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Trover v. Estate of Burton

Supreme Court of Kentucky

February 20, 2014

DR. PHILIP C. TROVER APPELLANT
v.
ESTATE OF JUDITH BURTON AND TROVER CLINIC FOUNDATION, INC. APPELLEES And THE TROVER CLINIC FOUNDATION, INC., D/B/A REGIONAL MEDICAL CENTER OF HOPKINS COUNTY APPELLANT
v.
ESTATE OF JUDITH BURTON AND PHILIP C. TROVER, M.D. APPELLEES

ON REVIEW FROM COURT OF APPEALS CASE NOS. 2009-CA-001595-MR, 2009-CA-001726-MR AND 2009-CA-001735-MR HOPKINS CIRCUIT COURT NOS. 04-CI-00225 AND 05-CI-00932

COUNSEL FOR APPELLANT DR. PHILIP C. TROVER: John Wm (Bill) Graves Ronald Sheffer Allison Brooke Grant

COUNSEL FOR APPELLANT THE TROVER CLINIC FOUNDATION, INC.: Donald Kenneth Brown, Jr. Byron Lee Hobgood Michael Brian Dailey Katherine K. Vesely

COUNSEL FOR APPELLEE ESTATE OF JUDITH BURTON: Roger Newman Braden Thomas Lawrence Hicks John C. Whitfield

COUNSEL FOR AMICUS CURIAE KENTUCKY JUSTICE ASSOCIATION: Kevin Crosby Burke Paul A. Casi, II Jeffrey Wayne Adamson

OPINION

ABRAMSON, JUSTICE

Judith Burton, a resident of Clay, Kentucky, brought suit against Dr. Philip Trover and the Trover Clinic Foundation (TCF) in the Hopkins Circuit Court alleging that Dr. Trover, a radiologist, misread computed tomography scans (CT scans or CTs) of her lungs and thereby delayed the diagnosis of her lung cancer. She further alleged that TCF, Dr. Trover's employer, [1] was vicariously liable for Dr. Trover's alleged negligence and was negligent itself in credentialing, i.e., granting staff privileges to, Dr. Trover. Prior to trial Judith Burton died, and her Estate revived the complaint only with respect to TCF. TCF thereupon impleaded Dr. Trover, and the matter went to trial in that posture. Following the three-week trial four days of which were devoted to selecting the jury-and a jury verdict for Dr. Trover, the trial court dismissed all of the Estate's claims. The Estate then appealed to the Court of Appeals. That Court, although affirming on all other grounds, concluded that the trial court erred by not allowing the Estate to cross-examine Dr. Trover regarding the status of his Kentucky medical license. Concluding further that the error was not harmless, the Court of Appeals reversed the trial court's judgment and remanded for additional proceedings. Dr. Trover and TCF then sought discretionary review in this Court, which review we granted, in large part in order to consider the Court of Appeals' recognition of a new cause of action against a hospital for"negligent credentialing." As it happens, our review convinces us that the trial court's evidentiary ruling was not an abuse of its discretion, as held by the Court of Appeals, and so we are constrained simply to reinstate the trial court's judgment and to leave for another day consideration of a negligent credentialing cause of action.

RELEVANT FACTS

Burton's suit was one of some forty-nine brought against Dr. Trover in the wake of allegations by Dr. Neil Kluger, an oncologist at the Regional Medical Center's Mahr Cancer Center, that Dr. Trover had poor practice habits and was not a reliable reader of mammograms and other diagnostic radiographic images. Dr. Kluger's allegations, which commenced in early 2004, were addressed to the Medical Center's Medical Executive Committee, to TCFs Board of Governors, and to the Kentucky Board of Medical Licensure. The allegations were soon made public and received considerable attention from news media in the region-hence the trial court's painstaking efforts to seat the jury.

The Medical Executive Committee investigated Dr. Kluger's allegations by questioning physicians who made frequent use of the Medical Center's radiology services, by questioning other employees in the radiology department, and by submitting selected imaging studies performed by Dr. Trover about which questions had been raised-both mammographic and non-mammographic studies-to an outside reader for review. In the Committee's view, all of these lines of inquiry raised concerns that, although "well trained and capable, " Dr. Trover lacked "consistent diligence." The Committee was also concerned by the fact that Dr. Trover typically interpreted more than 30, 000 radiological examinations per year, whereas, according to one surveying group at least, the average workload for a full time radiologist is 12, 800 per year. In April 2004, the Executive Committee recommended to the Board of Governors that Dr. Trover's clinical privileges be revoked and his membership on the Medical Staff terminated, subject to reinstatement upon certain conditions.[2] Subsequently, TCF undertook a randomized review of some 10, 000 of Dr. Trover's interpretations from 2003 and 2004, and that review, according to TCF, indicated that the rate of discrepancy between Dr. Trover's interpretations and those of the reviewers was "well within the standard of care."

The Kentucky Board of Medical Licensure, after receiving a grievance from Dr. Kluger, investigated the matter by contacting the Regional Medical Center to obtain additional information and by retaining consultants. This culminated in a Complaint against Dr. Trover and an Emergency Order of Suspension on July 14, 2005. By that point, Dr. Trover had not practiced in Kentucky for almost a year, having resigned from the Regional Medical Center in August, 2004 and resumed practice in Michigan. He contested the Board's findings, maintaining that Dr. Kluger's allegations were not true and were part of "a malicious effort to harm him" personally and professionally. He presented his own consultants, three Board-certified radiologists, who contradicted the Board's consultants' findings and concluded that Dr. Trover was competent and well-qualified. The matter was eventually resolved through an informal resolution process that produced an April 13, 2006 Agreed Order. That order was later replaced with a substantially similar Amended Agreed Order of May 9, 2007. The latter Order updated the status of the matter by reflecting that Dr. Trover had completed an Education Plan outlined by the Board.

The May 2007 Amended Agreed Order is the licensure action that was in issue at trial. It addressed four major areas of inquiry: Dr. Trover's reading of CT scans; his reading of mammograms; the volume of readings performed by Dr. Trover annually; and the intracranial interventional procedures he performed as a physician Board certified in radiology and interventional radiology. Only the reading of CT scans and the volume of readings are arguably relevant to this matter. The relevant portions of the Amended Agreed Order state as follows:

5. A Board Consultant, Board Certified in Radiology with
Certificate of Added Qualifications in Neuroradiology, was retained to review diagnostic radiographic studies and interventional procedures performed by the licensee. The Consultant found the diagnosis in Patient As case, where the licensee missed an instance of recurrent colon cancer, to be below the expected standard of radiographic care and skills within the Commonwealth of Kentucky. The Consultant noted that in the case involving Patient B, the licensee reviewed the CT scan on more than one occasion and yet “Failed to see a mass of 16 centimeters in diameter." The Consultant added, "[a]though a precise identification of the type of mass is not possible, failure to appreciate a lesion of this size is far below the expected standard of radiographic care and skills within the Commonwealth of Kentucky." In addition to patients A and B, the Board Consultant reviewed eight (8) additional diagnostic ...

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