TUCKER (ABIGAIL) VS. SCHROERING (STEPHEN P.)
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RENDERED: OCTOBER 15, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001634-MR
ABIGAIL TUCKER
v.
APPELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L. ATKINS, JUDGE
ACTION NO. 05-CI-00792
STEPHEN P. SCHROERING, M.D.
APPELLEE
OPINION
AFFIRMING
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BEFORE: THOMPSON, VANMETER, AND WINE, JUDGES.
VANMETER, JUDGE: Abigail Tucker appeals from the Christian Circuit Court’s
denial of her motion for a directed verdict. For the following reasons, we affirm.
In 2003, Tucker began treatment under the care of Stephen P.
Schroering, M.D., an orthopedic surgeon, after sustaining an injury to her clavicle
in an ATV accident. Ultimately, Dr. Schroering elected to surgically repair the
clavicle. Following the operation, and based on his review of post-operative X-
rays, he realized that he had operated on the sternoclavicular joint, rather than the
clavicle.1 Dr. Schroering then performed a second, corrective operation.
After the second operation, Tucker filed this claim of medical
negligence. During trial, at the close of all the evidence, Tucker moved for a
directed verdict on the basis that Dr. Schroering’s testimony admitting he
performed surgery at the wrong site during the first operation constituted a judicial
admission of negligence. The trial court denied the motion and the jury returned a
verdict in favor of Dr. Schroering. Tucker then moved for a judgment
notwithstanding the verdict and alternatively, for a new trial, on substantially the
same grounds as the motion for a directed verdict. The court denied both motions,
and this appeal followed.
Upon consideration of a motion for a directed verdict,
the trial court must draw all fair and reasonable
inferences from the evidence in favor of [the non-moving
party]. If the evidence is sufficient to induce a
reasonable juror to believe . . . that the defendant is
[liable], a directed verdict should not be given. For the
purpose of ruling on the motion, the trial court must
assume that the evidence for the [non-moving party] is
true, but reserving to the jury questions as to the
credibility and weight to be given to such testimony.
On appellate review, the test of a directed verdict
is, if under the evidence as a whole, it would be clearly
unreasonable for a jury to find [liability], only then the
defendant is entitled to a directed verdict of acquittal.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citation omitted);
accord Banks v. Commonwealth, 313 S.W.3d 567, 570 (Ky. 2010).
1
Unknown to Schroering, Tucker had suffered a previous injury to sternoclavicular joint.
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Tucker avers Dr. Schroering’s testimony at trial constituted a judicial
admission of negligence entitling her to a directed verdict. We disagree.
Whether Dr. Schroering’s testimony during trial constitutes a judicial
admission is a question of law subject to de novo review. Witten v. Pack, 237
S.W.3d 133, 136 (Ky. 2007). In Sutherland v. Davis, 286 Ky. 743, 151 S.W.2d
1021 (Ky.App. 1941), the Court extensively addressed the issue of the weight to be
given, under the rules of evidence, to admissions against interest of parties to an
action, differentiating between quasi admissions and judicial admissions. The
Court held a judicial admission
is conclusive, in that it removes the proposition in
question from the field of disputed issue, and may be
defined to be a formal act done in the course of judicial
proceedings which waives or dispenses with the necessity
of producing evidence by the opponent and bars the party
himself from disputing it; and, as a natural consequence,
allows the judge to direct the jury to accept the admission
as conclusive of the disputed fact.
Id. at 749, 151 S.W.2d at 1024 (citation omitted).
In this case, Dr. Schroering presented evidence that despite
mistakenly operating on the sternoclavicular joint, rather than the clavicle, he used
“that degree of care and skill which is expected of a reasonably competent
pract[it]ioner in the same class to which he belongs, acting in the same or similar
circumstances.” Blair v. Eblen, 461 S.W.2d 370, 373 (Ky. 1970) (setting forth
standard of care applicable to physician defendant). Dr. Schroering testified that
during the first operation he made the incision where he felt to be the most
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prominent area and he believed, at the time, he was at the fractured clavicle site.
Even though he was actually at the sternoclavicular joint, he did not realize it
because what he visually and physically encountered during the operation was not
consistent with a normal sternoclavicular joint, which he would have recognized.
Post-surgery, Dr. Schroering ordered a CT scan to assist him in determining
whether Tucker suffered a dislocation of the sternoclavicular joint, a second
fracture very close to the joint, or both. He testified that he then explained to
Tucker that a second procedure was necessary and discussed with her the same
risks as the first operation, before performing the second, corrective surgery.
Additionally, Dr. Schroering introduced expert medical testimony to
demonstrate that he was reasonable in operating at what appeared to be the most
prominent area of the clavicle, the area that had been, in his recollection, the
painful prominence Tucker described, and that an additional injury existed which
was not fully appreciated prior to the first operation. Testimony further established
that the sternoclavicular joint quite feasibly was dislocated prior to Tucker’s first
operation. In addition, testimony showed that Dr. Schroering was reasonably
mistaken in believing he was at the fractured clavicle site during the first operation
and that, under the circumstances, based on a reasonable degree of medical
probability, Dr. Schroering provided reasonably competent care to Tucker.
Testimony was presented to show that although Tucker now has a mild loss of
range of motion, this result is consistent with the procedures performed on her and
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with the likely result she would have had from the ATV accident based on the
trauma she received.
A directed verdict in Tucker’s favor would have been proper if, under
the evidence as a whole, no reasonable jury could have determined that Dr.
Schroering exercised reasonable care in treating her. Absent authority stating that
operating at the wrong site is per se negligence, Dr. Schroering’s testimony to that
effect was not a judicial admission. Furthermore, our review of the record
discloses that substantial evidence was presented during trial whereby a reasonable
jury could have determined that Dr. Schroering exercised reasonable care in
treating Tucker. Thus, a directed verdict in Tucker’s favor was not warranted.
Next, Tucker claims she was entitled to a directed verdict because she
did not consent to operation on the sternoclavicular joint during the first surgery.
We find this claim of error wholly intertwined with her previous claim of error,
discussed above. Again, our standard for reviewing the trial court’s denial of a
directed verdict is, if under the evidence as a whole, it would be clearly
unreasonable for a jury to find no liability on the part of Dr. Schroering.
In this case, the testimony of Dr. Schroering during trial reveals that
he believed he was at the fractured clavicle site during the first operation.
Moreover, his testimony suggests that he did not know of any irregularity at the
sternoclavicular joint, or dislocation of the joint, prior to the first operation. Thus,
it would not be clearly unreasonable for a jury to conclude that the consent given
by Tucker prior to the first operation was indeed as informed as it could be; at the
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time, Dr. Schroering diagnosed Tucker to the best of his knowledge as to the
nature of her injury and advised her of the planned operation. Accordingly, a
directed verdict in Tucker’s favor was not warranted.
The Christian Circuit Court’s denial of Tucker’s motion for a directed
verdict is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Donna Thornton-Green
Paducah, Kentucky
E. Frederick Straub, Jr.
Paducah, Kentucky
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