Sommerkamp v. Linton
| Decision Date | 18 September 2003 |
| Docket Number | No. 2001-SC-0431-DG.,No. 2001-SC-0438-DG.,No. 2001-SC-0442-DG.,2001-SC-0431-DG.,2001-SC-0438-DG.,2001-SC-0442-DG. |
| Citation | 114 S.W.3d 811 |
| Parties | T. Greg SOMMERKAMP, M.D., Appellant, v. Susan R. LINTON (Roberts), Appellee. Florence Medical Arts, Inc., Appellant, v. Susan R. Linton (Roberts), Appellee. E. Douglas Baldridge, M.D., Appellant, v. Susan R. Linton (Roberts), Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
This appeal is from a decision of the Court of Appeals which reversed a judgment based on a jury verdict for the defense in a medical malpractice action and remanded the case for a new trial.
The principal issue is whether the interests of the various appellants in the medical malpractice action against them should be considered antagonistic for the purpose of CR 47.03 and, therefore, entitle them to separate peremptory challenges.
Other issues raised by Sommerkamp are whether principles of comparative negligence and apportionment obviate the need to file cross-claims against individuals who have already been made parties to the action where independent acts of negligence are alleged; whether the Court of Appeals erred in concluding that the absence of cross-claims weighed in favor of a finding of an absence of antagonistic interests; and whether decisions from other jurisdictions support a conclusion in this case that each defendant should be treated separately for peremptory challenges.
Other issues framed by Florence Medical Arts, Inc., are whether the Court of Appeals substituted its judgment for that of the trial court in determining whether antagonistic interests exist for purposes of peremptory challenges in the absence of an abuse of discretion; and whether the Court of Appeals incorrectly applied CR 47.03 and the relevant case law.
Other points presented by Baldridge include whether the codefendants shared a common theory of the case and whether the Court of Appeals' reversal on such grounds was erroneous; whether the Court of Appeals conclusion that the finding of liability on the part of one of the defendants would not necessarily relieve the others from liability is erroneous; whether the determination that the co-appellants treated Linton for one elusive ailment is erroneous; whether considering the relevant factors at the time of jury selection, the defendants had antagonistic interests; and whether the decision of the circuit court was clearly erroneous, and therefore suitable for reversal by the Court of Appeals.
Linton responds that where co-parties take identical trial positions and share the same theory of the case, their interests are not antagonistic and they are not entitled to additional peremptory challenges. She asserts that co-defendants who do not file cross-claims and share the same theory of the case are not antagonistic and that Kentucky apportionment law does not make co-defendants inherently antagonistic. Linton also claims that the defendants created a community of interests by their actions giving rise to the lawsuit and by failing to file cross-claims at trial. Finally, she asserts that the Court of Appeals properly reviewed the decision of the trial court.
On December 28, 1992, Susan Linton, now Susan Linton Roberts, developed pain in her left forearm at work. From December 1992 through June 1993, physicians at Florence Medical Arts, Inc., treated her with medication, physical therapy and arm splints, but her pain persisted. Subsequently, they referred her to Dr. T. Greg Sommerkamp, a hand surgeon, for examination and consultation. He concluded that she suffered from overuse tendonitis of the left forearm and advised her to continue the treatments prescribed by Florence Medical Arts. Dr. Sommerkamp also scheduled Linton for an EMG nerve study with a neurologist on June 14 and scheduled a return visit to his office for June 21.
During the night of June 12, 1993, Linton's pain and discomfort increased in her forearm. She notified Florence Medical Arts of her condition the following day and was told to come in the next morning. At that time, she was examined and her condition was found to be essentially normal. The examining physician advised Linton to return to work. Later that afternoon, the neurologist performed the scheduled EMG nerve study and the results were normal. As a result, Dr. Sommerkamp advised Linton to try rest, elevation, splinting and pain medication. He rescheduled her appointment from June 21 to June 16 and told her to call if the pain persisted or worsened.
The pain did increase and Linton contacted her family doctor to report it and she was advised to go to the emergency room at St. Elizabeth Medical Center where she was initially treated by Dr. Harry Mills. He noted that she was experiencing a vascular phenomenon and he contacted Dr. Sommerkamp to discuss the matter. Dr. Sommerkamp advised that a vascular surgeon should be contacted to perform an arteriogram if the condition did not improve within 30 minutes.
The condition did not improve and Dr. Mills contacted Dr. Baldridge, a vascular surgeon, to examine the patient. On his orders, an arteriogram was performed on June 15. It revealed a clot in the brachial artery of the patient's left arm. As a result of the arteriogram, the patient also developed a clot in her right foot. After receiving heparin, intended to thin the blood and stop further clotting, Linton underwent surgery to remove the clots in her arm and foot. Unfortunately, the first surgery was unsuccessful because blood flow failed to reach both extremities due to abnormal clotting. Dr. Baldridge performed a second surgery which also failed.
After discussing the situation with hematologists, Dr. Baldridge concluded that Linton suffered from a rare condition called heparin-induced thrombocytopenia or "HIT." Due to the complications, doctors amputated her right foot, and later removed her left thumb and part of her left finger.
Linton sued Florence Medical Arts, Inc., and Drs. Sommerkamp and Baldridge claiming in separate causes of action that they failed to appropriately diagnose and treat a work-related soft-tissue strain to her left forearm. Each defendant obtained separate counsel and filed separate answers. She also sued St. Elizabeth Medical Center which settled with Linton for $100,000 prior to trial. A three-week jury trial in the circuit court resulted in a verdict of 9 to 3 for the remaining codefendants. The Court of Appeals reversed the jury verdict stating that the trial judge erred in granting separate peremptory challenges to the defendants. This Court accepted discretionary review.
The Court of Appeals should not substitute its judgment for that of the trial judge in determining whether antagonistic interests exist for the purpose of awarding peremptory challenges in the absence of an abuse of discretion. Here, the trial judge reached a well-reasoned decision based on established precedent, and there is no basis for a finding of an abuse of discretion or any clear error. The trial judge held a pretrial conference on the issue of peremptory challenges and made a specific finding that the antagonism existed between the defendants. The trial judge based his decision on a number of factors that weighed in favor of antagonism. The defendants were charged with separate acts of negligence, were represented by separate counsel and had individual theories of the case and apportionment of fault issues. These reasons were set out in an order issued to all parties.
On appeal, the question is not whether the reviewing court would have decided the issue differently, but whether the findings of fact are clearly erroneous, the opposite result is compelled or the trial judge abused his discretion. See Cherry v. Cherry, Ky., 634 S.W.2d 423 (1982); ARA Services, Inc. v. Pineville Community Hospital, Ky.App., 2 S.W.3d 104 (1999). The Court of Appeals incorrectly cited Bowling Green Municipal Utilities v. Atmos Energy Corp., Ky., 989 S.W.2d 577 (1999). In that case, this Court remanded a matter to the trial court for retrial because it had failed to make a finding that there were antagonistic interests among the plaintiffs, noting that "... the exceptions of CR 47.03 only permit additional strikes when the interests of the parties are antagonistic or when extra jurors are called ..." Id. at 579. Here, it is clear that the trial judge specifically found that the interests of the codefendants were antagonistic, and thus complied with the requirements of CR 47.03. Bowling Green Municipal Utilities, supra, supports the reasoning of the trial judge to award separate peremptory challenges.
In pertinent part, CR 47.03 provides that:
1) In...
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