Bellamy v. Pathak
| Decision Date | 21 May 1993 |
| Docket Number | No. 92-CA-001667-MR,92-CA-001667-MR |
| Citation | 869 S.W.2d 45 |
| Parties | Sherri BELLAMY, Individually; Sherri Bellamy, Administratrix, Erica Bellamy Estate, Appellant, v. Kunja PATHAK, M.D., Appellee. |
| Court | Kentucky Court of Appeals |
Joseph C. Souza, Nancy L. Richerson, Louisville, for appellant.
Murray A. Raines, W. Cravens Priest, III, English, Lucas, Priest & Owsley, Bowling Green, Jesse L. Riley, Russellville, for appellee.
Before JOHNSON, McDONALD and STUMBO, JJ.
This appeal arises from a medical malpractice action filed by Appellant, Sherri Bellamy (hereinafter "Bellamy"), Individually and as Administratrix of the Estate of Erica Bellamy, deceased, against Appellee, Kunja Pathak, M.D. (hereinafter "Pathak"). The jury returned a verdict in favor of Pathak, and the Logan Circuit Court entered judgment accordingly. After reviewing the record and the law, we must reverse and remand for a new trial.
In view of the limited transcript filed with the appeal and the narrow scope of the issues on appeal, we will limit our discussion of the facts to the issues presented. After the jury had retired, it advised the trial court that it had certain questions concerning the evidence presented. The jury asked whether the "Parkland" study, which was apparently mentioned by the experts, was conducted "solely on hypertensive patients or toxemic patients." It further inquired as to whether Bellamy's expert had testified in terms of possibilities or probabilities of increasing the longevity of the fetus if Bellamy had been placed on bed rest.
For the record, we note that the Parkland study is not included in the record on appeal. We have been advised that the experts referred to portions of it during their testimony, but that the study was not introduced, nor did the experts mention or note the type of patient involved in the study.
As for Bellamy's expert, on direct examination he testified in terms of reasonable medical probability. The mention of "possibility" at trial came on cross-examination, where he was asked about his testimony in his deposition. The question and answer were as follows:
Q. I will read the question and your answer. I'll leave out, 'I appreciate that.' 'So that I can understand your testimony, it's your opinion that the gestational age of the child could have been increased or could possibly have been increased if Dr. Pathak on October 21, 1983, had recommended a regiment [sic] of bed rest for Ms. Bellamy,' and your answer, 'That's correct.' Do you have any reason to believe that the court reporter put down anything other than what I said and what you said.
A. No, I don't.
The trial court and counsel retired to chambers to consider the jury's requests. Bellamy's counsel conceded that the Parkland study could not be reread to the jury, since to do so would allow them to "essentially [take] the study back with them." As a result, the error, if any, as to the study was waived. See Byck v. Commonwealth Ins. Co., Ky., 269 S.W.2d 214, 218 (1954).
As for the question about the expert's testimony, although Bellamy's counsel had some doubts as to the propriety of it, he requested the trial court have it read to the jury from either the transcript or deposition of the expert so as to avoid having the jury speculate on the question. Thus, despite Pathak's argument to the contrary, there was no waiver by Bellamy. The trial court determined not to reread the testimony and admonished the jury that rereading it would give undue emphasis to it, the jury was charged with recalling the evidence as best it could, and the parties' counsel "agreed" that rereading it was improper. Our review of the record does not disclose whether the trial court thought it had any discretion on the issue.
Approximately one hour later, after conducting some needed, but belated, research, Bellamy's counsel asked the trial court to reconsider, since the trial court did have discretion on the issue. At the same time, counsel had a discussion as to potential technical difficulties in rereading or replaying the trial testimony. Apparently, the recording of the expert's testimony made by the...
To continue reading
Request your trial
-
Harris v. Com.
...the judge must balance the risk of emphasizing particular testimony against the need to obviate juror confusion. Bellamy v. Pathak, Ky.App., 869 S.W.2d 45, 47 (1993) (citing Smith v. Wright, Ky., 512 S.W.2d 943, 947 (1974)). A trial judge is only required to provide the jury with the reques......
-
Harris v. Commonwealth, No. 2002-SC-0651-MR (KY 6/10/2004)
...the judge must balance the risk of emphasizing particular testimony against the need to obviate juror confusion. Bellamy v. Pathak, Ky. App., 869 S.W.2d 45, 47 (1993) (citing Smith v. Wright, Ky., 512 S.W.2d 943, 947 (1974)). A trial judge is only required to provide the jury with the reque......
-
Burkhart v. Com., 2002-SC-0405-MR.
...256, 268 S.W. 1067 (1925); Louisville, H. & St. L. Ry. Co. v. Morgan, 110 Ky. 740, 742-43, 62 S.W. 736, 737 (1901); Bellamy v. Pathak, Ky.App., 869 S.W.2d 45, 47 (1993). In Berrier, for example, we ruled a trial court erred when it allowed deliberating jurors to take witness interview summa......
-
Jeffries v. Georgia-Pacific Corporation, No. 2007-CA-000879-MR (Ky. App. 11/21/2008)
...claims that the trial court erred in refusing to permit the jury to rehear Irwin's deposition testimony. Further, citing Bellamy v. Pathak, 869 S.W.2d 45 (Ky. App. 1993) and Young v. State Farm Mutual Insurance Company, 975 S.W.2d 98 (Ky. 1998), the Estate argues that the trial court failed......