MARY BRECKINRIDGE HEALTHCARE, INC. , ET AL. VS. ELDRIDGE (SYLVANIA), ET AL.Annotate this Case
RENDERED: DECEMBER 31, 2008; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
MARY BRECKINRIDGE HEALTHCARE, INC.
AND BETTY JOHNSON, R.N.
APPEAL FROM LESLIE CIRCUIT COURT
HONORABLE R. CLETUS MARICLE, JUDGE
ACTION NO. 04-CI-00256
SYLVANIA ELDRIDGE, INDIVIDUALLY,
AND AS ADMINISTRATRIX OF THE ESTATE
OF IRA ELDRIDGE
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; CAPERTON AND MOORE, JUDGES.
CAPERTON, JUDGE: This case is appealed to our court from the Leslie Circuit
Court wherein the court entered judgment for plaintiff below, Appellee herein, for
injuries received as a result of the negligence of defendant below, Appellant
herein. After a thorough review of the record, we affirm.
Ira Eldridge was injured and required medical treatment. Eldridge
was admitted to the hospital, a Groshong catheter1 was implanted in the right
atrium of his heart, and he was then discharged and placed under the care of Mary
Breckinridge Home Healthcare. Nurse Betty Johnson, an employee of Mary
Breckinridge Home Healthcare, was assigned to Eldridge for his home health care
needs. Nurse Johnson trained Eldridge and his wife, Sylvania, in the use of the
Groshong catheter. All went well until October 17, 2003, the events of which give
rise to the case now before us.
On October 17, 2003, Nurse Johnson made two visits to the home of
Eldridge. On the first visit, at approximately 10:20 a.m., Nurse Johnson changed
the dressing at the catheter site as normal with the exception of using scissors to
assist in changing the dressing. Subsequently, a leak developed at the catheter site
and medication leaked from the catheter onto the chest of Eldridge. Eldridge
called Mary Breckinridge Home Healthcare and reported the leak. This required a
second visit by Nurse Johnson. The second visit was at approximately 4:35 p.m.
The health care records show that upon Nurse Johnson’s arrival that
Eldridge’s vital signs were normal.2 Nurse Johnson’s health care notes state she
The catheter was to allow the administration of IV antibiotics to treat infection arising from
Testimony from Nurse Johnson is limited in that she has no independent memory of the events
that afternoon and had to rely entirely upon her health care notes.
changed the dressing at the catheter site. However, according to the testimony of
Mr. Mullins, a witness present during her second visit, she also attempted to
manipulate the catheter by pulling and tugging on it.
Before Nurse Johnson completed her 30 minute visit, Eldridge’s
condition was such that Nurse Johnson recommended Eldridge go to the hospital.
Eldridge refused Nurse Johnson’s offer to call for an ambulance, but rather insisted
upon driving himself to the hospital, and called Sylvania to advise her of his
condition and the trip to the hospital.
Sylvania testified that during that phone conversation with Eldridge
that he was nervous, had problems breathing, and was coughing. Eldridge left his
home and Sylvania testified she met Eldridge on the way to the hospital, at which
time he looked scared, was excited and had trouble breathing. Sylvania assumed
the transport of Eldridge, and Eldridge told her of the events during the second
Sylvania testified that Eldridge said during the second visit Nurse
Johnson tried to manipulate the tubing to correct the problem, taped over the hole
in the tubing created when she previously cut the tubing on the first visit, and kept
trying to clear the tubing by flushing it. Again, Nurse Johnson has no independent
recollection of any events surrounding the second visit. On their way to the
hospital, Sylvania testified that Eldridge was quivering, coughing, leaning, and
ultimately lost consciousness. Upon arrival at the emergency room, Sylvania
relayed the statements made by Eldridge to the doctors, who included the
statements in their emergency room notes. Eldridge never regained consciousness
and died the next day.
The emergency room doctors and treating physicians testified that the
catheter was dislodged and ultimately found under the right clavicle instead of in
the right atrium of the heart, that a crack was in the catheter and an attempt had
been made to tape over the crack, that there were clot formations (thromboses)
along the catheter tubing and that upon aspiration the catheter returned air.
The experts of Eldridge and Breckinridge presented different theories
to the court as to the cause of death of Eldridge. Eldridge’s expert relied solely on
the statements made by Eldridge, as repeated to the emergency room doctor by
Sylvania, to form his opinion as to the cause of death. It is these statements that
are at issue in this appeal.
We review a trial court's ruling regarding the admission or exclusion
of evidence for abuse of discretion. See Clephas v. Garlock, Inc., 168 S.W.3d 389,
393 (Ky.App. 2004); Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575,
577 (Ky. 2000); Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
“The test for abuse of discretion is whether the trial judge's decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire
and Rubber Co. at 581, citing English at 945.
The decisions of the trial court as to findings of fact in a trial without
a jury, including such factual findings that serve as a basis for the admission of
evidence, “shall not be set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility of the witnesses.”
CR 52.01. See also Lawson v. Loid, 896 S.W.2d 1, 3 (Ky. 1995); A & A
Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky.App.
1999). A factual finding is not clearly erroneous if it is supported by substantial
evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky.2003); Owens-Corning
Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.App.1998); Uninsured
Employers' Fund v. Garland, 805 S.W.2d 116, 117 (Ky.1991). Substantial
evidence is “[e]vidence that a reasonable mind would accept as adequate to support
a conclusion and evidence that, when taken alone or in the light of all the evidence
. . . has sufficient probative value to induce conviction in the minds of reasonable
men.” Moore at 354. (internal citations omitted).
Lastly, we have long held that we will uphold a correct result of the
trial court even if reached for the wrong reason. McBeath v. Commonwealth, 244
S.W.3d 22, 38 (Ky.2007) (citing Commonwealth v. Fields, 194 S.W.3d 255
The crux as to admissibility into evidence of the statements from
Eldridge to Sylvania lies with whether they are properly within a recognized
exception to KRE 802.3 Their admissibility will now be considered under the
various arguments of the parties.
The hearsay exclusionary rule.
The arguments presented by counsel for the parties all agree that the
operative rule is KRE 803.4 Eldridge argues the statements should be admitted as
statements necessary for medical treatment (KRE 803(4)), business records (KRE
803(6)), state of mind (KRE 803(3)), excited utterances (KRE 803(2)), and/or
present sense impressions (KRE 803(1)). In opposition, Breckinridge argues that
the statements should be excluded as inadmissible hearsay pursuant to KRE 801(c)
(the definition of hearsay), which we believe is more properly considered under
KRE 802 (the hearsay exclusionary rule). Further, Breckinridge argues that no
theory presented by Eldridge can be the basis to admit the statements.
In discussing the arguments of the parties, we will first address the
argument by Breckinridge that the mere inclusion of statements in medical records
does not make inadmissible evidence admissible. Johnson v. Commonwealth, 864
S.W.2d 266 (Ky. 1993). Breckinridge correctly cites Johnson for the proposition
that the mere repetition by Sylvania of Eldridge’s statements to the treating
physician does make them admissible as statements necessary for medical
treatment under KRE 803(4). While this is true, an argument in favor of their
admission may not be so easily dismissed if they are properly within another
hearsay exception. See KRE 805.
The arguments presented by the parties under KRE 803(4) (hearsay
exception for statements made for the purpose of medical treatment), and KRE
803(6) (business records exception), will be considered together.
Kentucky Rules of Evidence hearsay exceptions.
No one would contest the admissibility of the statements if Eldridge
had made them directly to the treating physician, as they would have been squarely
within KRE 803(4) and therefore admissible. Nor would there be challenge to the
testimony by Eldridge’s widow based on her observations of Eldridge, as these
would not be hearsay but testimony of the observation of a witness. Lastly, it has
been oft recognized that hospital records are admissible as business records and
they, when properly certified pursuant to KRS 422.300 to 422.330, have their own
exceptions for purposes of authentication under either KRE 902(11) or KRE
902(10) (See Lawson, Kentucky Evidence Law Handbook, Fourth Edition, §7.15)
and as an exception to hearsay under KRE 803(6)(A).
The issue then becomes whether or not the statements by Sylvania, as
Eldridge’s widow, repeating what Eldridge told her on the way to the hospital
would be admissible. These statements were subsequently made to the treating
physician at the hospital by Sylvania for purposes of diagnosis and treatment of
The issue of a third-party relating the statements of an injured person
to a treating physician has been considered by our Supreme Court. In Miller v.
Watts, 436 S.W.2d 515, (Ky.1969), our Supreme Court reaffirmed Commonwealth,
Division of Forestry, Department of Conservation v. Farler, 391 S.W.2d 371
(Ky.1965), in recognizing that it “held that a patient's history related to a treating
doctor by a member of the patient's family was admissible.” In fact, Miller at 571
expanded the holding in Farler by reasoning that:
If an adult may relate history to his treating doctor, so as
to make that doctor competent to testify, it seems plain
that history related to a treating doctor by a parent,
custodian, guardian, or nurse of an infant of tender years
must also be admissible. The same reason which makes
this type of evidence an exception to the hearsay rule, as
regards adults, is applicable with respect to infants. The
law reckons that an individual seeking medical relief will
speak the truth to his treating doctor-how much more will
the law reckon that an anxious and loving mother will
speak the truth to a doctor to whom she has entrusted the
treatment of her infant child.
We see no reason in the case sub judice to bar the statements of Sylvania which
repeated the statements of Eldridge to the emergency room doctors for the purpose
of medical diagnosis and treatment. Further, while KRE 803(6) is itself an
exception to the hearsay rule, statements contained in the medical record are
properly admitted if they fit within an exception to the hearsay rule. KRE 805.
Therefore, the trial court was correct in admitting, as part of the medical record, the
statements of Eldridge’s widow under the KRE 803(4) and Miller.
We now consider the arguments made by Eldridge’s estate and
Breckinridge under KRE 803(3), referenced as the state of mind exception. This
requires a quick review of the rule. KRE 803(3) provides:
Then existing mental, emotional, or physical condition. A
statement of the declarant’s then existing state of mind,
emotion, sensation, or physical condition (such as intent,
plan, motive, design, mental feeling, pain, and bodily
health), but not including a statement of memory or
belief to prove the fact remembered or believed unless it
relates to the execution, revocation, identification, or
terms of declarant's will.
The statements by Eldridge, while concerning his pain and bodily health, as well as
his motive for going to the hospital, cannot be used by his estate to prove
Eldridge’s belief or memory of the fact remembered or believed. To explain, such
statements would be admissible for the limited purpose of explaining Eldridge’s
belief as to why he went to the hospital, but not for the purpose of proving that his
beliefs, or memory thereof, were factually true. See Ernst v. Commonwealth, 160
S.W.3d 744 (Ky. 2005); Crowe v. Commonwealth, 38 S.W.3d 379 (Ky. 2001).
Such limited purpose is of no avail to Eldridge’s estate and, therefore, the
statements are properly excluded as not within this exception. To the extent the
trial court held otherwise was error.
We now consider the admissibility of the statements under KRE
803(2) as an excited utterance. Eldridge’s estate argues, correctly, that Eldridge’s
statements to Sylvania were excited utterances. KRE 803(2) provides that an
excited utterance is “[a] statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the event or
Breckinridge cites Smith v. Commonwealth, 788 S.W.2d 266 (Ky.
1990), for the proposition that an excited utterance must be made while under
stress from nervous excitement and not after reflection or deliberation. In Smith,
our Supreme Court found that a lapse of 26 minutes between the event that
generated the excitement and the utterance was hardly adequate for the declarant to
regain composure and fabricate an answer.
The admission of a statement by a declarant as an excited utterance
turns upon the degree of excitement generated by an event and the time and
opportunity for declarant to regain composure in order to fabricate an answer
before communication to another. As applied to the facts sub judice, we must start
with the events earlier in the day at the time of the first visit by Nurse Johnson.
The first visit was routine but for the alleged puncture of the
Groshong catheter by the actions of Nurse Johnson. Such actions were certainly a
breach of duty, as found by the trial court, and resulted from Nurse Johnson
inappropriately using scissors around the catheter site. Regardless, that breach, in
and of itself, had little if any effect on the death of Eldridge.5 It did, however, have
an effect on Eldridge’s composure and state of mind. Eldridge was concerned
about the leaking of the catheter and immediately sent his companion to intercept
the departure of Nurse Johnson so that she might correct the situation. Such efforts
were to no avail as Nurse Johnson had departed and would not return for several
hours. These events were certainly exciting but, taken together, hardly rise to the
level necessary to support the admission of an excited utterance.
Eldridge then communicated with the hospital requesting the return of
Nurse Johnson to correct the leaking catheter. Upon Nurse Johnson’s return, she
examined the catheter, discovered it was thrombosed,6 and attempted to clear the
obstructed catheter by flushing it multiple times. This led to immediate health
However, when it was combined with the events of the second visit by Nurse Johnson, such
apparently became the cause of death.
Thrombosed is a medical term for obstructed.
complications, which were manifested as shortness of breath, nervousness, labored
breathing, and onset of chest pain. Thereupon, Nurse Johnson advised Eldridge of
the need to go to the hospital.
Breckinridge points to the statements of Mr. Miller, companion to
Eldridge and present at the time of both visits by Nurse Johnson, that Eldridge was
not excited, collected items necessary for his visit to the hospital, called his wife to
tell her of his anticipated trip to the hospital, and ultimately met his wife to
complete the transport.
Eldridge’s estate, to the contrary, offers Sylvania’s testimony. First,
Sylvania testified that while she was on the telephone with Eldridge, he was
nervous, had problems breathing, and was coughing. Second, when Eldridge met
Sylvania, while Eldridge did relate facts concerning the visit by Nurse Johnson
earlier in the day,7 he also related the more recent events of the second visit. The
second visit occurred approximately 30 minutes before Eldridge met Sylvania and
told her of Nurse Johnson’s attempts to clear the catheter and the fact that such
It is these latter comments, combined with the testimony of Nurse
Johnson, which are of concern in that Eldridge’s expert, Dr. Liebert, testified that
the breach of the catheter allowed air to enter the catheter tubing which was then
Nurse Johnson earlier in the day had used scissors around the Groshong catheter site, cut the
catheter tubing, Eldridge’s clothing became wet, and such necessitated a second visit by Nurse
The attempts of Nurse Johnson to clear the catheter were also testified to by Mr. Miller.
flushed into Eldridge’s venous system resulting in an air embolism which caused
the death of Eldridge. Nurse Johnson testified that upon discovering the leak in the
catheter, she should have done nothing and called the doctor, which is in stark
contrast to the actions she undertook trying to clear the catheter.9
While the leaking of the catheter, however it resulted, set the stage for
the introduction of air into Eldridge’s venous system, it was not until Nurse
Johnson’s second visit, during which she attempted to flush the catheter, that
Eldridge developed the resultant symptoms,10 which ultimately generated the
excitement. It is the relating of the events of the second visit under the excitement
resulting from the symptoms that provide the basis for admitting the statements of
Eldridge to Sylvania only minutes later.
While we agree with Breckinridge that outward manifestations of
excitement can be a consideration in admitting evidence under the excited
utterance exception, we do not agree that such manifestations are dispositive, for
we must look to the circumstances that generated the excitement. In short, the
mere fact an individual may appear calm does not mean that he is not in mental
turmoil and “excited,” nor that his capacity for reflection and deliberation is not
“stilled.” The excitement stilling the capacity for reflection and deliberation is the
basis for the application of KRE 803(2). Mounce v. Commonwealth, 795 S.W.2d
The trial court found that Nurse Johnson’s actions trying to clear the catheter resulted in air
being flushed into Eldridge’s venous system.
Labored breathing, shortness of breath, nervousness and onset of chest pain.
375, 379 (Ky.1990). See also Preston v. Commonwealth, 406 S.W.2d 398, 401
(Ky.1966), (quoting 6 J. Wigmore on Evidence, § 1747 at 136 (1976)).
The evidence before that trial court as to the level of stress and
excitement of Eldridge was certainly controverted. It was for the trial court to
determine which facts were to be believed and whether they supported the level of
excitement necessary for application of KRS 803(2). On appeal, we review the
facts found by the trial court under a clearly erroneous standard. Then we evaluate
whether the court’s decision to admit the evidence on the basis of those facts
exceeded its discretion. CR 52.01, A &A Mechanical at 509; Garlock at 393,
Goodyear Tire and Rubber Co. at 577, English at 945. Having done so, we find
that the factual findings of the trial court were not clearly erroneous and that it did
not abuse its discretion in admitting the statements as excited utterances based on
Lastly we consider whether the statements in question would be
admissible under KRE 803(1), the present sense impression exception to the
hearsay rule. KRE 803(1) states that “[a] statement describing or explaining an
event or condition made while the declarant was perceiving the event or condition,
or immediately thereafter.” It is uncontroverted that the statements which were
made by Eldridge to Sylvania did not occur while perceiving the event. Thus, the
question of admission becomes one of whether the statements were within the
“immediately thereafter” period.
The admission of the statements would appear questionable under our
case law. Fields v. Commonwealth, 12 S.W.3d 275 (Ky. 2000); Young v.
Commonwealth, 50 S.W.3d 148 (Ky. 2001). Regardless, our decision that the
evidence would be admissible under either KRE 803(4) and Miller or KRE 803(2)
makes further analysis under KRE 803(1) (present sense impression) superfluous.
The judgment of the Leslie Circuit Court, Hon. Cletus Miracle, Judge,
is hereby affirmed.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEES:
Griffin Terry Sumner
Kenneth J. Tuggle
William T. Donnell
BRIEF OF THE INTERVENING
W. Barry Lewis