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.

The Kentucky Law Review posted an op-ed on HB 478, which apparently removes the right of an insured to direct withholding of no fault benefits for the payment of lost wages, in cases of emergency care. It would require the no fault obligor to pay emergency services directly to the medical provider and that the benefits be considered primary to all other forms of payment. While not specifically mentioned in the op-ed, the bill also contains language establishing a means to challenge whether a medical bill or treatment is reasonable or necessary by establishing a review and appeal process, including examinations.

This bill appears to be an attempt to address some of my earlier concerns in my post titled Chiropractor on Trial, PIP Abuse, and Other Thoughts. I question why hospitals and emergency services should receive priority over other medical services or wage loss claims. Especially, in light of my earlier questions regarding extensive workups for relatively minor injuries. I am unsure what costs in healthcare have risen the most recently but I would imagine emergency services are right up there. I don’t see how this would maximize the use of no fault benefits to the injured party’s benefit. I disagree with Mike’s comments that the “PIP insurer wins”, because I don’t think it matters to the PIP carrier whom it pays, the hospital or the insured.

The procedure suggested certainly appears to address the issue of what treatment is reasonable or necessary, but as I mentioned in my earlier posts addressing reasonable and necessary treatment does not make the charges reasonable or necessary or maximize the PIP coverage. It also seems to pit the PIP carrier against the insured in that determination by requiring examinations, reviews, and appeals of requested treatment. Most of these options are already in place but simply are not effective. I am concerned this language will lead only to increased costs and litigation, without accomplishing any real change in the means in which unreasonable and unnecessary charges are dealt with.

What Kentucky needs is for someone to address the disparity in no fault benefits as payment for medical expenses compared to other forms of compensation for these expenses. What Kentucky needs is for someone to address the ridiculous gold mine that is no fault and its propensity to encourage unreasonable and unnecessary treatment, leading to a reduction in the value of no fault insurance coverage over time. It’s the manner in which the coverage is administered that is the problem not in the means in which it is accomplished.

All of which brings me to something I have been thinking about. Should Kentucky simply do away with its no fault law?

The Court of Appeals has published its minutes for February 8th, here. There are no published opinions dealing with tort and insurance law.

Interesting article in the Courier Journal today, titled Judge tells attorneys to zip it. The Courier reports statements attributed to Judge Sean R. Delantey, saying “that certain prosecutors were wasting court time by making “obnoxious, ridiculous, abundant and useless objections” during probable-cause hearings.” Apparently Judge Delantey has a written policy that prosecutors have a “standing objection to each and every question” that defense attorneys ask of witnesses during probable-cause hearings. Judge Delantey was quoted; “I believe I have the discretion to do this.”

County Attorney Irv Maze was quoted as saying; “I’m just shocked.” “I don’t know what’s going on in his mind. We all go by the same rules.” The County Attorney has requested his prosecutors abide by the Judge’s request until the issue can be decided by appeal.

Of course the problem with the Judge’s rule regarding standing objections, is that the objection must be made in the first place. Only if it is overruled and the objectionable questioning continues does a standing objection need to be placed. The way it appears in the article is Judge Delantey simply notes an objection by the prosecutors to “every” question asked, allowing them to argue later the evidence should not have been admitted.

The issue is obvious, who knows if the County Attorney’s office would have objected if they never voiced an objection in the first place. An unvoiced objection is considered waived. This creates a problem. The County Attorney’s office may later be considered to have waived any objection not specifically made at the time the question was posed, OR it essentially allows them to make objections to specific questions after the hearing.

The rule is procedurally improper and actually detrimental to defense attorneys and prosecutors who both may be bitten by it on appeal. The fact the Judge believes he has the discretion to set aside the rules of evidence and create his own exception is concerning. The threats of holding attorneys in contempt for violating the self imposed “policy” is simply wrong.