Pauly v. Chang

• Decision Date: 11 December 2015
• Docket Number: NO. 2014–CA–000451–MR,NO. 2014–CA–000404–MR,2014–CA–000404–MR
• Citation: 498 S.W.3d 394
• Parties: Karen Y. Pauly, Executrix of the Estate of Daryl Lynn Pauly; Karen Y. Pauly, Individually; Jean Katherine Pauly; and Patrick Kristopher Pauly, Appellants, v. Phillip K. Chang, M.D.; Timothy W. Mullett, M.D.; Raeford Brown, M.D.; Paul DePriest, M.D.; Barbara Schnapf; the University of Kentucky Medical Center; and the University Hospital of the Albert B. Chandler Medical Center, Inc., Appelles, and Phillip K. Chang, M.D.; and Timothy W. Mullett, M.D., Cross–Appellants, v. Karen Y. Pauly, Executrix of the Estate of Daryl Lynn Pauly; Karen Y. Pauly, Individually; and Jean Katherine Pauly, Cross–Appellees.
• Court: Kentucky Court of Appeals

498 S.W.3d 394

Karen Y. Pauly, Executrix of the Estate of Daryl Lynn Pauly; Karen Y. Pauly, Individually; Jean Katherine Pauly; and Patrick Kristopher Pauly, Appellants,

v.Phillip K. Chang, M.D.; Timothy W. Mullett, M.D.; Raeford Brown, M.D.; Paul DePriest, M.D.; Barbara Schnapf; the University of Kentucky Medical Center; and the University Hospital of the Albert B. Chandler Medical Center, Inc., Appelles,andPhillip K. Chang, M.D.; and Timothy W. Mullett, M.D., Cross–Appellants,

v.Karen Y. Pauly, Executrix of the Estate of Daryl Lynn Pauly; Karen Y. Pauly, Individually; and Jean Katherine Pauly, Cross–Appellees.

NO. 2014–CA–000404–MR

NO. 2014–CA–000451–MR

Court of Appeals of Kentucky.

DECEMBER 11, 2015; 10:00 A.M.

MODIFIED: DECEMBER 23, 2015; 10:00 A.M.

Discretionary Review Denied by Supreme Court September 15, 2016

Briefs for Appellants/Cross–Appellees: William R. Garmer, Jerome P. Prather, Lexington, Kentucky.

Briefs for Appellees/Cross–Appellants, Phillip K. Chang, M.D. and Timothy W. Mullett, M.D.: Steven G. Kinkel, Melanie S. Marrs, Lexington, Kentucky.

Brief for Appellees, Raeford Brown, M.D.; Paul DePriest, M.D.; Barbara Schnapf; The University of Kentucky Medical Center; and The University Hospital of the Albert B. Chandler Medical Center, Inc: Bradley A. Case, Michael C. Merrick, Stephen J. Mattingly, Louisville, Kentucky.

BEFORE: CLAYTON, COMBS, AND DIXON, JUDGES.

OPINION

DIXON, JUDGE:

Appellants/Cross–Appellees, the Estate of Dr. Daryl Lynn Pauly and his heirs, individually, appeal from a judgment of the Fayette Circuit Court following a trial wherein the jury returned a unanimous verdict in favor of Appellees/Cross–Appellants, Phillip K. Chang, M.D. and Timothy W. Mullett, M.D., in this medical malpractice and wrongful death action. Appellees, University of Kentucky Medical Center and University Hospital of the Albert B. Chandler Medical Center, Inc. (collectively “UKMC”), as well as three of its employees, Raeford Brown, M.D., Paul DePriest, M.D., and Barbara Schnapf, R.N., were dismissed prior to trial on grounds of governmental and qualified official immunity. In addition, Appellees/Cross–Appellants, Phillip K. Chang, M.D., and Timothy W. Mullett, M.D., appeal from an order of the trial court excluding the testimony of Vince Sayre, an accident reconstructionist, concerning Dr. Pauly's comparative fault in causing the accident that led to his injuries and subsequent treatment. For the reasons set forth herein, we affirm the trial court.

On December 8, 2005, Daryl Pauly, a fifty-year-old physician, was injured when a bucket truck he was using to trim trees at his home tilted, causing him to fall approximately thirty feet to the ground. Pauly's daughter was home at the time and called 911. Upon arriving at the UKMC emergency room, Dr. Pauly had a Glasgow Coma Scale score of six (6), indicating a brain injury. In addition, Dr. Pauly was diagnosed as having suffered extensive chest trauma and multiple pelvic fractures. Shortly after his arrival in the emergency room, Dr. Pauly's case was upgraded to “Trauma Alert Red” the highest level of alert, thus putting the trauma team on notice of the potential need for surgery. A head and chest CT scan was ordered; however during the course of performing the head CT to diagnose the severity of any brain injury, Dr. Pauly's condition deteriorated to the point that he had to be removed from the scanner for resuscitative efforts before the chest scan was completed.

In light of Dr. Pauly's instability and the internal bleeding coming from potentially numerous sources, Dr. Chang ordered an angiogram, which revealed that Dr. Pauly had suffered at least one tear to his aortic artery. Dr. Mullett, a cardiothoracic surgeon, then ordered Dr. Pauly returned to the emergency department for monitoring until an operating room and staff were available. However, while waiting for an operating room, Dr. Pauly went into cardiac arrest and subsequently died from a transected aorta.

On December 8, 2006, Appellants filed an action in the Fayette Circuit Court against UKMC, Dr. Brown, Dr. DePriest, and Schnapf, alleging wrongful death, loss of spousal consortium and loss of parental consortium based upon allegations that Appellees failed to diagnose his aortic injuries and get him into the operating room sooner. Subsequently on May 1, 2007, Appellants filed their complaint against Dr. Chang and Dr. Mullett. The two actions were thereafter consolidated into the instant matter. At the time of trial in January 2014, Dr. Chang and Dr. Mullett were the only two defendants remaining as all other parties had been dismissed on grounds of sovereign and governmental immunity. At the close of all evidence, the jury returned a unanimous defense verdict. Following the denial of their motion for a new trial, Appellants appealed to this Court as a matter of right. Additional facts are set forth as necessary in the course of this opinion.

Appellants first argue that the trial court erred in ruling that UKMC was entitled to dismissal on grounds of governmental immunity. Appellants contend that UKMC does not satisfy the two-prong test set forth in Kentucky Center for the Arts Corp. v. Berns, 801 S.W.2d 327 (Ky.1990), or the third prong of the analysis established in Comair, Inc. v. Lexington–Fayette Urban County Airport Corp., 295 S.W.3d 91 (Ky.2009), and is therefore not entitled to immunity. Essentially, Appellants in focusing on the test set forth in Berns, contend that UKMC cannot be immune from liability because (1) it does not operate under the control of the “central state government” and (2) it performs a proprietary rather than essential governmental function.

Contrary to Appellants' assertion, Withers v. University of Kentucky, 939 S.W.2d 340 (Ky.1997), and its progeny are binding precedent and are dispositive of this issue. In Withers, the appellants brought a claim for wrongful death against UK and physicians who were allegedly agents of UK. The claims against UK were dismissed by the circuit court based on sovereign immunity and that dismissal was affirmed by this Court. Id. at 342. On discretionary review, the Supreme Court of Kentucky was asked to determine if UK had sovereign immunity and, if it did, whether UK had waived that immunity by participating in a medical malpractice compensation fund. In finding that UK was entitled to immunity, the Court held:

Contrary to appellants' contention, the University of Kentucky precisely meets the Berns test as set forth above. While we deem it unnecessary to repeat the analysis of the statutory existence of the University of Kentucky as contained in Hutsell v. Sayre, [5 F.3d 996 (6th Cir.1993) ], it is appropriate to quote KRS [Kentucky Revised Statutes] 164.100 as follows:

The University of Kentucky located at Lexington, is recognized as established and maintained. It is the institution that was founded under the land grant of 1862 by the Congress of the United States under the corporate designation and title of “Agricultural and Mechanical College of Kentucky.” The university shall be maintained by the state with such endowments, incomes, buildings and equipment as will enable it to do work such as is done in other institutions of corresponding rank, both undergraduate and postgraduate, and embracing the work of instruction as well as research.

In addition, KRS 164.125(2) provides:

The University of Kentucky shall be the principal state institution for the conduct of statewide research and statewide service programs and shall be the only institution authorized to expend state general fund appropriations on research and service programs of a statewide nature financed principally by state funds.

The language of KRS 44.073(1) establishes the University of Kentucky as an agency of the state and KRS 446.010(31) defines “state funds” or “public funds” in such a manner as to include sums paid to the University of Kentucky Medical Center for health care sciences.

Numerous other statutes contained in KRS 164 establish unmistakably that the University of Kentucky operates under the direction and control of central state government and that it is funded from the State Treasury. The immune status of the University of Kentucky was expressly recognized in Frederick v. University of Kentucky Medical Center, Ky.App., 596 S.W.2d 30 (1980), a case involving the same statutory provision here under review, and likewise recognized in the leading case, Dunlap v. University of Kentucky Student Health Services Clinic, Ky., 716 S.W.2d 219 (1986). Even appellant virtually concedes the immune status of the University of Kentucky. Thus, on the basic question of whether the University of Kentucky is entitled to sovereign immunity, we have no reluctance to answer in the affirmative.

Id. at 343.

As do Appellants herein, the appellants in Withers argued that UK should be stripped of its immunity because its medical center performs a proprietary function in that it is nothing more than a hospital which is in full competition with and performs the same function as private hospitals. The Withers Court rejected this argument, explaining,

The answer to this contention is simple. The operation of a hospital is essential to the teaching and research function of the medical school. Medical school accreditation standards require comprehensive education and training and without a hospital, such would be impossible. Medical students and those in allied health sciences must have access to a sufficient number of patients in a variety of settings to insure proper training in all areas of medicine. Such is essential to the mandate of KRS 164.125(1)(c).

Id.

Although Withers only specifically addressed UK's immunity, it is clear from a reading of the opinion as a whole that UK's immunity extends to UKMC. In fact, the Withers Court noted that UKMC was essential to UK's mandate to provide postdoctoral studies in medicine as set forth in KRS 164.125(1)(c), id. at 343, which is indicative that UKMC has...