Quattrocchi v. Nicholls
| Decision Date | 05 January 2018 |
| Docket Number | NO. 2016-CA-000428-MR & NO. 2016-CA-000503-MR,2016-CA-000428-MR & NO. 2016-CA-000503-MR |
| Citation | 565 S.W.3d 622 |
| Parties | Ann D. QUATTROCCHI, Appellant/Cross-Appellee v. Paul NICHOLLS, M.D., Appellee/Cross-Appellant |
| Court | Kentucky Court of Appeals |
BRIEF FOR APPELLANT: Thomas K. Herren, Lexington, KY.
BRIEF FOR APPELLEE: David S. Strite, Benjamin J. Weigel, Louisville, KY.
BEFORE: DIXON, JOHNSON, AND MAZE, JUDGES.
This appeal and cross-appeal arise from a judgment of the Fayette Circuit Court confirming a jury verdict in favor of Paul Nicholls, M.D., and dismissing the medical negligence claim brought by Ann Quattrocchi. Ann argues that the trial court improperly excluded evidence of a surgical incident which led to her sciatic nerve palsy
. As the evidence of record shows exclusion of the evidence and the failure to grant a continuance amounted to an abuse of discretion, we reverse and remand.
In October 2007, the Appellant, Ann Quattrocchi, had hip replacement surgery at Central Baptist Hospital in Lexington, Kentucky. The hospital is not a party to this action. Dr. Paul Nicholls was the operating surgeon. When Ann awoke from surgery, her leg was paralyzed. She experienced a condition that is known as sciatic nerve palsy
, a rare complication of total hip replacement surgery. Her leg has remained paralyzed since and she experiences continuous pain and discomfort, resulting in many adverse effects in her daily life. Ann believes her nerve palsy was the result of a second procedure she did not consent to that was done to correct a perceived leg length discrepancy. It is alleged her leg was dropped in preparation for this second surgery, when the candy cane device used to stabilize her leg was improperly attached to the table and fell, pulling her leg with it.
In order to better understand the course of events in this case, we have set out a timeline of the significant events of this case, followed by a detailed discussion of those events. The record indicates:
After her surgery, but prior to her suit, Ann requested all of her records from the Central Baptist Hospital Custodian of Medical Records. When Ann received these records, there was no indication of the leg drop. Later, in February 2008, Ann’s counsel requested Ann’s records from Kentucky Orthopedic and Hand Surgery (hereinafter "KOHS"), where Dr. Nicholls practiced. None of these records revealed any indication of the candy cane incident in which Ann’s leg was dropped.
Ann had worked as a nurse at the hospital for over thirty years. By July 2008, Ann had heard a rumor at the hospital from a physician assistant who had been in the operating room that her leg was dropped during surgery when the candy cane device became detached from the table. As a result, during an office visit with Dr. Nicholls on July 1, 2008, Ann asked him if her leg had been dropped during surgery. According to Ann, no direct answer was given to her and she later testified by avowal that Dr. Nicholls seemed to disregard her question as insignificant.
Ultimately, Dr. Nicholls’s office note was only obtained by Ann’s counsel in January 2016, three weeks before trial, when KOHS inadvertently produced the note in response to counsel’s request for "patient accounts" pertaining to billing and insurance. The billing information was needed for trial purposes to reflect damage demands for Ann. This was the first time Ann’s counsel saw the written note that confirmed the rumor she had heard.
Prior to receiving this note, Ann and Ann’s counsel made several efforts to substantiate the case for the leg drop incident. First, through a nurse paralegal, Ann’s counsel contacted the Nurse Anesthetist who was in the room during Ann’s surgery. When asked if Ann’s leg was dropped during surgery, the Nurse Anesthetist responded that nothing unusual had happened during the surgery. Second, in Dr. Nicholls’s sworn deposition, he was asked if he knew anything about Ann’s leg being dropped in surgery. He responded that he didn't recall, and didn't know whether her leg was dropped or not.
Ann’s counsel then continued asking Hench questions about the surgery. She further explained that, she didn't have a great memory of exactly what happened, but she did remember "that the leg did fall."
On February 4, 2016, Dr. Nicholls’s counsel filed a motion in limine to strike Hench’s testimony, arguing that the drop was not relevant (was not a deviation from standard of care and did not cause damage). The trial court sustained the motion to exclude Hench’s testimony regarding the leg drop, concluding that her testimony was not definitive enough for the plaintiff’s expert to render an opinion concerning standard of care and causation. However, the trial court emphasized the court was only ruling on the issue regarding Hench, and did indicate it would likely allow Ann’s counsel to address the July 2008 office note with Dr. Nicholls, as it was his own office note.
On February 5, 2016, Dr. Hugate, Ann’s expert, testified by video in Denver, Colorado. His testimony was essentially the same as his deposition testimony. However, this time he used the fact of the drop as an additional fact supporting his opinion that the injury to Ann’s leg occurred after completion of the first stage of surgery.
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