The Kentucky Law Review reported on a Courier Journal interview with Professor Robert G. Lawson, initially posted on by the Elusive Justice Blog, titled an Example of Resistance to Change. You can read the KLR’s post here, with links to the full article and other interesting posts.

While not germane to tort and insurance law issues, I agree with Mike Stevens that the entire interview should be read. In my opinion, attorneys, regardless of their practice area, are obligated to speak up on important legal issues such as those discussed in the interview. Regardless of your own opinion we are ethically bound to at least join in debating this issue and addressing the questions raised. You should at least be aware of the problem. Not everything is as simple as it appears.

The Court of Appeals recently published Ohio County Hospital Corporation v. Martin, a case resulting from alleged malpractice in the treatment of Billie Shreve. “Shreve died after being treated at the hospital following an automobile accident, and this case arose as a result of a claim of medical negligence brought by the administratrix of her estate and by her surviving husband against the hospital and her treating physician”, Dr. Gregory.

The jury returned a verdict against Dr. Gregory and the hospital, determining that each was liable for 50% of the damages. The jury awarded $48,000 for destruction of Shreve’s power to earn money, $50,000 for her pain and suffering, and $725 for funeral expenses, for a total of $98,725. The jury awarded Donald Shreve $250,000 for loss of consortium. A judgment of $49,362.50 was entered for the Estate and $125,000 for Donald Shreve based on the apportionment of liability.

On appeal the hospital sought to overturn the loss of consortium claim, claiming it improperly allowed damages for loss of consortium when no appreciable time passed between the injuries and Ms. Shreve death, the actual measure of such damages. The Court of Appeals noted:

The facts here are that Shreve lived for only a short period of time between the alleged negligent act and her death. The fact that Mr. Shreve may now be in a difficult situation due to his wife’s death is not relevant to the loss of consortium claim because that claim relates only to damages incurred between the negligent act and death. We conclude that no appreciable time had elapsed between the alleged negligent act and Shreve’s death and that Mr. Shreve could not have suffered damages for loss of consortium during that time. Therefore, the court erred in not granting a directed verdict in favor of the hospital and dismissing the loss of consortium claim.

The hospital also appealed the medical malpractice verdict, citing several procedural and evidentiary errors at trial. The Court of Appeals found any errors to be harmless and the verdict to be supported by the evidence. It affirmed the verdict for Ms. Shreve’s Estate.

The first ten pages of the opinion are dedicated to discussing the EMTALA (Emergency Medical Treatment and Active Labor Act) a federal statute enacted by Congress to prevent hospitals “from dumping patients, who lack insurance to pay for their claims, by either refusing treatment or transferring them to other hospital.” The hospital also cited case law noting that this statute was not a federal malpractice statute. Despite the statute’s clear language and the supporting federal authority, the Court of Appeals discussed the EMTALA at length. It found that the “medical screening” requirement requires evidence of bad faith, which was not present. The medical stabilization requirement requires no such finding, but the Court found that the hospital complied by executing the requisite forms prior to Shreve’s transport. It held that a directed verdict was appropriate on this claim.

Unfortunately, because the EMTALA issue was allowed to go to the jury and the verdict did not separate common elements of damages sought under both claims the entire verdict was vacated, and the case was remanded for a new trial on the issue of the estate’s medical negligence claim.

The Supreme Court published Mid-States Plastics, Inc. v. Estate of Bryant, which dealt with the vicarious liability of an employer for tortious injury by an employee to the employee’s guest on a business trip. The SC identified the issue on appeal, succinctly, stating:

The question in this appeal is whether an employer is liable for an employee’s tortious injuries to a guest who accompanied the employee on a business trip. We opine that in order to hold the employer liable for the employee’s tortious injuries to the employee’s guest on a business trip, the employee must have acted within the scope of his authority in inviting the guest and for the purpose of accomplishing the work of the employer. Because the guest in this case had a strictly non-business purpose in accepting the employee’s invitation, we reverse the Court of Appeals and reinstate the trial court’s dismissal.

The case arose out of the employee, Edwards’, business trip to Indianapolis. He invited his pastor, Reverend William Clinton Bryant, along to visit the Reverend’s family while Edwards worked . The trip for the Reverend was free and involved no business purpose on his part for Mid-States. Unfortunately, the plane struck a cell phone tower and crashed on the return trip, killing both Edwards and Reverend Bryant.

The trial court granted summary judgment, which was overruled by the Court of Appeals. The Court of Appeals believed that there was a factual determination remaining whether Edwards had apparent authority to invite Bryant, and whether Mid-States failed to object. (See my earlier digest of the Appeal opinion, here.) The issue for the appeals court was one of authority. The SC noted that Kentucky law required not only a showing that the employee was acting within his scope of authority in inviting the guest, BUT also that “the guest’s presence must “be construed as being for the purpose of accomplishing the work of the corporation.”” Because there was no doubt that Reverend Bryant’s presence was not for the purpose of accomplishing the work of Mid-States, SJ was appropriate.

Justice Lambert dissented, noting that “Appellees established vicarious liability from the facts that the employee Edwards was acting within the scope of his authority and for a business purpose when the tortious act occurred. Contrary to the majority view, it was not necessary to establish that the third party, Reverend Bryant, was present for the benefit of the company.” Justice Lambert believes that, because Edwards was acting in furtherance of the employer when the tortious act occurred, Mid-States is vicariously liable for his actions.

This is an interesting case that does not turn on the issue of authority, as the court of appeals noted, (as did I in my earlier post), but on the issue of “furtherance of the employer’s business.” Thus, whether Edwards had authority or not was not the issue, but whether the “furtherance of the employer’s business” meant Edwards’ furtherance or Bryant’s. The majority in this 5-1 opinion, opined that Edwards’ invitation, and therefore, Bryant’s presence, must be in furtherance of Mid-States business, NOT Edwards’ actions while committing the tort. While Edwards’ actions in flying the plane for business may have furthered Mid-States purpose, his actions in inviting Bryant was purely for his pleasure, whether it was authorized or not. Bryant was, therefore, not present in furtherance of the business purpose. Therefore, no vicarious liability to Mid-States for failing to object to Edwards’ invitation.

Note: This is the second opinion in as many months limiting employer’s vicarious liability for tortious acts of its employees. It is also the second time Justice Lambert has been the lone dissenter.

The Court of Appeals has posted its minutes for February 22nd, here. Check back for my digest on an interesting published case overturning a medical malpractice verdict.

The Supreme Court has posted its minutes for February, here. Check back for digests of important cases in the area of tort and insurance law.

lawyersandsettlements.com reported on the recent settlement by Angela Bouggess, Michael Newby’s mother, of her wrongful death lawsuit against the Louisville Metro Government. Bouggess claimed Officer McKenzie Mattingly used excessive force when he shot Newby in the back following a reported drug bust gone bad. Police Chief White fired Mattingly after an internal investigation found he did not face an immediate threat and had other options besides shooting Newby. Mattingly was acquitted by a Jefferson County jury of charges resulting from the shooting. The City was ultimately forced to rehire Mattingly and pay him back pay, although Mattingly reportedly did not return to the force.

The Kentucky Law Review posted here on a Herald Leader story, about a Supreme Court committee looking into the rules that currently govern class action and mass tort litigation cases. According to Mike’s post the Herald Leader described the purpose of the committee as follows:

Kentucky’s mass tort and class-action litigation committee has been looking at an assortment of issues including better case management and strengthening ethics rules for lawyers. The cases can involve hundreds of clients and millions of dollars.

The committee, which includes lawyers and current and retired judges, will also look at whether the state should change its rules to mirror federal court rules, which are more specific and include a mechanism for moving similar lawsuits into one court or under one judge.

The selection apparently comes on the heals of criminal charges against three attorneys involved in the diet drug fen-phen settlement. The committee supposedly hopes to have some recommendations within the next 12 months.

Of course, we already have ethics rules in place to address attorney conduct. When those are broken, we have a system in place to discipline attorneys. If the charges include breaking the law, we have the criminal justice system in place to address that as well. Then there is always the civil system which can award damages resulting from someone’s malfeasance or malpractice. While it is certainly admirable to hope attorneys will follow the ethics rules and the law, I don’t believe any amount of laws, rules, or recommendations will actually prevent this type behavior from occurring, unfortunately.