Kemper v. Gordon
| Decision Date | 19 June 2008 |
| Docket Number | No. 2005-SC-000306-DG.,No. 2006-SC-000077-DG.,2005-SC-000306-DG.,2006-SC-000077-DG. |
| Parties | Warren KEMPER, M.D., Appellant/Cross-Appellee, v. Barry GORDON (Individually and As Surviving Spouse and Personal Representative of The Estate of Lori Gordon, Deceased); 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), Appellees/Cross-Appellants. |
| Court | United States State Supreme Court — District of Kentucky |
This wrongful death case involves the profoundly sad death of a young mother, thirty-eight year old Lori Gordon. Barry Gordon, individually and as surviving spouse and personal representative of the estate of Lori Gordon, deceased; 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 the Gordons) allege that Lori's death was the result of a negligent misdiagnosis by, among others, Dr. Warren Kemper. Various claims filed by the Gordons were resolved, both before trial and up through the return of the jury verdict. As a result, the jury's finding of no negligence on the part of Lori's healthcare providers had an impact only on Dr. Kemper. In resolving cross-appeals, the Court of Appeals affirmed in part, reversed and remanded in part.
By granting discretionary review, this Court is being called upon to address the decision of the Court of Appeals adopting the "lost or diminished chance" doctrine of recovery — a new direction in Kentucky law. In their cross-appeal, the Gordons argue separate grounds for reversal and a new trial. Further, in the event a new trial is granted, the Gordons ask this Court to review numerous evidentiary issues.
While we reject the adoption of the "lost or diminished chance" doctrine of recovery, we conclude the Gordons have established sufficient grounds for a new trial.
In early February 1996, Lori, then thirty-eight years of age and otherwise in good health, suddenly experienced chest pain, shortness of breath, severe nausea, and dizziness. She was admitted to Baptist Hospital East for a cardiovascular evaluation which was conducted by Dr. George Stacy. When Lori's tests all appeared within normal limits, Dr. Stacy ruled out any cardiovascular cause and discharged Lori with directions to follow-up with her primary care physician if her symptoms reoccurred.
On April 14th, while seeing a movie with one of her children, Lori again experienced chest pain and nausea. She was transported by ambulance to Baptist Hospital East and examined by Dr. Charles Smith in the emergency room. Finding no medical cause for Lori's symptoms, Dr. Smith prescribed Ativan for anxiety and recommended she see an internist.
The next day, April 15th, Lori visited the office of Dr. Warren Kemper. Dr. Kemper ordered an ultrasound of her gallbladder. When the results of this test came back within normal limits, Dr. Kemper prescribed Xanax for anxiety. When Lori later phoned to inform him of her continued nausea, Dr. Kemper ordered a Computed Axial Tomography (CAT) scan of her abdomen. When the results of the CAT scan proved to be within normal limits, Dr. Kemper believed he had ruled out all possible physical causes for Lori's symptoms and reached the opinion that Lori suffered from anxiety and/or panic attacks. Dr. Kemper provided Lori with the names of several psychiatrists.
Acting on Dr. Kemper's recommendation, Lori saw Dr. Lawrence Mudd, a psychiatrist, in June and July. Dr. Mudd also diagnosed Lori with anxiety disorder and began treating her with medications. In late August of 1996, as Lori's nausea and chest pain continued, she sought out the care of a new internist, Dr. Robert Ellis. Dr. Ellis, also unable to identify a medical explanation for Lori's symptoms, continued to treat her for anxiety. Lori then turned to psychologist, Dr. Carol Massey, in September, and a new psychiatrist, Dr. Karen Head, in October. In December, Lori came under the care of yet another psychiatrist, Dr. Kenneth Davis. Throughout this time, each of Lori's healthcare providers continued to treat her for anxiety and/or panic attacks.
Lori's symptoms persisted, and on December 11, 1996, she was again taken to the emergency room at Baptist Hospital East complaining of chest pain. Lori was seen in the emergency room by Dr. Theodore Ivanchek. When a medical cause for her symptoms could not be determined, Lori was released. On December 21, 1996, Lori again went to the emergency room. On this occasion, she was examined by Dr. Jim Sharp. Once Dr. Sharp ruled out any possible cardiac causes, he released Lori with the recommendation that she follow-up with her primary care physician.
Lori saw Dr. Ellis on December 27, 1996. In addition to her symptoms of nausea and chest pain, Lori described coughing up blood, discomfort in the region of her left chest, and weight loss (by this time she was down to 117 pounds). Once again, Lori underwent a cardiac evaluation by Dr. Stacy.
In January of 1997, Dr. Ellis confirmed Lori had an enlarged lymph node and an unidentified mass on her neck. Dr. Ellis referred Lori to a surgeon, Dr. Chipman, who performed a biopsy. On February 3, 1997, Dr. Chipman informed Lori that both masses contained carcinoma, and the next day she was admitted to Alliant Hospital under the care of Dr. Don Stevens. A CAT scan of her abdomen and pelvis revealed extensive adenopathy. The diagnosis at that time was metastasized gastric (stomach) cancer.
Sadly, on January 13, 1998, Lori died as a result of complications from gastric cancer. Prior to her death, she had filed claims against Dr. Kemper and others. However, at the time of trial, all of her claims had been resolved with the exception of those against Drs. Kemper, Ellis, and Mudd. After the case was submitted to the jury, but before the verdict was returned, the Gordons reached settlements with Drs. Ellis and Mudd. The jury was not informed of the settlements and eventually returned a verdict in favor of all three medical providers. On April 3, 2002, the circuit court entered judgment pursuant to the jury verdict and dismissed all claims against Dr. Kemper.
We first address the lost or diminished chance doctrine adopted by the Court of Appeals as a basis for its reversal. In challenging the Court of Appeals' decision, Dr. Kemper points out that this doctrine has never been adopted by Kentucky courts. Further, he argues it is neither a natural extension of current Kentucky law, nor should it be adopted as a matter of public policy.
At the trial, the jury was required to make the traditional finding in malpractice cases. The instruction, in pertinent part, asked:
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?
The instructions requested by the Gordons are at the heart of the lost or diminished chance issue. First, the Gordons requested that the jury make a finding as to whether the breach of the doctor's duty was a substantial factor "in causing Lori to lose a measurable chance of surviving her cancer[.]" Alternatively, the Gordons asked that the jury decide whether the breach of the doctor's duty was a substantial factor "in delaying Lori Gordon's diagnosis and treatment[.]" The Gordons' proposed instructions, which were rejected by the trial court, essentially allowed the jury to compensate Lori for her lost or diminished chance of survival due to the late diagnosis.
A significant difference exists between the two concepts. When applying the all or nothing principle — as was done in this case — the jury is required first to find that the doctor deviated from the standard of care appropriate for the case, and then find that such failure was a substantial factor in causing injury. Here, the injury was the death of Lori Gordon. Thus, under the all or nothing approach, the Gordons would have been required to prove within a reasonable probability that Lori would have recovered or survived absent the doctor's negligent conduct. Under the lost or diminished chance doctrine, the Gordons would not have been required to prove that the misdiagnosis was, in fact, a substantial factor in causing Lori's death. Rather, the Gordons would have only been required to show that it diminished Lori's chance for recovery or survival.
In other words, under the all or nothing rule, the compensable injury in this case would be Lori's death resulting from the cancer. Under the lost or diminished chance doctrine, however, the compensable injury would be Lori's lost opportunity of recovery or survival from the cancer. The difference in these two doctrines is drastic. Under the traditional all or nothing rule, the Gordons would only recover if they could show within a reasonable probability that Dr. Kemper's failure to diagnose Lori's stomach cancer caused her death. Here, the jury found that it did not. Had the jury been given a lost or diminished chance instruction, however, the Gordons could have recovered on a proportional basis for any lost or diminished chance of survival found by the jury.
If the jury had been allowed to find within a reasonable probability that had Lori's cancer been diagnosed on her first visit to Dr. Kemper her chance of recovery would have been 30%, but that at the actual time her cancer was finally discovered her chance of recovery had become only 5%, the Gordons would then have been...
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