Thomas v. Univ. Med. Ctr., Inc.

• Decision Date: 20 August 2020
• Docket Number: 2018-SC-000454-DG
• Parties: Dennis THOMAS, as Administrator of the Estate of Glenda Thomas, Deceased, and Dennis Thomas, Individually, Appellant v. UNIVERSITY MEDICAL CENTER, INC. d/b/a University of Louisville Hospital; Neurosurgical Institute of Kentucky, P.S.C. ; Todd W. Vitaz, M.D., Sarah C. Jernigan, M.D., and Aasim Kazmi, M.D., Appellees
• Court: United States State Supreme Court — District of Kentucky

620 S.W.3d 576

Dennis THOMAS, as Administrator of the Estate of Glenda Thomas, Deceased, and Dennis Thomas, Individually, Appellant

v.UNIVERSITY MEDICAL CENTER, INC. d/b/a University of Louisville Hospital; Neurosurgical Institute of Kentucky, P.S.C. ; Todd W. Vitaz, M.D., Sarah C. Jernigan, M.D., and Aasim Kazmi, M.D., Appellees

2018-SC-000454-DG

Supreme Court of Kentucky.

AUGUST 20, 2020

COUNSEL FOR APPELLANT: Thomas Wesley Faulkner, Faulkner Law Offices.

COUNSEL FOR APPELLEE, UNIVERSITY MEDICAL CENTER, INC. D/B/A UNIVERSITY OF LOUISVILLE HOSPITAL: Beth Hendrickson McMasters, Sara Clark Davis, McMasters Keith Butler, Inc.

COUNSEL FOR APPELLEES, NEUROSURGICAL INSTITUTE OF KENTUCKY, PSC; TODD W. VITAZ, M.D.; SARAH C. JERNIGAN, M.D.; AND AASIM KAZMI, M.D.: John Witt Phillips, Patricia Colleen Le Meur, Katherine Tipton Watts, Phillips Parker Orberson & Arnett, PLC.

OPINION OF THE COURT BY JUSTICE KELLER

Dennis Thomas, in his capacity as Administrator of the estate of his deceased wife, Glenda Thomas, and in his individual capacity, appeals the decision of the Jefferson Circuit Court to exclude from evidence a Root Cause Analysis ("RCA") and to grant a directed verdict in favor of Neurosurgical Institute of Kentucky, P.S.C. ("NIK"). The Court of Appeals affirmed the decision of the Jefferson Circuit Court. Having reviewed the record and considered the arguments of the parties, we hereby affirm the decision of the Court of Appeals, though for different reasons.

I. BACKGROUND

On August 15, 2008, fifty-year-old Glenda Lee Thomas underwent an anterior cervical discectomy

and fusion procedure, which required a surgical incision on her neck. The surgery was performed at University Medical Center, Inc. ("UMC") by Dr. Aasim Kazmi, a sixth-year neurosurgical resident, under the supervision of Dr. Todd Vitaz, the attending surgeon.

After the operation, Mrs. Thomas was transported to the post-anesthesia care unit ("PACU"). She arrived at approximately 2:30 PM. The PACU record indicates that her breathing was unlabored and regular. At around 5:00 PM that day, Mrs. Thomas was discharged from the PACU and transferred to the medical floor. The PACU records indicate that, at the time of discharge, she was in good condition and oriented, with clear speech and controlled pain.

At approximately 8:00 PM, a nurse noted in Mrs. Thomas's chart that she suffered from dyspnea (shortness of breath), labored breathing, and pursed lips. Soon after, Dr. Sarah Jernigan, a fifth-year neurosurgical resident, examined Mrs. Thomas. Dr. Jernigan noted swelling in Mrs. Thomas's neck and complaints of worsening shortness of breath. However, Dr. Jernigan also noted that Mrs. Thomas's speech was fluent, she did not require increased oxygen, and she was not short of breath during conversation. Dr. Jernigan further noted that a firm hematoma

, three to four centimeters at its largest diameter, was centered on the neck incision. Dr. Jernigan ordered a steroidal drug and an x-ray.

At approximately 9:00 PM, after the x-rays were completed, Dr. Jernigan returned to Mrs. Thomas's bedside. Jernigan noted that Mrs. Thomas was now wheezing, "having more difficulty breathing," and could no longer carry on a conversation. Dr. Jernigan ordered Mrs. Thomas back to the operating room for wound

exploration.

The anesthesiology resident then made his way to Mrs. Thomas's room to perform a pre-operative assessment of Mrs. Thomas. As he arrived on her floor, Dennis Thomas, Mrs. Thomas's husband, ran out of her room, stating that "she can't breathe." The anesthesiologist and Dr. Jernigan went immediately to Mrs. Thomas's bedside and began using an AMBU bag

, a manual resuscitator. The doctors also called a Code 900 and opened the neck incision to evacuate the hematoma. The Code team arrived but struggled to intubate Mrs. Thomas. She was taken to the operating room for a tracheostomy and exploration of the neck wound.

Unfortunately, Mrs. Thomas suffered from anoxic encephalopathy

, or brain injury from lack of blood flow. She passed away a few days later, after supportive care was withdrawn.

Dennis Thomas, in his capacity as administrator of his wife's estate and in his individual capacity, filed a medical negligence suit against UMC, Drs. Vitaz, Jernigan, and Kazmi, and NIK, a private neurosurgery

practice of which Dr. Vitaz was a member.¹ He later added claims of negligent training and supervision.

During discovery, UMC revealed the existence of a "Root Cause Analysis and Action Plan."² This RCA report consists of a chart, in which a series of questions are asked and answered. For example, beside a box listed "Equipment factors" is a question: "How did the equipment performance affect the outcome?" The response listed on the RCA chart is "None." When asked if equipment performance was a "Root Cause," the response is "N" or no. The RCA asks a series of similar questions, such as "What factors directly contributed to the outcome?" and "To what degree was the physical environment appropriate for the processes being carried out?"

At issue in this case is the response to the question "What human factors were relevant to the outcome?" The reply to this question states, "Medical management of airway in postoperative patient." When asked if this was a root cause, the response is "N" or no. However, in response to the question "Take action?" the report references "1," or Action Plan Item No. 1. The Action Plan is attached to the RCA. Action Plan Item No. 1 states, under the "Risk Reduction Strategies" category, "Respiratory/Airway/Assessment Skills: Inservice education for nursing staff and surgical resident staff to recognize signs and symptoms of mechanical airway obstruction

." Under the "Responsible Person(s)" heading, the response is "Nursing Education Residency Coordinator; Department of Neurosurgery and Department of Anesthesia." Under the "Measures of Effectiveness" heading, the response is "Measure: Inservice education will be provided in November 2008." Finally, under the "Evaluation Schedule" heading, it is noted that "100% of individuals involved in incident will have inservice education by Nursing Education or Attending-level for Department of Neurosurgery residents and Anesthesia residents." Later, depositions of the individuals involved in Mrs. Thomas's care revealed that those individuals did not receive the recommended inservice training.

UMC ultimately filed a motion in limine to exclude the RCA report as a subsequent remedial measure under Kentucky Rule of Evidence ("KRE") 407. By order dated January 19, 2016, the trial court granted that portion of UMC's motion relating to the RCA report. The court explained, however, that "in keeping with KRE 407, the Court recognizes that there may be circumstances under which information contained in the Root Cause Analysis and Action Plan may be, or become, admissible." The trial court directed Thomas's counsel to first approach the bench "to discuss the application of KRE 407 outside the presence of the jury," should such a situation arise.

Thomas later sought clarification of the trial court's ruling, requesting that the RCA be admissible under KRS 411.186(2)(e)³ as post-incident conduct in support of his claim for punitive damages. By order dated June 16, 2016, the trial court explained,

Insofar as this proposed use [under KRS 411.186(2)(e) ] seems to be incongruous with the public policy underlying the subsequent remedial measures rule codified under KRE 407, this was not the particular circumstance the Court had in mind when issuing the previous ruling. Be that as it may, [the] Court nevertheless continues to appreciate that the information developed/revealed in the course of the RCA may be relevant, probative and admissible. However, as is the case in every case, the Court is obliged to weigh the probative value of any such information against any attendant prejudicial impact.

In the instant case, the fact that an RCA was conducted is of no evidentiary value. The information developed/revealed in the course of the RCA is of minimal probative value in terms of the allegation that Mrs. Thomas’ [sic] death was the result of negligent conduct by the Defendants. Rather, and somewhat morbidly, the probative value of same lies in a case where someone dies under similar circumstances after the Defendants’ RCA in Mrs. Thomas’ [sic] case. Were this that case, the Court would be obliged to permit the Plaintiff to introduce evidence from the RCA. Because it is not , and in light of the prejudicial impact associated with the information, the Court is not inclined to revisit its previous ruling excluding same from the Plaintiff's case-in-chief.

The trial court noted, however, that "the information may be used to impeach or rebut testimony offered or elicited by the Defendants."

The matter proceeded to an eight-day jury trial in June 2016. At the close of evidence, the court granted a directed verdict in favor of NIK. NIK, a private neurosurgery

practice, had been sued for the negligence of its agents, as well as its own negligent training and supervision of neurosurgical residents Drs. Kazmi and Jernigan. The trial court found that insufficient evidence had been presented to support these claims.

The jury returned verdicts in favor of the remaining defendants. Thomas moved for a new trial, arguing that the RCA was improperly excluded from trial. The trial court denied the motion.

Thomas then appealed to the Court of Appeals. He argued that the trial court improperly precluded use of the RCA as substantive evidence of negligence and as impeachment evidence. The court affirmed the circuit court's judgment. In doing so, it held, "As a general matter, ‘formulating a plan to require additional training’ qualifies as a ‘subsequent measure’ within the plain meaning of [ KRE 407 ]." The Court of Appeals cited no authority to support this statement, and it is unclear from what source the quoted portions originate.

The Court of Appeals then explained that UMC's ...