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Branham v. Rock

Supreme Court of Kentucky

December 18, 2014

IRA BRANHAM, INDIVIDUALLY, AND AS ADMINISTRATOR OF THE ESTATE OF PEGGY BRANHAM, DECEASED, APPELLANT
v.
TROY C. ROCK, M.D.; LARRY L. BRITT, II, M.D.; ANDREW C. BERNARD, M.D.; SHANE D. O'KEEFE, M.D.; CALIXTO M. PULMANO, M.D.; JASON L. KESZLER, D.O.; MURRAY B. CLARK, ASSOCIATE VICE PRESIDENT FOR MEDICAL CENTER OPERATIONS; UNIVERSITY OF KENTUCKY MEDICAL CENTER; UNIVERSITY HOSPITAL OF THE ALBERT B. CHANDLER MEDICAL CENTER, INC.; AND KENTUCKY MEDICAL SERVICES FOUNDATION, INC., APPELLEES

Released for Publication January 8, 2015.

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ON REVIEW FROM COURT OF APPEALS. CASE NO. 2010-CA-002292 & 2011-CA-000028. FAYETTE CIRCUIT COURT NO. 08-CI-01856.

FOR APPELLANT: Stephen M. O'Brien III, Cory Michael Erdmann, Erdmann & Stumbo, PLLC.

FOR APPELLEES: Bradley A. Case, Stephen Joseph Mattingly, Dinsmore & Shohl, LLP, William Thro, General Counsel - University of Kentucky.

OPINION OF THE COURT BY JUSTICE KELLER. All sitting. Minton, C.J., Abramson, Cunningham, and Noble, JJ., concur. Venters, J., concurs in result only by separate opinion in which Scott, J., joins.

OPINION

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KELLER, JUSTICE.

Ira Branham, individually, and as administrator of the estate of Peggy Branham (hereinafter collectively referred to as " the Estate" ), appeals from the opinion of

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the Court of Appeals affirming the judgment in favor of Troy Rock, M.D., Larry L. Britt, II, M.D., Calixto M. Pulmano, M.D., and Jason L. Keszler, D.O. (hereinafter collectively referred to as " the Physicians" ). The Estate argues that the trial court erroneously excluded evidence, abused its discretion with regard to limiting expert witnesses, and erroneously instructed the jury. The Estate also appeals the trial court's order dismissing the Estate's claims against the University of Kentucky Medical Center (the Medical Center) and University Hospital of the Albert B. Chandler Medical Center, Inc. (the Hospital Corporation) based on a finding that those entities have immunity.[1] Having reviewed and considered the record, the briefs filed by the parties, and the parties' oral arguments, we affirm.

I. FACTS.

The underlying facts are essentially not in dispute.. Peggy Branham (Peggy) was the unrestrained passenger in a pickup truck being driven by her husband, Ira Branham (Ira). The truck left the road and struck a tree. The passenger-side airbag deployed but did not prevent Peggy from striking the windshield, which resulted in a brief period of unconsciousness. Emergency personnel were called and Peggy was transported to Mary Chiles Hospital, where she underwent a head and neck CT scan. Because of concerns about potential internal bleeding and out of an abundance of caution," Peggy was transported by air-care to the Medical Center.

At the Medical Center, Peggy was examined and treated by Dr. Troy Rock, the attending emergency room physician, and Dr. Larry Britt, an emergency room resident. Those physicians ordered a chest x-ray, which resident Dr. Jason Keszler read as revealing " blunting to the left costophrenic angle" possibly related to " effusion or scarring" and a " 3.5 cm mass-like density in the left lower lobe which is worrisome for neoplasm." Dr. Keszler recommended a chest CT scan for further evaluation." Attending radiologist Dr. Calixto Pulmano agreed with Dr. Keszler's reading. Approximately two and a half hours after arriving in the Medical Center emergency room, Peggy was discharged with instructions to follow-up with her primary care physician.

Approximately thirty-six hours later, Peggy died at home. An autopsy revealed that she died because of a ruptured aorta related to blunt force trauma to her chest.

The Estate brought suit approximately one-year later, making direct claims of wrongful death and medical negligence against the Physicians, and vicarious liability claims against the Medical Center and the Hospital Corporation. As noted above, the trial court dismissed the Estate's claims against the Medical Center and the Hospital Corporation on sovereign immunity grounds, the jury found in favor of the Physicians, and the trial court entered a judgment consistent with the jury's findings. The Estate appeals from that judgment and the court's finding of immunity.

II. STANDARD OF REVIEW.

Because the standards of review vary, we set forth the appropriate standard as part of our analysis of each issue.

III. ANALYSIS.

A. Evidence Regarding Dr. Rock's Medical License.

In 2004, Dr. Rock prescribed medications (Ambian, Hydrocodone, and Dexedrine)

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to three people with whom he did not have a physician-patient relationship and for whom he did not have any treatment charts. The Kentucky Board of Medical Licensure (the Board) conducted an investigation which included a review by an emergency room consultant. The consultant concluded that Dr. Rock's " prescribing patterns" showed a " Gross Ignorance of the precautions and prohibitions necessary to insure the safety of patients and the community" and that his " diagnosis, treatment, records[,] and overall care were below the minimum standards of care."

Following the conclusion of the investigation, the Board and Dr. Rock entered into an agreed order whereby Dr. Rock agreed to: (1) only prescribe controlled substances to individuals with whom he had a physician-patient relationship; (2) complete the " Prescribing Controlled Drugs" course offered through Vanderbilt University Health Center within six months of the order; (3) maintain a controlled substances log; (4) permit agents of the Board to inspect, copy, and/or obtain the controlled substances log and other relevant records upon request; (5) pay the costs of the investigation; and (6) refrain from having any further violations. Nine months after entry of the agreed order, the Board fined Dr. Rock $400.00 because he had not timely completed continuing medical education requirements or sought an extension of time to do so.

During his pre-trial deposition, Dr. Rock testified that his licensure problems arose after he prescribed medication to a business partner with whom he did not have a physician-patient relationship. He also testified that he completed the terms of the agreed order. In seeking to admit Dr. Rock's deposition testimony, the Estate argued that it was untruthful and, like his licensure problems, was admissible because: it tended to show that Dr. Rock did not know the standard of care; and Dr. Rock had been identified as an expert, making evidence of his character for untruthfulness and credibility an issue.

Counsel for the Physicians filed a motion in limine seeking to exclude evidence regarding the Board's investigation of Dr. Rock, the agreed order, and Dr. Rock's deposition testimony. In support of that motion, counsel argued that such evidence would be: irrelevant because the agreed order had expired two years earlier; irrelevant because the violation had nothing to do with Dr. Rock's treatment of Peggy; inadmissible as propensity or prior bad acts evidence; and inadmissible because Dr. Rock's license had not been in any way restricted. As to Dr. Rock's deposition testimony, counsel argued that it may have been inartful or incomplete, but it was not untruthful.

Following a lengthy hearing, the trial court sustained Dr. Rock's motion. We note that, in its written order, the court did not give its reasoning for sustaining that motion. However, during the hearing, the court indicated that the evidence regarding Dr. Rock's license was collateral and inadmissible because it dealt with Dr. Rock's inappropriate prescription of medication to non-patients, not his treatment of trauma victims in the emergency room.

" The trial judge has wide discretion to admit or exclude evidence . . . ." Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676, 680 (Ky. 2005). A trial judge abuses her discretion if her " decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).

On appeal, the Estate argues that the trial court abused its discretion when it excluded evidence regarding Dr. Rock's

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licensure problems because: (1) Dr. Rock was identified as an expert witness and the disciplinary proceedings before the Board go " to his credibility and knowledge as an expert witness; " and (2) Dr. Rock's licensure problems go " to his medical knowledge and knowledge regarding the applicable standard of care."

We recently addressed when evidence of a physician's collateral misconduct is admissible in Trover v. Estate of Burton, 423 S.W.3d 165 (Ky. 2014). In Estate of Burton, an oncologist alleged that Dr. Trover " had poor practice habits and was not a reliable reader of mammograms and other diagnostic radiographic images." Id. at 168. The Board undertook an investigation of those allegations and concluded that Dr. Trover " lacked 'consistent diligence," interpreted more than twice as many images as the average radiologist, and had significantly misread several images. Id. Although he was no longer practicing in Kentucky, Dr. Trover contested the Board's findings and presented evidence to the contrary. Id. Ultimately, the Board and Dr. Trover entered into an agreed order whereby Dr. Trover agreed to limit the number of images he reviewed per day and to have his work reviewed by a radiologist approved by the Board. Id. at 170-71.

During this time period, Dr. Trover read several CT scans of Judith Burton's lungs as showing no evidence of cancer. Id. at 171. Burton's estate alleged that Dr. Trover misread those CT scans, missing evidence of lung cancer from which Burton ultimately died. Id. Furthermore, Burton's estate alleged that, if Dr. Trover had correctly read the CT scans, Burton ...


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