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Argotte v. Harrington

Supreme Court of Kentucky

June 15, 2017



          COUNSEL FOR APPELLANT: Jonathan Rodgers Oliver James Allen Sigler Whitlow, Roberts, Houston & Straub, PLLC

          COUNSEL FOR APPELLEE: Clifton Aaron Boswell Clifton A. Boswell, PLC Charles S. Wible Charles S. Wible Law Offices, PSC



         This appeal arises out of a medical malpractice claim brought in the McCracken Circuit Court by Appellee, Jacqulyn G. Harrington, alleging that Appellant, Dr. Alex Argotte, failed to obtain her informed consent before undertaking a surgical procedure on her. In Harrington's opening statement at trial, her attorney informed the court and the jury that she would not present an expert witness because "you can use your own common sense" to determine if Harrington had been informed of the risks associated with the procedure. After concluding that Harrington could not prevail without the opinion of a testifying expert, the trial court dismissed Harrington's claim before the first witness was called.

         The primary issue before us is whether Harrington's concession that she would not present an expert's testimony justified the trial court's entry of a directed verdict. The Court of Appeals reversed, concluding that the trial court too hastily dismissed the case since the evidence to be presented at trial may have established an exception to the general rule requiring expert testimony to establish a professional standard of care. The Court of Appeals rendered its opinion one month before the publication of our opinion in Sargent v. Shaffer, 467 S.W.3d 198 (Ky. 2015), which plumbed the depths of Kentucky's statutory standard for informed consent, KRS 304.40-320. On discretionary review, we affirm the judgment of the Court of Appeals, although we do so on different grounds based upon our decision in Sargent Consequently, we remand the matter to the trial court for further proceedings.


         Dr. Argotte performed two surgical procedures for Harrington: the placement of an inferior vena cava filter (IVC filter) and a subsequent gastric bypass surgery. Harrington's claim pertains only to the placement of the IVC filter which was done as a necessary antecedent to the gastric bypass surgery.

         Before implanting the IVC filter, Dr. Argotte obtained a written consent form signed by Harrington. Pertinent provisions of the form are as follows:

I have been informed of the nature, risk, consequences, and alternatives of the operation or procedure to be performed. The hospital is requesting that I sign this request form stating that I fully understand the operation or procedure, which was explained by my doctor.
Physician Statement Risk:
Migration of filter[1]
I have been made fully aware by Dr. Argotte and/or his staff of the procedure to be performed and I am now aware of the risks involved.

         Harrington testified in a pre-trial deposition that neither Dr. Argotte nor his staff explained the consent form to her and that she felt rushed by Dr. Argotte's office staff to sign the papers they handed to her. Harrington also testified that Dr. Argotte advised her that the IVC filter was necessary to protect her from the risks associated with a pulmonary embolism (a blood clot) that might form as a result of the bypass surgery. He told Harrington he would not perform the gastric bypass procedure without having the IVC filter in place. Harrington testified that Dr. Argotte never personally advised her of any risks associated with the IVC filter or the process of implanting it. She was, of course, ostensibly aware from the written form that "migration of filter" was a risk, but she was not told that the filter could fracture and that fragments of the filter could break loose and travel through her veins to affect vital organs.

         About two and one-half years after these procedures were performed, Harrington suffered severe chest pain. Prompt medical treatment disclosed that the IVC filter had fractured, allowing fragments of the device to migrate to her lungs and lodge there. Doctors surgically removed the main component of the IVC filter but the fragments in her lungs could not be removed. She complains of continuing pain and discomfort and fear that fragments may migrate further resulting in serious harm or death.

         In his opening statement at the start of the trial, Harrington's attorney explained to the court and the jury that the evidence would show that Dr. Argotte obtained Harrington's consent to the procedure without adequately informing her of the risks associated with the implanting of an IVC filter. He displayed an enlarged photocopy of the signed consent form identifying "migration of filter" as a risk but revealing nothing about the risk of "fracturing" or "fragmentation" of the filter. Counsel informed the jury that the evidence would show that Dr. Argotte never informed Harrington of the risk that the filter could fracture and break into fragments which could then lodge in her lungs, despite his knowledge of that possibility, and that future health problems or death could result from such fragmentation. Counsel also told the jury that the evidence would show that Dr. Argotte never informed Harrington that the IVC filter could eventually be removed to eliminate the risk of harm from fragmentation. Counsel also acknowledged that Harrington would not have a doctor testifying "about what a doctor should have told her, " stating that the jurors could use their common sense to decide what a person in Harrington's shoes should have been told.

         At the close of Harrington's opening statement, Dr. Argotte moved for a directed verdict, arguing that without an expert witness, Harrington was unable to prove a breach of the standard of care regarding informed consent. After considering arguments, the trial court agreed that Harrington could not prevail at trial. Accordingly, the trial court directed a verdict in favor of Dr. Argotte and dismissed Harrington's claim.

         The Court of Appeals reversed the dismissal and remanded the matter to the trial court. The Court of Appeals concluded that the trial court failed to consider that evidence adduced at\trial could establish an exception to the general rule requiring expert testimony in medical cases. We granted discretionary review to address the granting of a directed verdict at the conclusion of the opening statement and to further examine whether Harrington's lack of informed consent claim could survive without an expert witness.

         II. ANALYSIS

         A. Directed verdicts on opening statements

         Before addressing the substantive issue relating to informed consent, we must first address the unusual procedural posture of this case: the granting of a directed verdict dismissing the plaintiffs claim immediately after the plaintiffs opening statement. The general standard for granting a directed verdict is applicable here as it is in any directed verdict situation. "[A] trial judge cannot enter a directed verdict unless there is a complete absence of proof on a material issue or if no disputed issues of fact exist upon which reasonable minds could differ." Biermann v. Klapheke, 967 S.W.2d 16, 18-19 (Ky. 1998). "The trial court must draw all fair and reasonable inferences from the evidence in favor of the party opposing the motion." Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983). On appellate review of an order granting a directed verdict, the test is whether "under the evidence as a whole it would not be clearly unreasonable for a jury to find [for the plaintiff]." Id.

         Both parties in this action recognize, and we agree, that a directed verdict may be granted immediately after an opening statement. However, that summary disposition of a case is proper "only when counsel has made admissions that are fatal to his client's case." Baker v. Case Plumbing Manufacturing Co., 423 S.W.2d 258, 259 (Ky. 1968) (citing Riley v. Hornbuckle, 366 S.W.2d 304, 305 (Ky. 1963)).

[T]he court may take a case from a jury or enter judgment where it is clear from an opening statement either that the plaintiff cannot recover or that the defendant has no defense, as the case may be. This regards the statement as a judicial admission of the nonexistence of or inability to prove a cause of action or a defense, but even in such a case the action of the court should be exercised cautiously and only where the admission is clear.

Co-De Coal Co. v. Combs, 325 S.W.2d 78, 79 (Ky. 1959).

In general, a directed verdict should not be granted until the conclusion of the plaintiffs case. . . . Nevertheless, Kentucky cases recognize the power of a trial court to decide a case upon the opening statements of counsel where they clearly and definitely disclose no cause of action or no defense, or admit facts the existence of which precludes a recovery by their clients. However, the cases admonish that the practice is a dangerous one and the power should be exercised with caution.

Lambert v. Franklin Real Estate Co., 37 S.W.3d 770, 774 (Ky. App. 2000).

         Because fatal judicial admissions in opening statements are rare and the consequences of a directed verdict before hearing the evidence are severe, prudent trial judges are cautious and normally reluctant to grant such relief. Although we disagree with the trial judge's decision to grant a directed verdict in this case, we commend the caution and careful deliberation he applied to the issue.

         With this affirmation that a directed verdict may be properly granted at opening statements before the presentation of any evidence, we next consider whether this directed verdict was properly granted. The dispositive question is whether, the acknowledgement in Harrington's opening statement that she would not present an expert witness to prove her claim that Dr. Argotte failed to obtain her informed consent was a judicial admission of a "complete ...

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