) duty; (2)
breach of duty; (3) causation; and (4) injury. As the elements of duty,
breach of duty, and causation were merged in jury instruction 2, it is
impossible to determine whether the jury found that Dr. Warren Kemper did not
breach the standard of care or that Dr. Warren Kemper did breach the standard
of care but such breach was not a substantial factor in causing the injury.
6
have heard evidence”; whereas, under appellants’ proposed
instruction, the injury was essentially defined as the failure
to diagnose or treat Lori that resulted in a diminished chance
of survival.
This Commonwealth has yet to recognize a diminished
chance of recovery/survival as a distinct compensable injury in
tort law.4
A growing number of other jurisdictions have done
so,5 and the analytical foundation supporting this growing
4
In this Commonwealth, there has been no published case formally accepting or
rejecting the recognition of a delay in diagnosis/treatment resulting in a
diminished chance of survival as a legally compensable injury. Kemper cites
Walden v. Jones, 439 S.W.2d 571 (Ky. 1968) as authority rejecting such
recognition. In Walden, the Court was concerned with the issue of causation
and, specifically, with whether causation must be proved by evidence
establishing a reasonable probability or mere possibility. The Court held
that “proximate” cause must be established by the reasonably probable
standard. The Court was not called upon and did not decide the issue of
whether the lost chance of recovery should be recognized as a legally
compensable injury in tort law. Accordingly, we view Walden as
distinguishable.
5
The following jurisdictions have adopted the loss-of-chance doctrine in some
form:
• Thompson v. Sun City Community Hospital, Inc., 688 P.2d 605
(Ariz. 1984).
• Sharp v. Kaiser Foundation Health Plan, 710 P.2d 1153
(Colo.App. 1985).
• Borkowski v. Sacheti, 682 A.2d 1095 (Conn.App. 1996).
• Richmond County Hospital Authority v. Dickerson, 356 S.E.2d 548
(Ga.App. 1987).
• Holton v. Memorial Hospital, 679 N.E.2d 1202 (Ill. 1997).
• Cahoon v. Cummings, 734 N.E.2d 535 (Ind. 2000), vacating Cahoon
v. Cummings, 715 N.E.2d 1 (Ind.App. 1999); Mayhue v. Sparkman,
653 N.E.2d 1384 (Ind. 1995).
• DeBurkarte v. Louvar, 393 N.W.2d 131 (Iowa 1986).
• Roberson v. Counselman, 686 P.2d 149 (Kan. 1984).
• Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La.
1986).
• Wollen v. DePaul Health Center, 828 S.W.2d 681 (Mo. 1992).
• Aasheim v. Humberger, 695 P.2d 824 (Mont. 1985).
• Perez v. Las Vegas Medical Center, 805 P.2d 589 (Nev. 1991).
• Lord v. Lovett, 770 A.2d 1103 (N.H. 2001).
• Scafidi v. Seiler, 574 A.2d 398 (N.J. 1990).
7
acceptance is commonly referred to as the “loss-of-chance
doctrine.”
See Joseph H. King, Jr., Causation, Valuation, and
Chance in Personal Injury Torts Involving Preexisting Conditions
and Future Consequences, 90 Yale L.J. 1353 (1981).
The loss-of-chance doctrine was developed in response
to the often harsh results of the traditional “all or nothing
rule.”
See George J. Zilich, Cutting Through The Confusion of
The Loss-of-Chance Doctrine Under Ohio Law:
A New Cause of
Action or A New Standard of Causation?, 50 Clev. St. L. Rev. 673
(2002-2003).
Historically, this Commonwealth has adhered to the
all-or-nothing rule in medical malpractice cases.6
Under the
traditional all-or-nothing rule, plaintiff must prove within a
reasonable probability that defendant’s breach of the standard
of care was a substantial factor in causing the underlying
injury.
As the compensable injury is viewed as the underlying
injury, plaintiff must prove within a reasonable probability
that she would have recovered or survived absent defendant’s
• Alberts v. Schultz, 975 P.2d 1279 (N.M. 1999).
• Kallenberg v. Beth Israel Hospital, 357 N.Y.S.2d 508 (N.Y.
App.Div. 1974).
• Roberts v. Ohio Permanente Medical Group, Inc., 668 N.E.2d 480
(Ohio 1996).
• McKellips v. Saint Francis Hospital, Inc., 741 P.2d 467 (Okla.
1987).
• Hamil v. Bashline, 392 A.2d 1280 (Pa. 1978).
• Herskovits v. Group Health Coop. of Puget Sound, 664 P.2d
474 (Wash. 1983).
• Thornton v. CAMC, Etc., 305 S.E.2d 316 (W.Va. 1983).
• Ehlinger v. Sipes, 454 N.W.2d 754 (Wis. 1990).
6
For a further analysis, refer to Footnote 4. There has yet to be a
published case either rejecting or accepting the loss-of-chance doctrine.
8
negligent conduct.
If plaintiff is unable to prove a reasonable
probability of recovery/survival, she would recover nothing; it
is in these narrow cases that the loss-of-chance doctrine would
be implicated.
Under our interpretation of the loss-of-chance
doctrine, plaintiff is required to prove that defendant’s breach
of the standard of care was a substantial factor in causing a
diminished chance of recovery/survival from the underlying
injury.
See Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980)
(adopting the substantial factor test of Restatement (Second) of
Torts § 431); see also, Pathways, Inc. v. Hammons, 113 S.W.3d 85
(Ky. 2003); Bailey v. North American Refractories Co., 95 S.W.3d
868 (Ky.App. 2001).
Most often, the loss-of-chance doctrine
would be employed where the breach of the standard of care
involved a failure or delay in diagnosis or treatment.
It must
be stated with specificity that the compensable injury is viewed
as the lost chance of recovery/survival.
Under the loss-of-chance doctrine, the substantial
factor test set forth in Restatement (Second) of Torts § 431 is
applied to determine causation.
The substantial factor test is
also utilized in traditional malpractice actions coming under
the all-or-nothing rule; thus, causation remains congruous under
the loss-of-chance doctrine.
The degree of certainty required
to establish causation, likewise, remains the same – “reasonable
9
probability.”
See Walden v. Jones, 439 S.W.2d 571 (Ky. 1968).
Reasonable probability is defined as “more probable than not” or
“more likely than not.”
See 61 Am. Jur. 2d Physicians,
Surgeons, and Other Healers § 332 (2002); George J. Zilich,
Cutting Through The Confusion of The Loss-of-Chance Doctrine
Under Ohio Law:
A New Cause of Action or A New Standard of
Causation?, 50 Clev. St. L. Rev. 673 (2002-2003); Miller v.
Paulson, 97 Ohio App.3d 217, 646 N.E.2d 521 (1994).
From a
statistical viewpoint, we equate reasonable probability with a
greater than 50 percent chance.
See Dalebout v. Union Pac. R.R.
Co., 980 P.2d 1194 (Utah Ct.App. 1999); Fid. & Guaranty Ins.
Underwriters, Inc. v. Gary Douglas Elec., Inc., 48 Ohio App.2d
319, 357 N.E.2d 388 (1974); Shawn M. Nichols, Jorgenson v.
Vener:
The South Dakota Supreme Court Declares Loss-of-Chance
Doctrine as Part of Our Common Law in Medical Malpractice
Torts., 46 S.D. L. Rev. 618 (2000-2001).
The sole distinction between the traditional all-ornothing rule and the loss-of-chance doctrine is the compensable
injury.
Under the all-or-nothing rule, the compensable injury
is viewed as the underlying injury; by contrast, under the lossof-chance doctrine, the compensable injury is viewed as the lost
opportunity of recovery/survival from the underlying injury.7
7
For example, the all-or-nothing rule would require a plaintiff/patient to
prove that defendant’s/physician’s negligence caused the loss of the
patient’s eye; under the loss-of-chance doctrine, a plaintiff would be
10
Although the traditional all-or-nothing rule and the
loss-of-chance doctrine are similar, the right of recovery is
vastly different.
For example, a patient suffering from a
potentially terminal illness alleges that the physician failed
to timely diagnose and treat that illness.
Expert medical
testimony uncontrovertibly established that the physician’s
failure to timely diagnose and treat the illness was a breach of
the standard of care.
The medical evidence also established it
was more probable than not that the breach of the standard of
care caused a lost chance of survival.
Specifically, the
patient had a 45 percent chance of survival at the time the
physician negligently failed to diagnose the illness.
Later,
when the illness was properly diagnosed, the patient’s chance of
survival diminished to only 15 percent.8
The patient eventually
died as a result of the illness.
Under the traditional all-or-nothing rule, the patient
would recover nothing as it could not be shown within a
reasonable probability that the physician’s failure to diagnose
caused the patient’s death.
Conversely, under the loss-of-
chance doctrine, the patient could recover for the lost chance
required to prove that defendant’s negligence caused the plaintiff to suffer
a diminished chance of saving the eye.
8
We note that if the patient had a greater than 50 percent chance of survival
at the time the physician negligently failed to diagnose the illness the
patient would recover under the traditional all-or-nothing rule and the lossof-chance doctrine would be inapplicable.
11
of survival on a proportional basis.
As the medical evidence
proved within a reasonable probability that the physician’s
failure to diagnose caused a 30 percent diminished chance of
survival, the patient could recover damages proportionate to
that 30 percent lost chance of survival.
If the patient’s total
damages were $100,000.00, the patient would recover 30 percent
of that amount, or $30,000.00.
The above example highlights the public policy reasons
supporting the legal recognition of the lost chance of
recovery/survival as a distinct compensable injury in tort law.
Such recognition would allow proportionate recovery for a
patient whose opportunity to recover/survive had been diminished
by the negligence of a medical professional.
A proportionate
recovery would better comport with traditional notions of fair
play and justice, than the all-or-nothing rule that would leave
the patient without a remedy.
In deciding whether to adopt the loss-of-chance
doctrine, we are also guided by the Kentucky Supreme Court’s
decision in Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984).9
In
Davis, the Supreme Court recognized the right to recovery for an
“increased risk of future harm.”
Id. at 930.
There exist
striking similarities between recovery for an increased risk of
9
We note that Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984) was overruled on
other grounds by Sand Hill Energy, Inc. v. Ford Motor Co., 83 S.W.3d 483 (Ky.
2002). Thereafter, Sand Hill was vacated by Ford Motor Co. v. Smith, 538
U.S. 1028, 123 S. Ct. 2072, 155 L. Ed. 2d 1056 (2003).
12
future harm and for a lost chance of survival.
Indeed, it has
been observed that “because the increased risk analysis is so
similar to the loss of chance doctrine, some scholars see the
former merely as an extension of the latter.”
v. Evanston Hospital:
Kira Elert Dillon
Illinois Adopts The New Increased Risk
Doctrine Governing Recovery For Future Injury, 34 Loy. U. Chi.
L.J. 685, 715 (2003).
As the Supreme Court has already signaled
its intent to permit recovery for an increased risk of future
harm, we believe it would, likewise, be inclined to permit
recovery for a lost chance of recovery/survival.
Accordingly, we now hold that a lost chance of
recovery/survival should be recognized as a legally compensable
injury in medical malpractice cases where the chance of
recovery/survival is 50 percent or less before the negligent act
or omission.
In cases where the chance of recovery/survival was
greater than 50 percent, the traditional all-or-nothing approach
would apply and the compensable injury would still be viewed as
the underlying injury.
To maintain an action for a lost chance of
recovery/survival, plaintiff must still prove that defendant
breached the applicable standard of care and that such breach
was a substantial factor in causing a diminished chance of
recovery/survival from the underlying disease or injury.
Plaintiff must present evidence proving causation by a
13
reasonable probability and establishing the chance of
recovery/survival was 50 percent or less before the negligent
act or omission.10
Evidence establishing causation or
plaintiff’s chance of recovery/survival need not be expressed in
terms of percentages; this is a question for the jury.
Where the evidence warrants submission both as a
traditional malpractice action under the all-or-nothing rule and
as a malpractice action under the loss-of-chance doctrine,11 the
jury may be instructed pursuant to the following model
instructions:
1.
It was the duty of [physician’s name]
to use, in his care and treatment of
[patient’s name], that degree and skill
which is expected of a reasonably competent
[physician’s specialty] acting under the
circumstances. Do you believe from the
evidence that [physician’s name] failed to
use the degree of care imposed by this
instruction?
_______ Yes
_______ No
If you answer the above instruction in the
affirmative, proceed to Instruction 2. If
10
If plaintiff’s chance of survival/recovery was greater than 50 percent
before the negligent act or omission, the case would not come within the
purview of the loss-of-chance doctrine but rather would come within the ambit
of the all-or-nothing rule and proceed as a traditional malpractice action.
11
This would necessarily be a case where there was conflicting evidence as to
plaintiff’s chance of recovery/survival. For example, there was expert
medical testimony that plaintiff’s chance of recovery/survival was greater
than 50 percent when the physician negligently failed to diagnose/treat, and
there also was expert medical testimony that plaintiff’s chance of
recovery/survival was less than 50 percent when the physician negligently
failed to diagnose/treat.
14
you answer the above instruction in the
negative, you shall find in favor of
[physician’s name].
2. Do you believe from the evidence that
[physician’s name] failure to exercise
reasonable care was a substantial factor in
causing [patient’s name] [injury or death].
______ Yes
______ No
If you answer the above instruction in the
affirmative, you shall find in favor of
[patient’s name] and proceed to Instruction
___ [damage instruction]. If you answer the
above instruction in the negative, proceed
to Instruction 3.
3.
Do you believe from the evidence that
[physician’s name] failure to exercise
reasonable care was a substantial factor in
causing [patient’s name] to suffer a lost
chance of recovery or survival from the
underlying [disease or injury]. For
purposes of this instruction, a lost chance
of recovery or survival is defined as a 50
percent or less chance of recovery or
survival at the time [physician’s name]
failed to exercise reasonable care in his
treatment of [patient’s name].
______ Yes
______ No
If you answer the above instruction in the
affirmative, proceed to Instruction 4. If
you answer the above instruction in the
negative, you shall find in favor of
[physician’s name].
4. What do you find, in terms of a
percentage, represents [patient’s name]
chance of recovery or survival, at time of
[physician’s name] failure to exercise
15
reasonable care in his treatment of
[patient’s name]. The percentage you find
cannot be greater than 50 percent.
______ % (50 percent or less)
Proceed to Instruction 5.
5. What do you find, in terms of a
percentage, represents [patient’s name]
chance of recovery or survival at the time
she was properly diagnosed and treated?
______ %
[Patient’s name] lost chance of recovery or
survival will be determined by subtracting
the percentage you find under Instruction 5
from the percentage you find under
Instruction 4. The Judge then will
determine [patient’s name] award by
multiplying the total amount you determine
as damages by the percentage previously
determined to represent the lost chance of
recovery or survival (subtracting the
percentage under Instruction 5 from the
percentage under Instruction 4).
The next instruction will ask the jury to fix the amount of
total damages plaintiff suffered.
This instruction will be the
traditional medical malpractice instruction upon damages.
In summation, to recover under the loss-of-chance
doctrine, the jury must find that the physician breached the
standard of care under Instruction 1, and that such breach was
not a substantial factor in causing the underlying injury under
Instruction 2.12
If the jury finds that the physician’s breach
12
Instruction 2 would only be given when the evidence also warranted
submission as a traditional medical malpractice claim. Where the evidence
16
of the standard of care caused the underlying injury, plaintiff
would be entitled to damages ordinarily recoverable in a
traditional malpractice action.
However, if the jury finds that
such breach was not a substantial factor in causing the
underlying injury, the jury may then consider whether such
breach caused a lost chance of recovery/survival13 under
Instruction 3 and fix the exact percentage representing that
lost chance under Instructions 4 and 5.
The judge will then
determine the amount of damages by multiplying the total damages
by the percentage representing the lost chance of survival.
We thus conclude that it was reversible error not to
instruct the jury upon Lori’s lost chance of survival.
Upon
remand, the jury should be instructed under the above model
instructions with the omission of Instruction 2.
Instruction 2
essentially asks the jury whether Dr. Kemper’s failure to
exercise reasonable care was a substantial factor in causing
Lori’s injury.
The jury was previously so instructed and
answered in the negative.
As we view appellants’ specific
allegations of error regarding the trial proceedings to be
without merit, appellants are not entitled to retry whether Dr.
Kemper’s negligence caused the underlying injury.
warrants submission solely under the loss-of-chance doctrine, the above model
instructions would still be applicable except Instruction 2 would be omitted.
13
We emphasize that the lost chance of recovery/survival is defined as a 50
percent or less chance of recovery/survival at the time the physician failed
to exercise reasonable care in his treatment of plaintiff.
17
As to appellants’ remaining issues, we view them to be
without merit.
Accordingly, we are of the opinion that appellants are
entitled to a new trial upon the narrow issue of whether Dr.
Kemper negligently failed to diagnose or treat Lori and whether
such failure caused Lori to suffer a lost chance of survival.
The jury should be instructed under the above model instructions
with the exception of Instruction 2.
CROSS-APPEAL NO. 2002-CA-002043-MR
Dr. Kemper pursues what is commonly described as a
“protective” cross-appeal.
A protective cross-appeal is
generally limited to legal issues that would arise if the
judgment appealed from was reversed and remanded.
See Michael E. Tigar & Jane B. Tigar, Federal Appeals
Jurisdiction and Practice, § 6:10 (3d ed. 2003).
On cross-
appeal, Dr. Kemper raises the issue of whether the trial court
should have excluded certain testimony of Dr. Ellis’s expert
witness, Dr. Peter L. Thurman.
As Dr. Ellis settled with Lori,
it is impossible for this precise issue to be raised again upon
retrial.
The law in this Commonwealth is clear that “[w]e may
not render advisory opinions concerning moot or hypothetical
issues.”
2003).
Commonwealth v. Deweese, 141 S.W.3d 372, 375 (Ky.App.
As Dr. Ellis is no longer a party, we conclude that any
18
opinion upon the issue of Dr. Thurman’s testimony would be
merely advisory.
The Court hereby, sua sponte, ORDERS Cross-Appeal No.
2002-CA-002043-MR DISMISSED.
For the foregoing reasons, Appeal No. 2002-CA-001983MR is affirmed in part and reversed and remanded in part for
proceedings consistent with this opinion; Cross-Appeal No. 2002CA-002043-MR is dismissed.
ALL CONCUR.
ENTERED:
March 25, 2005
BRIEFS AND ORAL ARGUMENT FOR
APPELLANT:
Ann B. Oldfather
Lea A. Player
OLDFATHER & MORRIS
Louisville, Kentucky
/s/ Jeff S. Taylor
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLEE:
C. Thomas Hectus
Randall S. Strause
HECTUS & STRAUSE, PLLC
Louisville, Kentucky
ORAL ARGUMENT FOR APPELLANT:
ORAL ARGUMENT FOR APPELLEE:
Ann B. Oldfather
OLDFATHER & MORRIS
Louisville, Kentucky
C. Thomas Hectus
HECTUS & STRAUSE, PLLC
Louisville, Kentucky
19
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