Jenkins v. Best, 2006-CA-001277-MR.
| Decision Date | 28 September 2007 |
| Docket Number | No. 2006-CA-001277-MR.,No. 2006-CA-001295-MR.,No. 2006-CA-001286-MR.,2006-CA-001277-MR.,2006-CA-001286-MR.,2006-CA-001295-MR. |
| Citation | 250 S.W.3d 680 |
| Parties | Marilyn JENKINS, as Parent and Next Friend of Justin Branum, a Minor, Appellant, v. Gail BEST, M.D.; and University Obstetrical and Gynecological Associates, P.S.C., Appellees. and John M. Farmer, M.D.; Baptist Healthcare System, Inc., d/b/a Baptist Hospital East; and Marilyn Jenkins, as Parent and Next Friend of Justin Branum, a Minor, Appellants, v. Gail Best, M.D.; and University Obstetrical and Gynecological Associates, P.S.C., Appellees. and Baptist Healthcare System, Inc. d/b/a Baptist Hospital East, Appellant, v. Gail Best, M.D.; and University Obstetrical and Gynecological Associates, P.S.C., Appellees. |
| Court | Kentucky Court of Appeals |
David B. Gray, Kevin P. Weis, Goldberg & Simpson, P.S.C., Louisville, KY, for appellant Marilyn Jenkins, as Mother and Next Friend of Justin Branum.
Daniel G. Brown, Darby & Gazak, P.S.C., Louisville, KY, for appellee, University Obstertrical and Gynecological Associates, PSC.
Bradley R. Hume, Beth H. McMasters, Thompson, Miller & Simpson, P.L.C., Louisville, KY, for appellee, Gail Best, M.D.
Gerald R. Toner, Gregory S. McDonald, Katherine Kerns Vesely, O'Bryan, Brown & Toner, Louisville, KY, for appellant, John Farmer, M.D.
Susan Phillips, William P. Swain, Tera M. Rehmel, Phillips, Parker, Orberson, & Moore, P.L.C., Louisville, KY, for appellant, Baptist Hospital East.
Before ACREE and TAYLOR, JUDGES; KNOPF,1 Senior Judge.
Marilyn Jenkins ("Jenkins"), John M. Farmer, M.D. ("Dr.Farmer") and Baptist Healthcare System, Inc. d/b/a Baptist Hospital East ("Baptist Hospital") bring three separate appeals challenging summary judgments in favor of Gail Best, M.D. ("Dr.Best") and University Obstetrical and Gynecological Associates, P.S.C. ("University Associates") entered in Jenkins' medical malpractice action. Having thoroughly examined the record, we conclude that Dr. Farmer and Baptist Hospital have no standing to challenge the summary judgments in favor of their former co-defendants, and their appeals shall be dismissed. With regard to the remaining appeal filed by Jenkins, we affirm the summary judgment in favor of Dr. Best and reverse and remand the summary judgment in favor of University Associates.
Lacking the services of a perinatology2 specialist on its own staff, Baptist Hospital contracted with University Associates to provide them. Pursuant to the contract, University Associates was to employ its own "perinatologists to provide perinatology services for [Baptist Hospital] and patients . . . on call . . . on a 24 hours-a-day and seven days-a-week basis."
Additionally, the contract required University Associates "to provide a Medical Director to provide administrative services" who would serve on hospital committees, report to the medical staff, develop Baptist Hospital's perinatology services policy, and provide continuing medical education lectures. Furthermore, the Medical Director was also required to "[p]articipate in activities related to advertising the perinatology services [offered by Baptist Hospital, a]ssist in Certificate of Need applications, hearings and proceedings [and h]elp prepare for JCAHO [Joint Commission on Accreditation of Healthcare Organizations] and state licensing visits annually." The purpose of the contract therefore was not simply to provide services to patients, but to enhance the credentials and reputation of Baptist Hospital.
The particular contract before us, signed on October 11, 2001, was an extension or renewal of a previous agreement under which University Associates had been providing these services to Baptist Hospital since at least 1998. The contract was mutually nonexclusive, permitting both parties to enter into similar contracts with others. University Associates did enter into at least one other contract, with the University of Louisville Hospital, to provide these same services.
Dr. Best is a medical doctor with advanced training in obstetrics and gynecology, specifically, in perinatology. University Associates engaged Dr. Best as an employee to assist in performing the perinatology services required of University Associates in fulfilling its service contracts both with University of Louisville Hospital and with Baptist Hospital.
On March 28, 2003, University Associates scheduled Dr. Best to be on call to deliver babies at the University of Louisville Hospital from 5:00 p.m. until 8:00 a.m. the next morning. This contract required Dr. Best to remain in-house at that hospital during the thirteen-hour shift. University Associates also scheduled Dr. Best to be on call during this same time period to perform perinatal care at Baptist Hospital. University Associates had no contingency plan in the event the actual demands of both contracts required simultaneous performance.
In the late afternoon of March 28, 2003, the family of Marilyn Jenkins took her to Baptist Hospital for her second visit that day. She was thirty weeks pregnant and complained of abdominal pain and vaginal bleeding during both visits. Baptist Hospital nurses provided Jenkins' initial care that evening, though they consulted with Dr. Farmer by telephone. Dr. Farmer is a general obstetrician who saw Marilyn Jenkins pursuant to his crossover cover arrangement with Dr. Robert Schweitzer, her regular obstetrician.
At first, the nurses did not believe the unborn child was in any particular distress. Jenkins' potassium levels were variable and appeared low but they were showing reassuring signs of rising. This was reported to Dr. Farmer by telephone. He ordered that Jenkins be given oral potassium after which she could go home. But her family members, concerned about her bleeding, wanted her to be seen by a physician. Responsive to this request and "to more or less reassure the family," Dr. Farmer ordered an ultrasound to be performed by a perinatologist. The nurse told Jenkins, and presumably her family, of the plan for an ultrasound.
The duty nurse called Dr. Best at 9:02 p.m. to request that she come and perform the ultrasound. Dr. Best's testimony and the nurse's notes show that "Dr. Best said she can't come tonight but may be able to do [the ultrasound] in the a.m." The nurse telephoned Dr. Farmer, telling him that Dr. Best was unable to see Jenkins until the morning. Dr. Farmer decided to go to the hospital to examine Jenkins himself.
Dr. Farmer arrived at the hospital at 9:27 p.m. and undertook an examination of Jenkins. He noted "only very scant" blood, but no active bleeding, and the cervix appeared closed. He then ordered a twenty-three hour admission for Jenkins, ordered bed rest for the patient, and for vital signs to be taken every four hours. He decided that the ultrasound should be conducted in the morning to rule out placenta previa.3 A nurse, following this order, contacted Dr. Best at 10:04 p.m. to schedule the ultrasound for the next morning.
When the shift changed at 11:00 p.m., a new nurse assigned to Jenkins examined her and became concerned. Shortly before midnight, the nurse called Dr. Farmer expressing that concern and informing him of Jenkins' condition. She gave Dr. Farmer the vital signs for Jenkins and for her unborn baby. Dr. Farmer ordered that Jenkins be immediately transferred to a third hospital, Norton Suburban Hospital, where a complete obstetrical ultrasound could be performed that night. Early the next morning, Jenkins delivered her son by Caesarian section. Justin Branum was born with hypoxic ischemic encephalopathy4 which rendered him permanently and totally disabled. Sadly, Jenkins' counsel informed the Court during oral argument that Justin subsequently passed away.
When deposed, Dr. Farmer stated that he was unaware that University Associates had no contingency plan in the event Dr. Best was unable to come to Baptist Hospital. He knew, however, that he had initially requested that the ultrasound be conducted that evening and not the next morning. He insists that he ordered a complete Level 2 obstetrical ultrasound by a qualified perinatologist, not merely a routine Level 1 ultrasound. He assumed that the nurses had apprised Dr. Best of Jenkins' condition. Based on this assumption, knowledge and lack thereof, Dr. Farmer assumed that Dr. Best's decision to conduct the ultrasound in the morning was indicative of her opinion that Jenkins' medical condition was not urgent. Dr. Farmer testified that his belief was bolstered by his assumption that if Dr. Best had not been comfortable putting off the ultrasound until the morning, she would have arranged for another specialist to conduct the ultrasound that night. This she did not do.
On October 10, 2003, Jenkins filed a medical malpractice action in Jefferson Circuit Court against Baptist Hospital, Dr. Farmer, University Associates, Dr. Best and Norton Healthcare, Inc. d/b/a Norton Suburban Hospital. No cross-claims were filed. After nearly two years of discovery, University Associates and Dr. Best filed motions for summary judgment to which Baptist Hospital and Dr. Farmer responded. Jenkins filed no written response, but verbally adopted the written responses of Baptist Hospital and Dr. Best by reference during the January 2006 hearing.
At the hearing, Dr. Best argued that she never had a physician-patient relationship with Jenkins. Therefore, Dr. Best owed no duty to Jenkins and was entitled to judgment as a matter of law. University Associates argued that, because Dr. Best owed no duty to Jenkins, it could not be vicariously liable to her.
In opposing these motions, Baptist Hospital and Dr. Farmer did not dispute the absence of the traditional physician-patient relationship. Instead, they presented two arguments to get around its absence. First, they argued that Kentucky has adopted a "universal duty of care" wherein every person owes a duty to every other person to exercise ordinary care to...
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