Lake Cumberland, LLC v. Dishman, No. 2006-CA-000136-MR (Ky. App. 4/6/2007), 2006-CA-000136-MR.
| Decision Date | 06 April 2007 |
| Docket Number | No. 2006-CA-000192-MR.,No. 2006-CA-000136-MR.,2006-CA-000136-MR.,2006-CA-000192-MR. |
| Parties | LAKE CUMBERLAND, LLC, d/b/a Lake Cumberland Regional Hospital, Appellant/Cross-Appellee. v. Scottie DISHMAN, Administrator of the Estate of Vena Dishman, Deceased; Joe Dishman, Appellees/Cross-Appellants. |
| Court | Kentucky Court of Appeals |
B. Todd Thompson, Bradley R. Hume, Sallie J. Stevens, Louisville, Kentucky, Brief and Oral Argument for Appellant.
Thomas E. Carroll, Monticello, Kentucky, Brief and Oral Argument for Appellee.
Before: LAMBERT and STUMBO, Judges; BUCKINGHAM,1 Senior Judge.
Lake Cumberland, LLC, d/b/a Lake Cumberland Regional Hospital (the Hospital), appeals from a judgment entered following a jury verdict adjudging the Hospital, through it agents and employees, negligent in its care and treatment of Vena Dishman, deceased, and awarding damages to Vena's estate and her surviving husband, Joe Dishman. For the reasons stated below, we affirm in Appeal No. 2006-CA-000136-MR and reverse and remand in Appeal No. 2006-CA-000192-MR.
Vena Dishman had a history of non-insulin dependent diabetes, chronic obstructive pulmonary disease, and colon cancer. After complaining of worsening dizzy spells for several months, Vena, age 67, was admitted to Lake Cumberland Regional Hospital on June 25, 2001, for a bilateral cartoid artery angiogram to further evaluate her condition.
The angiogram was completed at 1:30 p.m. without complication. Vena was returned to her in-patient hospital room at approximately 1:45 p.m. A post-procedure concern following an angiogram is the possibility of the patient suffering a stroke. Accordingly, the standard of care for a post-angiogram patient includes monitoring and observation for the onset of stroke symptoms. According to the appellees, Hospital employees, including Nurse Lou Ellen Ward, Vena's assigned nurse, failed to properly monitor and observe Vena during the period following the angiogram procedure.
At some point — most likely around 2:20 p.m. according to the appellees, most likely nearer to 7:10 p.m. according to the Hospital — Vena suffered a stroke. At 7:10 p.m., following a shift change, at which time Nurse Ward went off duty and Nurse Irene King came on duty and was assigned to Vena, Nurse King discovered Vena suffering from stroke symptoms. After being informed, neurologist Dr. Magdy El-Kalliny, Vena's assigned post-procedure physician, ordered a CT scan, the results of which indicated that Vena had suffered an ischemic stroke, that is, a stroke brought about by a blood clot in the arterial system.
As will be discussed further below, a "clot busting" drug known as t-PA2 is available to treat an ischemic stroke victim, but it must be administered within three hours of the onset of the stroke. The drug can substantially reduce the damage caused by a stroke, though it is successful in only about 30% of the patients who receive it. Regardless of what time the stroke occurred, the drug was not administered to Vena.
As a result of the stroke, Vena lost her ability to walk, became mentally confused, and could not use her left leg or left side. She remained a patient at the Hospital until July 18, 2001, at which time she was transferred to a nursing home. Vena died at the nursing home on July 27, 2003.
In the meantime, on May 31, 2002, Vena and Joe filed a civil complaint in Pulaski Circuit Court naming Lake Cumberland Regional Hospital as defendant. The complaint alleged that the Hospital, through its agents and employees, breached the applicable duty of care following the administration of the angiogram by failing to properly monitor Vena and by delays resulting in the loss of the opportunity to administer t-PA. Subsequent to Vena's death, her administrator, Scottie Dishman, was substituted as a party in Vena's place.
The trial was held beginning on December 7, 2004. At the conclusion of the trial, the jury found the Hospital liable under the claims brought by the plaintiffs. The jury awarded damages of $119,177.16 for past medical expenses, $500,000 for pain and suffering, and $350,000 for loss of consortium, for a total award of $969,177.16. Lake Cumberland filed a motion to alter, amend, or vacate and/or for a new trial. The trial court granted the motion insofar as it sought to reduce the award for past medical expenses to the amount actually expended by Medicaid. The motion was denied in all other respects.
On December 29, 2005, an amended judgment reducing the award for past medical expenses from $119,177.16 to $91,838.73 was entered.3 Lake Cumberland appeals on various grounds (Appeal No. 2006-CA-000136-MR), and the Dishmans cross-appeal (Appeal NO. 2006-CA-000192-MR) on the grounds that the trial court erred by reducing the award for past medical expenses.
We first address the issues raised by the Hospital in its appeal.
First, Lake Cumberland contends that it was entitled to a directed verdict because the appellees failed to establish proximate causation between its conduct and the injuries suffered by Vena. In substance, Lake Cumberland contends that the appellees failed to establish that its conduct was a substantial factor in causing injury to Vena because the medical literature establishes that the administration of t-PA benefits less than 30 percent of the stroke patients to whom it is administered, whereas the substantial factor test requires that there be greater than a 50 percent chance that its breach of duty caused Vena's injury.
When reviewing a jury verdict, the appellate court is restricted to determining whether the trial judge erred in failing to grant a motion for directed verdict. The reviewing court must consider all evidence favoring the prevailing party as true and is not at liberty to determine the credibility or weight that should be given to the evidence. Lewis v. Bledsoe Surface Mining Co., 798 S.W.2d 459, 461 (Ky. 1990). The reviewing court must draw all reasonable inferences in favor of the claimant and must refrain from questioning the credibility of the claimant and from assessing the weight that should be given to any particular item of evidence. United Parcel Service Co. v. Rickert, 996 S.W.2d 464, 468 (Ky. 1999). The appellate court is required to consider the evidence in the strongest light possible in favor of the opposing party. Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky.App. 1985). After completion of the evidentiary review, the decision must be affirmed unless the verdict rendered is "`palpably or flagrantly' against the weight of the evidence so as `to indicate it was reached as a result of passion or prejudice.'" Bledsoe Surface Mining Co., 798 S.W.2d at 461-62.
The elements of a medical malpractice action are the same as any negligence action (i.e., duty, breach, causation, and injury). Grubbs ex rel. Grubbs v. Barbourville Family Health Center, P.S.C., 120 S.W.3d 682, 687 (Ky. 2003), citing Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245 (Ky. 1992). Duty, breach, and injury are not at issue here, only causation.4
The fact . . . that a physician may have been negligent is not sufficient to render him liable, and the complaining patient must prove that the injury complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient. That the negligence of a physician was the proximate cause of injury to his patient need not be established with certainty, but probability is sufficient.
Walden v. Jones, 439 S.W.2d 571, 574 (Ky. 1968) (quoting 41 AM JUR Physicians and Surgeons Sec. 131, page 244).
Though the term "proximate cause" is still frequently used, in Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980), the Kentucky Supreme Court made clear that the test for causation in this jurisdiction is the "substantial factor" test as set forth in Restatement (Second) of Torts § 431 (1965). Thus, in combination with the reasonable probability standard as set forth in Walden, the burden upon the plaintiff in establishing causation may be stated as follows: he must demonstrate within a reasonable degree of probability that the defendant's breach of duty was a substantial factor in producing the injury.
Reasonable probability is defined as "more probable than not" or "more likely than not." See 61 AM JUR 2D Physicians, Surgeons, and Other Healers § 332 (2002); Miller v. Paulson, 646 N.E.2d 521, 522 (Ohio App. 1994). From a statistical viewpoint, reasonable probability is equated with a greater than 50 percent chance. See Dalebout v. Union Pac. R.R. Co., 980 P.2d 1194, 1199 (Utah Ct.App. 1999); Fid. & Guaranty Ins. Underwriters, Inc. v. Gary Douglas Elec., Inc., 357 N.E.2d 388, 392 (Ohio App. 1974).
Thus, the focus of our review is whether the evidence presented by the Dishmans was such that the jury could reasonably have concluded that there was a greater than 50 percent chance that the Hospital's failure to administer t-PA to Vena was a substantial factor in causing her injuries.
The expert medical testimony presented in the case was unanimous that the medical literature and peer reviewed studies establish that t-PA provides a benefit to only about 30% of the patients who receive it within the three-hour window. For example, in his videotaped trial deposition, which was played to the jury, upon cross-examination, Dr. Lawson Bernstein, the Dishmans' expert witness, conceded as follows:
Q. And you would agree with all the statistics and studies that have been done nationally and in Europe that even in the best of circumstances, the most ideal of circumstances, with appropriate patient population as determined by the physician, who are given TPA in the face of ischemic stroke, less than 30 percent of those patients get a beneficial effect from the TPA; correct?
A. That is what the literature shows, that's...
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