Gordon v. Kemper, No. 2002-CA-001983-MR (KY 3/25/2005)
| Decision Date | 25 March 2005 |
| Docket Number | Cross-Appeal No. 2002-CA-002043-MR.,No. 2002-CA-001983-MR.,2002-CA-001983-MR. |
| Parties | BARRY GORDON, INDIVIDUALLY AND ALSO AS SURVIVING SPOUSE AND PERSONAL REPRESENTATIVE OF THE ESTATE OF LORI GORDON, DECEASED; AND STUART GORDON, BY AND THROUGH HIS PARENT AND NEXT FRIEND, BARRY D. GORDON; AND SAMANTHA GORDON, BY AND THROUGH HER PARENT AND NEXT FRIEND, BARRY D. GORDON APPELLANTS/CROSS-APPELLEES, v. WARREN KEMPER, M.D. APPELLEE/CROSS-APPELLANT. |
| Court | Supreme Court of Kentucky |
Ann B. Oldfather, Lea A. Player, OLDFATHER & MORRIS, Louisville, Kentucky, Briefs and Oral Argument for Appellant.
Ann B. Oldfather, OLDFATHER & MORRIS, Louisville, Kentucky, Oral Argument for Appellant.
C. Thomas Hectus, Randall S. Strause, HECTUS & STRAUSE, PLLC, Louisville, Kentucky, Brief for Appellee.
C. Thomas Hectus, HECTUS & STRAUSE, PLLC, Louisville, Kentucky, Oral Argument for Appellee.
Before: MINTON, SCHRODER, and TAYLOR, Judges.
This is an appeal from a Final Judgment entered by the Jefferson Circuit Court upon a jury verdict dismissing a medical malpractice action against Warren Kemper, M.D. Barry Gordon, individually and also as surviving spouse and personal representative of the estate of Lori Gordon, deceased, and Stuart Gordon, by and through his parent and next friend, Barry D. Gordon, and Samantha Gordon, by and through her parent and next friend, Barry D. Gordon (collectively referred to as appellants) bring Appeal No. 2002-CA-001983-MR from an April 3, 2002, Final Judgment of the Jefferson Circuit Court. Warren Kemper, M.D. brings Cross-Appeal No. 2002-CA-002043-MR from the April 3, 2002, Final Judgment of the Jefferson Circuit Court. We affirm in part and reverse and remand in part Appeal No. 2002-CA-001983-MR. We dismiss Cross-Appeal No. 2002-CA-002043-MR.
In early February 1996, Lori, then 38 years of age and otherwise in good health, suddenly experienced severe nausea, chest pain, and dizziness. By ambulance, Lori was transported to Baptist Hospital East in Louisville, Kentucky. She received a cardiovascular evaluation by Dr. George Stacy but was subsequently discharged without a firm diagnosis.
On April 14, 1996, Lori was at the movie theater with one of her children when the symptoms suddenly returned. The nausea and chest pain were so severe that an ambulance was needed. Lori was again taken to Baptist Hospital East, and the emergency room physician, Dr. Charles Smith, found nothing medically wrong with Lori. He prescribed Ativan for anxiousness and recommended she see an internist.
One day later, on April 15, Lori saw Dr. Kemper, an internist, at his office. At this time, Lori's weight was reported to be 137 pounds. Dr. Kemper ordered an ultrasound of the gallbladder to rule out gallbladder disease. He also prescribed Xanax for anxiety. Dr. Kemper subsequently interpreted the ultrasound to be within normal limits.
It appears that Lori and/or her husband called Dr. Kemper several times after April 15. Lori's symptoms continued to worsen. Because of the severity of Lori's symptoms, a family trip to Disney World was cancelled. The nausea had even caused Lori to pass out at her child's preschool. In late April 1996, Dr. Kemper ordered a Computed Axial Tomography (CAT) Scan of the abdomen; the CAT Scan report revealed a two-centimeter cavernous hemangioma on the right lobe of the liver and a two-centimeter right ovarian cyst. Dr. Kemper interpreted this report as being within normal limits. Having ruled out what he believed to be all physical causes for Lori's symptoms, Dr. Kemper opined that her symptoms were caused by anxiety and/or panic attacks. He believed Lori needed psychiatric care, not medical treatment for her condition.
In June and July 1996, Lori was examined by Dr. Larry Mudd, a psychiatrist. Dr. Mudd diagnosed Lori with an anxiety disorder and began to treat her with medication. In late August 1996, Lori's symptoms had not abated but continued to worsen, so she consulted with another internist, Dr. Robert Ellis. At this time, Lori's weight was reported to be 125 pounds. Having obtained no medical explanation for her symptoms, Lori saw a psychologist, Dr. Carroll Macy in September 1996, and consulted with another psychiatrist, Dr. Karen Head, in October 1996. In December 1996, Lori began treatment with yet another psychiatrist, Dr. Ken Davis. Dr. Davis also diagnosed Lori with anxiety. By December 1996, Lori's weight was reported to be 117 pounds.
From April 1996 to December 1996, Lori experienced unexplained weight loss of some twenty pounds. During this time, Lori believed that something was physically wrong with her. Lori was so fatigued that she could barely get out of bed and so nauseated that she could hardly eat. She reported hair loss, chronic urinary tract infections, and severe chest pains. In December 1996, Lori discovered two enlarged lymph nodes in her neck. She immediately called Dr. Ellis to set up an office visit.
After examining Lori, Dr. Ellis referred her to Dr. Janet Chipman for biopsy of the lymph nodes. The biopsy revealed adenoma carcinoma. On February 4, 1997, Lori was admitted to the hospital, and a repeat biopsy of the lymph nodes was performed. The pathology revealed Grade III adenoma carcinoma. A CAT Scan of the abdomen and pelvis also revealed extensive adenopathy. Lori was finally diagnosed with metastasized gastric (stomach) cancer.
On July 7, 1997, Lori filed a medical malpractice action against, inter alios, Dr. Kemper and Dr. Ellis.1 Therein, Lori particularly claimed that Dr. Kemper Afailed to take reasonable and appropriate steps to make a timely diagnosis of. . . [her] stomach cancer, thereby allowing the disease to progress in size, scope and severity.
Lori died on January 13, 1998, during the pendency of the action, and the personal representative of her estate was substituted. A jury trial ensued. After the case was submitted to the jury but before a verdict was reached, appellants and Dr. Ellis entered into a settlement agreement. The jury was not informed of the settlement and eventually returned a verdict in favor of Dr. Kemper and Dr. Ellis. On April 3, 2002, the trial court entered judgment pursuant to the jury verdict and dismissed all claims against Dr. Kemper. These appeals follow.
Appellants raise several issues for our consideration. We shall begin with the most troublesome issue — whether the trial court's jury instructions were erroneous. Specifically, appellants complain of instruction 2, which reads:2
It was the duty of defendant, Warren Kemper, M.D., to use in his care and treatment of Lori Gordon, that degree of care and skill which is expected of a reasonably competent internist, acting under the same or similar circumstances. Do you believe from the evidence that Dr. Kemper failed to use the degree of care imposed upon him by this Instruction, and that such failure was a substantial factor in causing the injury to Lori Gordon about which you have heard evidence?
During trial, appellants proposed an alternative instruction that asked the jury to determine whether Dr. Kemper breached the applicable standard of care and, if so, whether such breach was a substantial factor in causing Lori to suffer a delay in diagnosis/treatment.
Juxtaposing instruction 2 and appellants' proposed jury instruction, it becomes readily apparent that each instruction differs in its respective definition of the legally compensable injury.3 Under instruction 2, the injury was generally defined as "the injury to Lori Gordon about which you have heard evidence"; whereas, under appellants' proposed instruction, the injury was essentially defined as the failure to diagnose or treat Lori that resulted in a diminished chance of survival.
This Commonwealth has yet to recognize a diminished chance of recovery/survival as a distinct compensable injury in tort law.4 A growing number of other jurisdictions have done so,5 and the analytical foundation supporting this growing acceptance is commonly referred to as the "loss-of-chance doctrine." See Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981).
The loss-of-chance doctrine was developed in response to the often harsh results of the traditional "all or nothing rule." See George J. Zilich, Cutting Through The Confusion of The Loss-of-Chance Doctrine Under Ohio Law: A New Cause of Action or A New Standard of Causation?, 50 Clev. St. L. Rev. 673 (2002-2003). Historically, this Commonwealth has adhered to the all-or-nothing rule in medical malpractice cases.6 Under the traditional all-or-nothing rule, plaintiff must prove within a reasonable probability that defendant's breach of the standard of care was a substantial factor in causing the underlying injury. As the compensable injury is viewed as the underlying injury, plaintiff must prove within a reasonable probability that she would have recovered or survived absent defendant's negligent conduct. If plaintiff is unable to prove a reasonable probability of recovery/survival, she would recover nothing; it is in these narrow cases that the loss-of-chance doctrine would be implicated.
Under our interpretation of the loss-of-chance doctrine, plaintiff is required to prove that defendant's breach of the standard of care was a substantial factor in causing a diminished chance of recovery/survival from the underlying injury. See Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980) (); see also, Pathways, Inc. v. Hammons, 113 S.W.3d 85 (Ky. 2003); Bailey v. North American Refractories Co., 95 S.W.3d 868 (Ky.App. 2001). Most often, the loss-of-chance doctrine would be employed where the breach of the standard of care...
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