HILL-FERDINANDO (BOBBIE), ET AL. VS. EMERGENCY CARE PHYSICIANS OF NORTHERN KENTUCKY, P.S.C. , ET AL.Annotate this Case
RENDERED: AUGUST 15, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
BOBBIE HILL-FERDINANDO, INDIVIDUALLY
AND AS ADMINISTRATRIX OF THE ESTATE
OF DUDLEY JOHN MICHAEL FERDINANDO, III
AND WAYNE D. FERDINANDO
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE KEVIN M. HORNE, SENIOR JUDGE
ACTION NO. 02-CI-01612
EMERGENCY CARE PHYSICIANS OF
NORTHERN KENTUCKY, P.S.C. AND
AFFIRMING IN PART, REVERSING IN PART,
** ** ** ** **
BEFORE: FORMTEXT CLAYTON AND TAYLOR, JUDGES; HENRY,1
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
TAYLOR, JUDGE: Bobbie Hill-Ferninando, individually and as Administratrix of
the Estate of Dudley John Michael Ferdinando, III and Wayne D. Ferdinando bring
this appeal from a May 29, 2007, judgment of the Boone Circuit Court
apportioning liability for the wrongful death of Bobbie and Wayne’s child. We
affirm in part, reverse in part, and remand.
On the evening of November 13, 2001, twenty-three month old
Dudley John Michael Ferdinando, III (Johnny) arrived by ambulance at St. Luke
Hospital West at approximately 8:30 p.m. Johnny was accompanied by his
mother, Bobbie. Bobbie reported to emergency personnel that Johnny had
apparently ingested three to four 20 mg OxyContin pills between 7:30 p.m. and
8:00 p.m. Bobbie believed Johnny took the pills after she went upstairs in her
home to take a nap with her twin girls while Johnny’s father, Wayne, was
answering a sales call at the front door.
Approximately twenty minutes after Johnny’s arrival at the hospital,
and less than one hour after the suspected ingestion, Dr. Timothy Love examined
Johnny. Johnny’s medical record reveals Love ordered Johnny be given charcoal,
his vital signs be taken every hour, and his urine be collected for a drug screen.
Johnny was given the charcoal and vomited thereafter. His vital signs remained
stable. No urine was collected. After being informed that Johnny would be
discharged, Bobbie woke Johnny to dress him; thereafter, Johnny immediately fell
back to sleep. Bobbie and Johnny left St. Luke Hospital around midnight. Upon
arriving home from the hospital, Johnny slept with Bobbie and Wayne.
The next morning on November 14, 2001, Bobbie awoke around 7:30
a.m., and Johnny appeared to be sleeping. She did not attempt to wake him. After
taking the twins to school, Bobbie returned home and went back to bed with
Johnny and Wayne. When the twins arrived home from preschool around 11:30
a.m., they asked to see Johnny.2 When Wayne attempted to wake Johnny, he
discovered that Johnny was lifeless and his eyes were rolled back in his head.
Bobbie immediately took Johnny back to St. Luke’s emergency room.
Upon Johnny’s arrival at the hospital, the emergency room doctor
administered Narcan and attempted to stabilize Johnny by intubating him. Johnny
was resuscitated and placed on a ventilator. Johnny passed away four days later on
November 18, 2001, when the ventilator was removed.
Bobbie Hill-Ferdinando, individually and as Administratrix of the
Estate of Dudley John Michael Ferdinando, III and Wayne D. Ferdinando
(collectively referred to as appellants) subsequently filed a complaint in 2002 in
the Boone Circuit Court against, inter alios, Dr. Timothy Love, alleging medical
negligence. Following a jury trial in 2007 that lasted nine days, a verdict was
returned finding that Love had been negligent in the care and treatment of Johnny
and that such negligence was a substantial factor in causing Johnny’s death. The
jury also found that Bobbie and Wayne had been comparatively negligent and
failed to exercise ordinary care for the safety and protection of Johnny. The jury
It was not unusual for Dudley John Michael Ferdinando, III (Johnny) to still be sleeping when
the twins arrived home from preschool around 11:30 a.m., as Johnny normally slept with his
father Wayne D. Ferdinando as late as noon each day.
assigned comparative fault as follows: 20% to Love, 50% to Bobbie, and 30% to
Wayne. The jury ultimately awarded the following: $33,047.09 in medical
expenses, $1,000 in funeral expenses, $150,000 for Bobbie’s loss of affection and
companionship, $150,000 for Wayne’s loss of affection and companionship, and
“0” for the destruction of Johnny’s earning capacity.3
Appellants timely filed a motion pursuant to Kentucky Rules of Civil
Procedure (CR) 50.02 for judgment notwithstanding the verdict and a motion
pursuant to CR 59.01 for a new trial citing as error the jury’s award of “0” dollars
for destruction of Johnny’s earning capacity. The circuit court denied both
motions. This appeal follows.
Appellants first contend that the circuit court erred by failing to grant
their motion for a new trial on the issue of the jury’s verdict of “0” dollars for
destruction of Johnny’s earning capacity. Our review of the circuit court’s denial
of the motion for a new trial based upon inadequacy of damages is limited to
whether the denial was clearly erroneous. Bayless v. Boyer, 180 S.W.3d 439 (Ky.
2005). Specifically, appellants assert that the jury’s award of “0” dollars for
destruction of Johnny’s earning capacity was contrary to the Supreme Court’s
holding in Turfway Park Racing Association v. Griffin, 834 S.W.2d 667 (Ky. 1992)
and that a new trial upon damages is mandated. We view Turfway as dispositive.
The judgment of $334,047.09 was reduced by application of comparative fault, and appellants
were ultimately awarded $66,809.41.
In Turfway, the Court was faced with facts very similar to those now
presented. See id. A four-year-old child fell from a stairway at Turfway Park and
subsequently died. The administratrix of the child’s estate and his parents brought
suit against Turfway. The jury ultimately awarded damages for medical expenses,
funeral expenses, and pain and suffering. However, the jury returned a verdict of
“0” dollars for destruction of decedent’s power to earn money. The Supreme
Court ultimately concluded that damages naturally flow from wrongful death and
“unless there is evidence from which the jury could reasonably believe that the
decedent possessed no power to earn money” an award of “0” dollars is improper.
Id. at 671. The Turfway Court ultimately held that a new trial upon damages was
necessary. Id. The Court directed that upon retrial the jury shall only be instructed
upon the destruction of decedent’s power to earn money and shall also be informed
of the other damage awards.
In the case sub judice, the jury awarded appellants damages for
medical expenses, funeral expenses, and loss of affection and companionship.
However, the jury awarded “0” dollars for the destruction of Johnny’s earning
capacity. Although such a verdict would seem contrary to the holding of Turfway,
appellees argue that the verdict of “0” dollars for destruction of Johnny’s earning
capacity was proper under Turfway. See id. Appellees contend that under Turfway
an award of “0” dollars for decedent’s power to earn money is proper if there
existed “evidence from which the jury could reasonably believe that the decedent
possessed no power to earn money.” Id. at 671. Appellees maintain that there was
evidence introduced at trial from which the jury could have reasonably found that
Johnny possessed no power to earn money. Appellees point to Johnny’s medical
history and specifically to a seizure disorder, a nonspecific lung disorder, and
asthma. Appellees also submit that Bobbie and Wayne’s negligence prompted this
jury to question “whether this child would be sufficiently protected by them for the
remainder of his minority so as to arrive at an age where he might begin to earn a
living.” Appellees’ Brief at 11. As such, appellees believe that the jury verdict of
“0” dollars for Johnny’s loss of earning power was authorized under Turfway; thus,
appellees argue that the circuit court’s denial of the motion for a new trial was
proper. See id.
There was certainly evidence presented in this case regarding
Johnny’s medical history prior to his ingestion of the OxyContin. Johnny’s
pediatrician, Dr. Michael Fiedler, testified that Johnny had a possible seizure
disorder and a nonspecific lung disorder, which had resolved. Fiedler also
testified, that Johnny had not had a seizure during the nine months he had been
treating Johnny and that Johnny was no longer on any medication for seizure
disorder. Feidler further testified that Johnny had asthma and was on medication
for its treatment. Fiedler testified that he had recently seen Johnny for treatment of
a viral illness, allergic rash, ear infection, sore throat and croup. However, what
was clearly absent from the evidence presented was evidence from which the jury
could reasonably believe that Johnny possessed no power to earn money or that
Johnny possessed a disability so profound as to render him incapable of earning
money upon reaching adulthood. In the absence of such evidence, an award of “0”
dollars for destruction of Johnny’s earning capacity was simply error under
Turfway. See id. As such, we conclude that the circuit court’s denial of
appellants’ motion for a new trial upon the damage award for destruction of
earning capacity was error. Upon remand, the court shall conduct a retrial in
conformity with the mandates of Turfway. See id. Both parties shall be allowed to
present evidence as to the destruction of Johnny’s earning capacity. The jury shall
be instructed upon the destruction of Johnny’s earning power and shall be
informed of the other damage awards in the case.
Appellants next contend that the circuit court erred by denying their
CR 50.01 motion for a directed verdict on the issue of comparative fault. A
directed verdict is proper when drawing all inferences in favor of the nonmoving
party, a reasonable juror could only conclude that the moving party was entitled to
a verdict. CR 50.01; Morrison v. Trailmobile Trailers, Inc., 526 S.W.2d 822 (Ky.
Specifically, appellants claim that their conduct was not the proximate
cause of Johnny’s death and, thus, they were not negligent as a matter of law.
Appellants contend that Love’s negligence was unforeseeable and was a
superseding act which relieved them of “any liability associated with the negligent
event of allowing Johnny access to the OxyContin . . . .” Appellants’ Brief at 24.
As such, appellants assert they were entitled to a directed verdict upon comparative
fault. We disagree.
In this Commonwealth, it has been recognized that medical
negligence can be reasonably anticipated as an intervening act which is a natural
consequence of the primary wrongdoer’s act and, thus, does not constitute a
superseding act that would relieve the original negligent actor of liability. City of
Covington v. Keal, 133 S.W.2d 49 (Ky. 1939); Brown Motel Co. v. Marx, 411
S.W.2d 911 (Ky. 1967). See also 22 Am. Jur. 2d Damages § 243, 246 (2003).
Thus, appellants’ argument that Love’s negligence was a superseding act is clearly
without merit. As such, the circuit court properly denied appellants’ motion for
directed verdict upon comparative fault.
Appellants finally contend the circuit court erred by reducing their
“bill of costs” by eighty percent. Appellants’ entire argument consists of three
sentences and is as follows:
The Trial Court should not have reduced the costs
pursuant to C.R. 54.04 and KRS 453.040. Love would
not admit negligence and Appellees were required to
spend money, a rather substantial sum, in prosecuting
their medical malpractice claims and were successful.
Therefore, it is only equitable that they be awarded their
full recoverable costs.
Appellants’ Brief at 25.
Under CR 54.04 and Kentucky Revised Statutes 453.040, costs are
usually awarded to the prevailing or successful party. CR 54.04(1) specifically
provides that “[i]n the event of a partial judgment or a judgment in which neither
party prevails entirely against the other costs shall be borne as directed by the trial
court.” And, the award of costs generally lies within the sound discretion of the
trial court. Trimble Co. Fiscal Ct. v. Trimble Co. Bd. of Health, 587 S.W.2d 276
In this case, appellants did not entirely prevail at trial, as the jury
apportioned eighty percent of fault directly to them. Thus, we think the circuit
court properly utilized its discretion under CR 54.04(1) by reducing appellants’
award of costs by eighty percent, which represented their respective apportionment
of fault. See Owensboro Mercy Health Systems v. Payne, 24 S.W.3d 675 (Ky.App.
2000). There being no supporting authority presented for appellants’ argument, we
find no error in the circuit court’s ruling on this issue.
For the foregoing reasons, the judgment of the Boone Circuit Court is
affirmed in part, reversed in part, and this case is remanded for proceedings not
inconsistent with this opinion.
BRIEF FOR APPELLANTS:
John D. Holschuh, Jr.
BRIEF AND ORAL ARGUMENT
Mary K. Molloy
Jerry M. Miniard
ORAL ARGUMENT FOR
Jerry M. Miniard