1 2015-2016 Kentucky Health Care Case Law UpdateAndie Brent Camden – O’Bryan Brown & Toner, PLLC

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3 Discoverable InformationBaptist Health Richmond v. Clouse & Agee 2015-SC MR Rendered September 22, 2016 Supreme Court revisits question of what, if anything is protected by PSQIA. Information required for state mandated reports not protected. Act not intended to relieve of duty to file state reports. Provider has burden of proving Act applies. In camera review required in this case. Court claims to be finding middle ground between plurality and dissent in Tibbs.

4 Punitive Damages Saint Joseph Healthcare, Inc. v. Larry O’Neil Thomas – 2014-SC DG Rendered May 5, 2016 Supreme Court unanimously upholds punitive damage award of $1,450, under EMTALA. Compensatory damages of $3,750.00 Ratio of 386:1 Troubling facts led Court to uphold ratio. Independent contractors are hospital responsibility under EMTALA. Hospital ratified conduct based on specific facts in this case.

5 INFORMED CONSENT

6 Harrington v. Argotte – 2015 WL 4597536 – 2014-CA-001050 – July 31, 2015Reversed trial court’s grant of directed verdict after plaintiff’s opening statement. Plaintiff’s counsel admitted no expert would testify on informed consent issue. Trial court’s ruling that expert testimony was required was premature. Trial court believed as plaintiff was given some information an expert was required. Court felt alleged failure to disclose risk may have been obvious to a layman. DR Granted on February 10, 2016.

7 Sargent v. Shaffer 467 S.W.3d 198 – August 20, 2015Defense verdict in Fayette county on question of alleged negligent care during laminectomy and on separate informed consent instruction. Court of Appeals affirmed verdict. Supreme Court reversed on informed consent instruction. Decision to give instruction reviewed for abuse of discretion; content of instruction de novo. Instruction needed to include all of KRS Standard of care met; and “reasonable individual” understands the hazards of treatment.

8 Kentucky Board of Medical Licensure Case

9 Bernard C. Moses, M.D. v. KBML 2014-CA-000783 – February 2, 2016 – 2016 WL 551431Doctor appealed revocation of license. He had stormed out of hearing with Board. Court held that doctor presented no evidence that the Board did not consider the record in making the decision. Hearing officer is not required to have medical background or medical training.

10 Medicaid Reimbursement

11 Cabinet HFS v. Owensboro Mercy 2015-CA-000229 – August 12, 2016 – 2016Cabinet would not reimburse for admission as it was not medically necessary. Also refused to pay for necessary services at outpatient rate. Court held that Cabinet could not deny payment at outpatient rate as it had determined actual services provided were necessary.

12 Recognition of new claim!

13 Negligent Credentialing 2016 WL 929507 – Court of Appeals – March 11, 2016Spalding v. Spring View Hospital – Marion Adams v. Lake Cumberland Reg. Hosp. – Pulaski Jones v. Spring View Hospital – Marion Court moved by the changing nature of hospitals from charitable to corporate. Hospital has independent duty to select and retain competent independent physicians. We are one of 29 states that recognize Final word? DR GRANTED – October 13, 2016

14 Long Term Care Cases

15 Extendicare Homes v. Whisman 478 S. WExtendicare Homes v. Whisman 478 S.W.3d 306 – Supreme Court – September 24, 2015 Issue of arbitration for wrongful death claims and limits on general power of attorney. Wrongful death claim belongs to estate, not decedent. Decedent can’t waive right to court for wrongful death claim before death. Furthermore, waiver of right to court for personal injury claim will not be inferred in broad power of attorney. 4 – 3 decision

16 GGNSC Frankfort, LLC v. Richardson2013-CA Rendered September 16, 2016 – Cites Whisman - Son had power of attorney for mother and signed admission forms to nursing home - Form contained arbitration agreement. - Wrongful death claim filed - Motion to compel arbitration denied and affirmed - Waiver of right to trial not inferred in broad power of attorney, must be specific.

17 Overstreet v. Kindred 479 S.W.3d 69 – Supreme Court – August 20, 2015Personal Injury and personal property claims are subject to one year limitation. These claims survive the death of a resident. Claims brought under KRS that are distinguishable from personal injury claims are subject to 5 year limitation. KRS claims do not survive death and must be brought by patient or guardian while patient is alive.

18 Richmond Health Fac. v. Clous 473 S. WRichmond Health Fac. v. Clous 473 S.W. 3d 79 – Supreme Court -- October 29, 2015 Affirmed denial of writ during discovery dispute Facility sought to protect financial data under FQAP privilege Plaintiff asserted that nursing home diverted necessary funds to enhance profits Requested financial data deemed relevant to possible punitive damage claim. Nursing home failed to show applicability of FQAP.

19 Immunity, et al.

20 Sietsema v. Adams 2015 WL 4776304 – Court of Appeals – August 14, 2015Inmate plaintiff suffered for multiple days with bowel obstruction. Jail contracted with corporation to provide inmate care. Medical Director unaware of patient prior to hospitalization. Summary judgment based on lack of expert and immunity reversed by Court of Appeals. Court applied res ipsa loquitur exception based on care giver admissions re lack of knowledge and earlier intervention.

21 Sietsema v. Adams 2015 WL 4776304 – Court of Appeals – August 14, 2015Inmate could testify to his pain and suffering caused by undisputed delay. Court also held that corporation that contracted to provide medical care was not entitled to immunity. If company did not have immunity, neither did employees.

22 Pauly v. Chang & UKMC 2014-CA-000404 – December 11, 2015 – 2015 WL 8488910Physician falls from bucket truck while trimming trees on property Prior to surgery at UKMC, dies from transected aorta Jury verdict for doctors and immunity dismissal for UKMC affirmed. Questions regarding administrators actions did not involve questions of care, thus sovereign immunity appropriate. Court declined to extend loss of parental consortium beyond the age of majority.

23 Pauly v. Chang & UKMC 2014-CA-000404 – December 11, 2015 – 2015 WL 8488910Notes form Trauma Conference/Peer Review of care not admissible even though turned over in discovery. Trauma conference “highly critical” examination – beyond standard of care Trial court also precluded plaintiff from admitting medical records of another patient with similar condition that survived, did allow to discuss. Trial court excluded testimony regarding negligence of patient with respect to bucket truck. Newspaper article final day of trial regarding malpractice in Kentucky and ER issues did not require new trial.

24 Ex parte communication with treating non-experts…

25 Caldwell v. Chauvin 2014-SC-00390 – June 11, 2015 – 464 S.W.3d 139Nothing precludes ex parte conversation with non-expert physician fact witnesses. HIPPA controls disclosure of protected information in that meeting. Court order required to allow disclosure. Physician does not have to agree to meet.

26 Loss of Chance Doctrine

27 Douglas v. Advanced Pain Medicine 2015 WL 4776251 – August 14, 2015Fayette Circuit Court granted summary judgment because Kentucky does not recognize loss of chance doctrine Court of Appeals affirmed in part and reversed in part. Summary judgment appropriate on issue of whether doctor’s alleged negligence and diagnosis delay caused terminal illness. Not appropriate on question of whether delay caused increased pain and suffering and more extensive medical care.

28 Other Medical Cases

29 Eggemeyer v. Jefferson 2015 WL 3643420 – June 12, 2015Motion for new trial denied, reversed and remanded for new trial by Court of Appeals. Case on re-trial as mistrial declared when defendant physician continually referenced insurance during first trial. Court deferred question of sanctions on defendant. New counsel obtained by defendant before second trial Trial judge orders no new legal or medical theories and new counsel agrees. (x3) In opening new counsel raises multiple new theories.

30 Eggemeyer v. Jefferson 2015 WL 3643420 – June 12, 2015Judge admonishes jury Counsel continues to violate ruling on new theories. Judge is very upset. Plaintiff never asks for mistrial. Motion for new trial denied after defense verdict $58, sanction for Defendant physician due to issues in first trial. Court of Appeals called failure to grant new trial egregious and granted new trial. Also upheld the sanctions. DR Granted March 9, 2016.

31 Norton v. Willett 2016 WL 1068464 - March 17, 2016Norton claimed privilege on certain documents. Provided to judge for in camera review. Norton filed for a writ in the interim and before an upcoming deposition. Judge provided the documents directly to counsel to keep deposition on schedule. COA denied writ Supreme Court says trial judge must respect writ process and not get in document delivery business. Remanded to COA to see what can be done. Even though documents produced, issue not moot.

32 Medical Malpractice & Divorce?

33 Bailey v. Bertram 471 S.W.3d 687 – May 14, 2015Dr. Bailey is sued by two patients after his divorce. Portion of divorce record sealed due to sensitive nature. Plaintiffs in med mal cases moved to intervene in divorce to unseal record claiming relevance of his extra-marital activities and state of mind during their treatment. Judge allows intervention and unseals – gives 21 days to petition higher court Writ filed, denied on merits by Court of Appeals Supreme Court believes intervention in error. Plaintiffs could have obtained information via other discovery. BUT – writ not the remedy, should have appealed order allowing intervention and unsealing record.

34 Procedueral Issues

35 Faller v. Goess-Saurau 2015 WL 5173444 September 4, 2015Default judgment reversed by Court of Appeals Plaintiff filed amended complaint prior to running of time to answer original complaint. Default granted on original complaint prior to service of amended complaint. Court held that filing of amended complaint before expiration of time to answer original extends that time (for answering original) to the deadline for answering the amended complaint.

36 Ky. Farm Bureau v. Conley 456 S.W.3d 814 April 2, 2015Doctrine of substantial compliance 59.05 motion filed without stating specific grounds was sufficient to toll time for filing notice of appeal. Court of Appeals dismissal reversed by Supreme Court. While failure to make motion comply with rule could result in sanctions, substantial compliance doctrine requires that it suffices to delay deadline for notice of appeal.