The Kentucky Supreme Court has published Kemper v. Gordon, involving the question of whether Kentucky would adopt the Lost of Diminished Chance Doctrine, or to put it, allow recovery by plaintiff’s whose death is not the result of the negligence, but who may have suffered a diminished chance of survival due to the negligence.  The Maryland Injury Lawyer Blog actually has a good post on the court’s opinion, although the author, Ron Miller disagrees with it.  You can read the entire post here.

While I certainly agree that the results are tragic, I must confess my agreement with the majority in this 5-2 decision.  I agree that the determinations regarding minute percentages between a diminished life is not something Kentucky court’s should be willing to enter.  Frankly, I doubt science, especially medical science, can even begin to offer a scientific basis for such a determination and instead will rely, as the majority fears, on medical experts, whose basis appears to be nothing but lay opinion guised as medical fact.

That being said, the case actually reversed a jury verdict in favor of Dr. Kemper.  According to the majority it was error for the trial court to exclude evidence that an expert in the case, Dr. John, had given different medical testimony in a previous case.  It ruled that the exclusion of other experts was proper due to a lack of disclosure.

While I certainly sympathize with the family, it should be noted that they did settle with two other doctor’s, who it would appear, based on the evidence, had far more chance of being responsible.  Having looked at the record, at least from the opinion, I think it will be difficult for a jury to find Dr. Kemper liable and I don’t think potential plaintiff’s should be able to get around this difficulty by claiming loss of diminished chance.  However, the introduction of the impeachment evidence at a new trial may change my opinion and this result.

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The Court of Appeals recently published Woolum v. Hillman, a medical malpractice case arising from the death of Hillman’s unborn child.  One of the more interesting issues on appeal was the allowance by the trial judge of evidence that an expert, Dr. Butcher, testifying on behalf of Dr. Woolum had the same malpractice carrier as the defendant.  Woolum argued such evidence was irrelevant and highly prejudicial and pointed to established case law in support.

However, the trial judge noted five reasons why evidence rule 411’s prohibition on the mention of liability insurance did not apply. They included:

(1) Dr. Butcher unequivocally stated in his deposition that he is of the belief and opinion that malpractice cases result in, and have a direct link to, rate increases;

(2) Dr. Butcher left one state because he believed there was a collusion between judges and lawyers in malpractice cases;

(3) Dr. Butcher’s comments were so severe during his deposition that defense counsel felt the need to rein him in and caution him;

(4) Dr. Butcher has established a general hostility to medical negligence cases;

(5) Dr. Woolum and Dr. Butcher have more than simply the casual connection of having the same insurance company, as they had worked side by side for 20 years in the same community hospital.

The Court of Appeals ruled that the evidence was being used to show Dr. Butcher’s “extreme prejudice towards malpractice cases.” The court went further; “Ordinarily, the extreme prejudicial effect of such testimony would outweigh the probative value, but Dr. Butcher’s hostility to malpractice cases is extreme and combined with his personal relationship to Dr. Woolum, provides a sufficient basis for the trial court to find that the testimony is admissible.”

The dissent noted:

Dr. Butcher declared under oath that his insurance premiums would not be directly affected by his testimony on behalf of Dr. Woolum. That is, his cost of insurance would neither be increased nor decreased. This evidence is unrebutted. Consequently, the mere coincidence of being covered by the same insurance company does not indicate sufficient bias or prejudice to affect credibility. Any probative value of admitting evidence of insurance coverage is substantially outweighed by the likely predilection to find liability without fault.

Editor’s Note: The dissent makes a very valid point.  That Dr. Butcher is biased towards other doctors in medical malpractice cases is obvious.  That Dr. Butcher is hostile towards claims of medical malpractice is too.  However, that Dr. Butcher shares the same medical malpractice carrier as the defendant is completely irrelevant to show bias in light of Dr. Butcher’s direct testimony that he did not think that his rates would be effected by the claim against Dr. Woolum.  The fact they share the same carrier does not show bias in this particular instance.

The case also has other interesting discussions on issues found in medical malpractice cases, making it worth reading.

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.