BARBARA HOUSE, ADMINISTRATRIX OF THE ESTATE OF LAURA B. ALEXANDER, deceased; and BARBARA HOUSE AND DARRELL HOUSE, as CO-GUARDIANS of KAYLEN ALEXANDER, a minor APPELLANTS
JEWISH HOSPITAL & ST. MARY'S HEALTHCARE, INC d/b/a JEWISH HOSPITAL MEDICAL CENTER SOUTH APPELLEESANDJEWISH HOSPITAL & ST. MARY'S HEALTHCARE, INC d/b/a JEWISH HOSPITAL MEDICAL CENTER SOUTH CROSS-APPELLANTS AND JEWISH HOSPITAL & ST. MARY'S HEALTHCARE, INC d/b/a JEWISH HOSPITAL MEDICAL CENTER SOUTH CROSS-APPELLANTS
BARBARA HOUSE, ADMINISTRATRIX OF THE ESTATE OF LAURA B. ALEXANDER, deceased; and BARBARA HOUSE AND DARRELL HOUSE, as CO-GUARDIANS of KAYLEN ALEXANDER, a minor
FROM BULLITT CIRCUIT COURT HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 12-CI-01132
FOR APPELLANTS AND CROSS-APPELLEES: Ronald M. Wilt James D.
Ballinger Louisville, Kentucky
ARGUMENT FOR APPELLANTS AND CROSSAPPELLEES: Stephen A.
Klausing Jr. Louisville, Kentucky
AND ORAL ARGUMENT FOR APPELLEE AND CROSSAPPELLANTS: W.
Kennedy Simpson Louisville, Kentucky
BEFORE: KRAMER, CHIEF JUDGE; ACREE AND JOHNSON, JUDGES.
a medical negligence case involving an
"empty-chair" defendant,  shifting burdens of proof, and a partial
directed verdict we conclude was prematurely granted. The
case presents a new issue in our evolving jurisprudence of
comparative fault and apportionment. That issue is whether a trial court, at
the close of the plaintiff's proof at trial, may grant a
directed verdict of negligence against the empty-chair
defendant, i.e., that the empty-chair defendant owed
and breached a duty to the plaintiff. For the following
reasons, we answer that question in the negative, reverse the
judgment, and remand for a new trial.
no merit in the cross-appeal and affirm the trial court as to
the errors claimed therein.
November 2011, Laura Alexander presented herself to the
emergency room at Jewish Hospital Medical Center South
complaining of dark urine, dehydration, and pain and weakness
in her arms and legs. Her blood pressure was normal, but her
pulse rate was elevated - tachycardic - at 148 beats per
Charles Sherrard, Jr., an emergency room (ER) physician,
promptly evaluated Laura around 6:15 a.m. He obtained a
medical history from Laura and ordered lab tests. Dr.
Sherrard's medical impression was dehydration and
myositis (muscle soreness). He ordered two liters of
intravenous fluids for Laura. Nurse Charity Johnston
administered the first liter of fluids at 6:30 a.m.
Sherrard re-evaluated Laura at 8:08 a.m. Her heart rate,
while still elevated, had decreased to 114-118 bpm. At that
point, Laura informed Dr. Sherrard that she had strenuously
exercised a few days earlier. Considering this new
information, Dr. Sherrard suspected the cause of Laura's
symptoms was rhabdomyolysis (the breakdown of muscle fibers
due to some physical damage). He diagnosed Laura with acute
hypokalemia (deficiency of potassium in the bloodstream) with
additional diagnoses of acute dehydration, exercised-induced
myositis, and myofascial pain.
a.m., Dr. Sherrard ordered Laura's discharge conditioned
upon her receiving the second liter of fluids which Nurse
Johnston administered at 8:18 a.m. Laura's heart rate was
Johnston discharged Laura at 9:47 a.m. Laura's heart rate
had risen slightly to 132 bpm - a lower pulse rate than when
she first presented in the ER, but higher than it was one and
one-half hours earlier. Jewish Hospital's
"reassessment and discharge criteria" provided,
"[i]f the vital signs are outside [certain identified]
parameters or normal for that patient . . ., the provider
shall be notified." Nurse Johnston did not notify Dr. Sherrard
of Laura's heart rate prior to discharge. She testified
at trial that she did not do so because, in her nursing
judgment, Laura's heart rate was consistent with what it
had been when Dr. Sherrard first ordered Laura's
7:00 p.m. of that same day, Laura experienced sudden
shortness of breath and was unable to move her arms and legs.
EMS transported Laura to Jewish Hospital's downtown
Louisville facility. She was in septic shock.
an aggressive workup, and the administration of antibiotics,
her sepsis was too advanced. Laura died shortly after
midnight. Her cause of death was cardiac arrest secondary to
a staph aureus infection in her blood. The origin of the
sepsis was later identified when it was learned that, several
weeks before presenting to Jewish Hospital, Laura had been
treated by her family doctor and a surgeon for a boil on her
buttocks. Despite aggressive treatment, the boil became
septic and caused her death.
House, on behalf of the Estate of Laura B. Alexander, filed
this medical negligence lawsuit against Jewish Hospital, Dr. Sherrard, and
Dr. Sherrard's professional group. The essence of the
Estate's claim against the Hospital is that Nurse
Johnston was negligent in failing to report Laura's
elevated discharge heart rate to Dr. Sherrard, combined with
speculation that Dr. Sherrard, so informed, would have kept
Laura in the hospital long enough to lead to a life-saving
extensive discovery, Jewish Hospital moved for summary
judgment on grounds that the Estate was unable to produce
evidence establishing factual causation. The trial court
denied the hospital's motion.
Sherrard then settled with the Estate. The settlement was
memorialized in a standard agreement in which Dr. Sherrard
disclaimed liability. The Estate proceeded to trial against
Jewish Hospital only.
pause here to address a little of the law we must apply, and
also the opportunities for trial strategy presented by our
jurisprudence to date.
typical medical malpractice case, "[t]he burden of proof
is upon the patient to prove the negligence of the physician
or surgeon, and that such negligence was the proximate cause
of his injury and damages." Andrew v. Begley,
203 S.W.3d 165, 170 (Ky. App. 2006) (citation and internal
quotation marks omitted). In such a case, the plaintiff's
strategy is to prove the physician's comparative fault
for harm was great. The case before us is not that kind of
noted, Dr. Sherrard settled with the Estate and did not
physically participate in the trial. Yet his liability was
still an issue for purposes of apportionment. As the case
moved forward, as with any case involving an empty-chair
defendant, things would become a bit
topsy-turvy. The plaintiff's strategy
in such cases is turned on its head. In presenting his or her
case-in-chief, the plaintiff is no longer motivated to prove
the phantom tortfeasor (in this case, Dr. Sherrard) was
largely at fault. On the contrary, the plaintiff has the
precise opposite motivation - i.e., to minimize the
comparative fault of the empty-chair defendant (perhaps even
prove it did not exist at all), so as to maximize recovery
from the remaining defendant, or defendants.
any change in strategy, the Supreme Court tells us that
"[e]mpty-chair defendants who have settled are to be
treated no differently than participating defendants in
regard to what must be proved to apportion fault against them
[even t]hough the empty-chair defendant will not actually be
held liable in the trial, since it is literally not on trial
. . . ." CertainTeed Corp. v. Dexter, 330
S.W.3d 64, 74 (Ky. 2010). CertainTeed awkwardly
states the rule in terms of how phantom tort defendants
"are to be treated" - i.e., the same as
always. That is to say, the party who benefits by
the jury's belief in the fault of the empty-chair
defendant bears the burden of proving by a preponderance of
the evidence every element of the empty-chair defendant's
liability, just as if he or she was still exposed to
indeterminate liability and still had a presence in the
courtroom. But there is a transpositional difference in the
civil procedure; now the party who benefits by proof of the
empty-chair defendant's liability is the remaining
defendant or defendants and not the plaintiff.
The burden of proof . . . [therefore, ] is effectively
shifted, since it is the participating defendant, not the
plaintiff, who seeks to show that the empty-chair defendant
is responsible. Rather than trying to show the actual
liability of the empty-chair defendant, as a plaintiff might
do, the participating defendant is merely seeking a reduction
of its liability.
Id. at 73. "[A] participating defendant must
still prove liability on the part of the [co-]tortfeasor onto
whom it seeks to shift some of the blame." Id.
the foregoing concepts in mind, we return to a recitation of
the trial proof and procedure in this case.
trial, Dr. Sherrard did not testify in person. Instead, the
parties played the video deposition he gave prior to his
settlement and dismissal from the case. Dr. Sherrard defended
his diagnoses and medical decisions as appropriate under the
circumstances. He emphasized that Laura displayed no
SIRS criteria and stated that the
"picture completely fit an exercise-induced muscle
injury or myositis or very mild" rhabdomyolysis with
dehydration. Dr. Sherrard testified that Laura's sodium,
potassium, chloride, CO2, and BUN creatinine lab results were
consistent with such a diagnosis. He further opined that a
sufficient explanation for the persistence of Laura's
elevated heart rate could be the medication she was taking
and the rhabdomyolysis. Under such circumstances, it was
expected to take time for her elevated heart rate to improve
even with administration of fluids.
Dr. Sherrard also said if he had been aware of Laura's
persistent and worsening tachychardia, he would have
investigated further. He said he would have re-examined
Laura, gathering additional information from her, to
"have a good hypothesis of why [the] heart rate [was]
elevated." He also "probably would have wanted
orthostatic blood pressures." Dr. Sherrard testified he
would have taken "an inventory of what's going on
around her and [made] a decision from there." Dr.
Sherrard never expressly identified the ...