Jewish Hosp. & St. Mary's Healthcare, Inc. v. House

Decision Date13 December 2018
Docket Number2017-SC-000440-DG
Citation563 S.W.3d 626
Parties JEWISH HOSPITAL & ST. MARY’S HEALTHCARE, INC. d/b/a Jewish Hospital Medical Center South, Appellant v. Barbara HOUSE, Administratrix of the Estate of Laura B. Alexander, Deceased; Barbara House, Co-Guardian of Kaylen Alexander, a Minor; and Darrell House, Co-Guardian of Kaylen Alexander, a Minor, Appellees
CourtUnited States State Supreme Court — District of Kentucky

COUNSEL FOR APPELLANT: William Kennedy Simpson, Joseph Wright, Thompson, Miller & Simpson, PLC.

COUNSEL FOR APPELLEES: Ronald Wilt, Stephen Klausing Jr., Wilt & Klausing, PLLC, James David Ballinger, Louisville, Ballinger Law, PLLC.


Laura Alexander was a patient at Jewish Hospital Medical Center South ("Jewish Hospital"). She was treated and released on November 28, 2011. Tragically, later that evening, Laura was taken by ambulance to Jewish Hospital in downtown Louisville. She died several hours later from cardiac arrest

secondary to a staph aureus infection in her blood. Barbara House, Laura’s mother and administratrix of her estate, brought suit in Bullitt Circuit Court, alleging medical malpractice against Dr. Charles Sherrard, Jr., Jewish Hospital, and Dr. Sherrard’s professional group. Dr. Sherrard settled the claims against him but the case against Jewish Hospital proceeded to trial, after which a jury found in favor of Jewish Hospital. The Court of Appeals reversed and remanded for a new trial. This Court granted discretionary review. For the following reasons, we now reverse and reinstate the judgment of the Bullitt Circuit Court.


Laura, then thirty-three years old, came into Jewish Hospital’s Emergency Room ("ER") early on the morning of November 28, 2011. She complained of dark urine, feeling dehydrated, muscular pain, and weakness in her arms and legs. Although her blood pressure was in the normal range, her heartrate was elevated at 148 beats per minute (bpm). Dr. Sherrard evaluated Laura at approximately 6:15 a.m.; he obtained a medical history, ordered lab tests, and ordered two liters of intravenous fluids to be administered.

Early during Laura’s stay, the nursing shift changed, and Nurse Charity Johnston began assisting in Laura’s treatment. Johnston administered the first liter of fluids at 6:30 a.m.; at 8:08 a.m., Dr. Sherrard re-evaluated Laura and noted that her heartrate had decreased to between 114 and 118 bpm. During this re-evaluation, Laura informed Dr. Sherrard that she had exercised strenuously a few days earlier. Due to this new information, Dr. Sherrard suspected that Laura’s symptoms were caused by rhabdomyolysis

, muscle fibers breaking down after physical damage. Laura’s potassium was decreased in her lab results so Dr. Sherrard also diagnosed Laura with hypokalemia, a potassium deficiency

, as well as acute dehydration, exercised-induced myositis (inflammation of muscle tissue), and myofascial (muscular irritation) pain.

At 8:15 a.m., Dr. Sherrard entered an order discharging Laura, conditioned upon her receiving a second liter of fluids. Johnston administered the second liter at 8:18 a.m. At that time, Laura’s heartrate was 124 bpm. At 9:47 a.m., Johnston discharged Laura. At that time her heartrate was 132 bpm. Although her heartrate was lower than when she first presented in the ER, it was higher than when Dr. Sherrard had last evaluated Laura. Johnston did not notify Dr. Sherrard of this change but, instead, continued with the discharge instruction. Johnston stated that she felt, in her nursing judgment, that Laura’s heartrate at discharge was consistent with what it had been at the time Dr. Sherrard had ordered the conditional discharge.

Laura’s discharge from Jewish Hospital, while still tachycardic, was the focal point of the alleged malpractice of both Dr. Sherrard and Nurse Johnston. During his deposition testimony, Dr. Sherrard explained that there were several factors he felt contributed to Laura’s increased heartrate: she had just finished taking Flexeril

(prescribed for muscular pain) which can cause tachycardia ; tachycardia can occur with dehydration and may not completely resolve with fluids; and Laura’s heartrate at a recent visit to the ER was also above 100, so her baseline may be higher than normal.

Laura went home with her mother and spent most of the day in bed. At about 7:00 p.m. that same evening, Laura experienced sudden shortness of breath and paralysis in her arms and legs. She was taken by ambulance to Jewish Hospital’s downtown Louisville facility. After a thorough examination and aggressive care, doctors determined that Laura was in septic shock

. When Laura visited the emergency room earlier that day, she had not presented with fever, chills, or any of the normal signs of infection, per Dr. Sherrard. Upon admission that evening, the doctors and nurses at the downtown facility administered antibiotics upon determining she was in septic shock. Sadly, the professionals were unable to save Laura. She passed away shortly after midnight from cardiac arrest, secondary to a staph aureus infection in her blood. It was later determined that Laura had been treated several weeks prior for a boil;1 it had been surgically lanced and was the probable cause of the sepsis that led to Laura’s death.

Dr. Sherrard settled Laura’s estate’s claims against him. The claims against Jewish Hospital proceeded to trial. Dr. Sherrard was not present at trial; his video deposition was played for the jury. He was still included as a party to the proceedings for apportionment purposes under Kentucky Revised Statute ("KRS") 411.182.2

At the close of plaintiff’s case, Jewish Hospital’s counsel moved for directed verdict, claiming that the plaintiffs had failed to prove causation. The trial court denied the motion. Jewish Hospital then moved for directed verdict on standard of care as to Dr. Sherrard; counsel argued that it was undisputed by the parties that Dr. Sherrard’s conduct fell below the standard of care. Laura’s estate’s counsel argued that, from Dr. Sherrard’s video testimony, he testified that his conduct was appropriate. Because Dr. Sherrard was an expert witness, this testimony was sufficient to create an issue of fact for the jury. The judge granted Jewish Hospital’s motion, stating that each of the expert witnesses presented by Laura’s estate had testified that Dr. Sherrard’s conduct was below the standard of care. The case was presented to the jury with an instruction that Dr. Sherrard had fallen below the standard of care. The jury returned a verdict for Jewish Hospital.

The Estate appealed. The Court of Appeals determined that, not only was the trial court’s grant of directed verdict in error, but also held that a trial court cannot grant a directed verdict of negligence against an empty-chair defendant. The Court of Appeals cited to this Court’s case in CertainTeed Corp. v. Dexter, 330 S.W.3d 64 (Ky. 2010) as the foundation of its broad holding. The Court of Appeals reversed the judgment and remanded the case for a new trial. Jewish Hospital moved this Court for discretionary review, which we granted.


On appeal, the central issue before this Court is whether the trial court erred in granting a directed verdict on the issue of Dr. Sherrard’s failing to meet the relevant standard of care. "[A] trial judge cannot enter a directed verdict unless there is a complete absence of proof on a material issue or if no disputed issues of fact exist upon which reasonable minds could differ." Argotte v. Harrington, 521 S.W.3d 550, 554 (Ky. 2017) (quoting Bierman v. Klapheke, 967 S.W.2d 16, 18-19 (Ky. 1998) ). "The trial court must draw all fair and reasonable inferences from the evidence in favor of the party opposing the motion." Argotte, 521 S.W.3d at 554 (quoting Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983) ). " ‘On appellate review of an order granting a directed verdict, the test is whether Tinder the evidence as a whole it would not be clearly unreasonable for a jury to find [for the plaintiff].’ " Argotte, 521 S.W.3d at 554 (quoting Sawhill, 660 S.W.2d at 5 ).


On direct appeal, the Court of Appeals discussed the oddity of a plaintiff’s case involving an empty-chair defendant. "The plaintiff’s strategy in such cases is turned on its head." The plaintiff no longer hopes to prove this absent actor at fault, but rather to minimize that party’s comparative fault and, thus, maximize recovery from the party proceeding to trial. Noting this irregularity, the Court of Appeals cited to this Court’s opinion in CertainTeed v. Dexter, stating that "[e]mpty-chair defendants who have settled are to be treated no differently than participating defendants in regard to what must be proved to apportion fault against them [even t]hough the empty-chair defendant will not actually be held liable in the trial, since it is literally not on trial ..." 330 S.W.3d 64, 74 (Ky. 2010). In an attempt to clarify the rule, the Court of Appeals stated: "the party who benefits by the jury’s belief in the fault of the empty-chair defendant bears the burden of proving by a preponderance of the evidence every element of the empty-chair defendant’s liability, just as if he or she was still exposed to indeterminate liability and still had a presence in the courtroom."

The "crux" of the reversible error found by the Court of Appeals was "the trial court’s failure to consider the effect of the shifting burden of proof in an empty-chair defendant tort case." The Court of Appeals determined the directed verdict as to Dr. Sherrard’s liability was, therefore, premature. "[W]e would never have permitted a directed verdict at the close of the plaintiff’s case against Jewish Hospital - the "participating defendant[ ]" as CertainTeed would call it." Applying the same rule to the scenario before it, the Court of Appeals plainly held: "No directed verdict may be entered against an...

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