Jewish Hosp. v. Reddington
| Decision Date | 12 May 2023 |
| Docket Number | 2022-CA-0579-MR |
| Parties | JEWISH HOSPITAL, AN ASSUMED NAME OF JEWISH HOSPITAL & ST. MARY'S HEALTHCARE, INC.; AND KENTUCKYONE HEALTH, INC. APPELLANTS v. KAREN REDDINGTON, INDIVIDUALLY; AND KAREN REDDINGTON, AS EXECUTRIX OF THE ESTATE OF DONALD PATRICK REDDINGTON, SR. APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
BRIEFS FOR APPELLANTS: B. Todd Thompson, Eleanor M. B. Davis, Joseph A. Wright
BRIEF FOR APPELLEE: Jack Conway, Kevin C. Burke, Jamie K. Neal
Jewish Hospital, an assumed name of Jewish Hospital &St Mary's Healthcare, Inc., and KentuckyOne Health, Inc. ("Appellants"), appeal from a judgment of the Jefferson Circuit Court entered on March 23, 2022, and from the circuit court's order denying Appellants' post-trial motions entered on April 29, 2022. Appellants argue that the circuit court erred in 1) failing to grant summary judgment; 2) giving the jury improper negligence and missing evidence instructions; 3) allowing the use of privileged documents contrary to the law of the case; and, 4) improperly allowing the jury to hear evidence of Appellants' subsequent remedial policy change. Appellants seek an opinion reversing the judgment on appeal and remanding the matter for a new trial. Having heard the oral arguments of counsel, and after careful review, we find no error and affirm the judgment on appeal.
On April 29, 2016, Donald Reddington ("Mr. Reddington") had surgery at Appellants' hospital to repair a torn rotator cuff. After surgery, Mr. Reddington developed complications and was intubated. He was admitted to the intensive care unit ("ICU"). On May 10, 2016, Mr. Reddington received a tracheostomy and began to make some improvement.
About 10 days later, and based on his improvement, Mr. Reddington's treating physician, Dr. John Wesley McConnell, transferred Mr. Reddington to an intermediate care floor. Mr. Reddington's pulse oximetry was monitored every four hours.
On May 22, 2016, and while monitored by cardiac telemetry, Mr. Reddington's tracheostomy tube became dislodged and he began to asphyxiate. Mr. Reddington's primary room nurse, Rachel Ruppel, was in the cafeteria when the tracheostomy tube became dislodged. Ms. Ruppel would later state that she had previously handed off Mr. Reddington's care to nurse Val McGee. Ms. McGee denied that Ms. Reddington's care was handed off to her, and testimony was later adduced that Ms. McGee was with Ms. Ruppel in the cafeteria.
Sometime after Mr. Reddington's tracheostomy tube became dislodged, a cardiac alarm sounded at the nurses' station which was about 11 feet from Mr. Reddington's room. Nurse Angelique Kahn-Brown heard the alarm, and responded to Mr. Reddington's room. She discovered that the tracheostomy tube was dislodged, and observed that Mr. Reddington was not breathing and his skin was blue. Ms. Kahn-Brown called a "code blue" to summon immediate assistance for Mr. Reddington. At about this time, Ms. Ruppel received a text that Mr. Reddington's cardiac leads were off.
Medical personnel responded to the code blue and attempted to resuscitate Mr. Reddington with CPR and ventilation. Ms. Kahn-Brown initiated these procedures before the code blue personnel arrived. As no appropriate tracheostomy tube was available, a new tube had to be retrieved from Appellants' central supply. Mr. Reddington was re-intubated and resuscitated, but had suffered a hypoxic brain injury due to a lack of oxygen. He never regained consciousness, was subsequently removed from life support, and died.
Several months later, Karen Reddington,[1] individually and as the executrix of the estate of Mr. Reddington ("Appellee"), filed the instant medical negligence action against Appellants in Jefferson Circuit Court. Appellee sought damages for Mr. Reddington's pain, suffering, and mental anguish, as well as for medical expenses, funeral costs, and loss of consortium. Protracted litigation followed, resulting in a jury trial conducted in February and March of 2022. The jury returned an award in favor of Appellee in the amount of $3,913,180.55. Appellants' post-judgment motions were denied, and this appeal followed.
Appellants first argue that the Jefferson Circuit Court committed reversible error in failing to grant its motion for summary judgment. They assert that Appellee failed to produce any expert testimony related to medical causation, with Appellee instead arguing that its experts' opinions on standard of care breaches were sufficient. According to Appellants Appellee's experts testified that they would not offer any opinion on causation at trial. At most, Appellants assert that Appellee's experts testified as to physician conduct, for which Appellants were not responsible. Though Advance Practice Registered Nurse ("APRN") Robert Rogers testified as to causation, Appellants argue that Rogers did not offer expert testimony to a reasonable degree of medical probability, and did not express an opinion that Appellants' conduct was the proximate cause of Mr. Reddington's death. The focus of Appellants' argument on this issue is that without any sworn testimony on causation regarding Appellants' conduct, Appellee was forced to cite its expert disclosures as the sole source of expert opinion on causation. Appellants argue that even when viewing the evidence in Appellee's favor, summary judgment was appropriate because Appellee did not offer any affirmative expert evidence relating to causation and Appellants' conduct.
In response, Appellee argues that Appellants failed to comply with Kentucky Rules of Civil Procedure ("CR") 76.12(4)(c)(v),[2] which requires at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner. Appellee notes that Appellants failed to identify in either the Notice of Appeal or its brief any written order denying its July 21, 2021 motion for summary judgment. Further, Appellee contends that even if Appellants identified in the record an order denying summary judgment, such an order would not be appealable because it was subsumed by the judgment.
Appellants' argument section of the brief does not contain a statement at the beginning with reference to the record showing whether each issue was properly preserved for review and, if so, in what manner.
"A brief may be stricken for failure to substantially comply with the requirements of these rules." RAP 31(H)(1). The rule requiring an argument section including a statement of preservation is a substantial requirement of RAP 32 encompassed by RAP 31(H)(1).
When a party fails to abide by the Rules of Appellate Procedure, we may choose "(1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions . . .; or (3) to review the issues raised in the brief for manifest injustice only[.]" Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010) (citation omitted); see also Ford v. Commonwealth, 628 S.W.3d 147, 153-55 (Ky. 2021).
It appears that either the Jefferson Circuit Court made no ruling on Appellants' summary judgment motion or, if it made the ruling, it was not designated in the appellate record. In either instance, as Appellants have not cited the circuit court's response, if any, to its motion for summary judgment, there is nothing for us to review. The duty rested with Appellants to insist upon a ruling, and the failure to do so constitutes a waiver of the motion. Transportation Cabinet Bureau of Highways, Com. of Ky. v. Leneave, 751 S.W.2d 36, 38 (Ky. App. 1988).
Per Hallis, supra, we have reviewed Appellants' argument on this issue for manifest injustice only. "Manifest injustice" requires a showing that a different result was probable, or that the error in the proceeding was of such magnitude as to be "shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 3-4 (Ky. 2006).
Appellants' motion for summary judgment centered on causation, i.e., its claim that even when viewed in a light most favorable to Appellee, Appellee could not present sufficient expert testimony at trial to demonstrate that Appellants' negligence proximately resulted in Mr. Reddington's death. Appellee tendered expert witness disclosures in pre-trial proceedings, and these experts testified at trial in a manner sufficient to persuade the jury on Appellee's negligence claim. Further, Appellants did not move for a directed verdict on causation at the close of Appellee's evidence nor the close of all of the evidence.
Having closely examined the record and the law on this issue, we do not find that a different result was probable, nor that the purported error in the proceeding was of such magnitude as to be shocking or jurisprudentially intolerable but for the alleged error. Martin, supra. Accordingly, we find no manifest injustice.
Appellants next argue that the circuit court committed reversible error in improperly submitting Instruction No. 4 to the jury....
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