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Bryan v. Correctcare-Integrated Health, Inc.

Court of Appeals of Kentucky

November 8, 2013

VIRGINIA BRYAN, as Administratrix of the ESTATE OF MARTY LEWIS McMILLEN, deceased, and DOROTHY CAMENZIND, Mother and Next Friend of MARTY LEWIS McMILLEN, JR.-CAMENZIND, an infant, APPELLANTS
v.
CORRECTCARE-INTEGRATED HEALTH, INC. and GLORIA HERRERA, LPN, APPELLEES

Page 521

APPEALS FROM OLDHAM CIRCUIT COURT. HONORABLE KAREN A. CONRAD, JUDGE. ACTION NO. 08-CI-01094.

AFFIRMING IN PART, REVERSING IN PART, AND REMANDING.

BRIEF FOR APPELLANTS: Daniel W. Fendley, LaGrange, Kentucky.

BRIEF FOR APPELLEES: James M. Mooney, Frank Miller, Jr., Nicholasville, Kentucky.

BEFORE: COMBS, NICKELL, AND STUMBO, JUDGES. ALL CONCUR.

OPINION

Page 522

COMBS, JUDGE

Virginia Bryan, as Administratrix of the Estate of Marty Lewis McMillen, and Dorothy Camenzind, mother and next friend of McMillen's minor son, appeal the judgment and supplemental judgment entered in favor of CorrectCare-Integrated Health, Inc., (" CorrectCare" ) and Gloria Herrera, L.P.N., following a jury verdict in the Oldham Circuit Court. Bryan and Camenzind contend that the trial court erred by denying their motion for a directed verdict and by improperly instructing the jury. They also assert error in the award of $4,397.79 in costs to their opponents in a supplemental judgment. After our review, we affirm the judgment (Appeal No. 2012-CA-001500); we affirm in part and reverse and remand in part the supplemental judgment (Appeal No. 2012-CA-001921).

At the time of his death on December 24, 2006, Marty Lewis McMillen had been an inmate at the Kentucky State Reformatory (KSR), a medium security facility in LaGrange, for 32 days. There is no dispute that McMillen had suffered for many years with chronic obstructive pulmonary disease (COPD) complicated by recurrent pneumothorax. Before arriving at KSR, McMillen had been hospitalized at St. Claire Regional Medical Center in Morehead from November 15 through November 22, 2006. Upon his discharge from St. Claire, he was transferred to KSR from Little Sandy Correctional Complex in Sandy Hook. His move to KSR was approved as a medical transfer from Little Sandy because of recurrent incidents of a collapsed lung (pneumothorax).

On December 8, 2006, McMillen was taken by ambulance from KSR to the emergency room of Baptist Hospital Northeast in Louisville. For several days, attempts were made to ease McMillen's breathing by use of a chest tube. This technique proved unsuccessful.

As a consequence, McMillen underwent major surgery at Baptist Hospital East in Louisville on December 15, 2006. Dr. James Van Daalen performed a left thoractomy, wedge resection, and pleurodesis in order to stabilize McMillen's lung function. He was released from the hospital on December 18, 2006, and was returned to a transitional care ward at KSR. According to a nursing admission note, McMillen complained of " side chest pain from surgery site" when he arrived at the ward; his oxygen saturation levels were 93%.[1]

Gloria Herrera is a licensed practical nurse. She is employed by CorrectCare, a private corporation providing management support for the healthcare needs of numerous correctional facilities including KSR. In December 2006, Herrera was working at the medical unit at KSR where McMillen was recuperating from surgery.

According to her trial testimony, Herrera was assigned to the evening shift at KSR on ...


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