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House v. Jewish Hospital & St. Mary's Healthcare, Inc.

Court of Appeals of Kentucky

July 28, 2017

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
v.
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
v.
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

         APPEAL FROM BULLITT CIRCUIT COURT HONORABLE RODNEY BURRESS, JUDGE ACTION NO. 12-CI-01132

          BRIEFS FOR APPELLANTS AND CROSS-APPELLEES: Ronald M. Wilt James D. Ballinger Louisville, Kentucky

          ORAL ARGUMENT FOR APPELLANTS AND CROSSAPPELLEES: Stephen A. Klausing Jr. Louisville, Kentucky

          BRIEF AND ORAL ARGUMENT FOR APPELLEE AND CROSSAPPELLANTS: W. Kennedy Simpson Louisville, Kentucky

          BEFORE: KRAMER, CHIEF JUDGE; ACREE AND JOHNSON, JUDGES.

          OPINION

          ACREE, JUDGE.

         This is a medical negligence case involving an "empty-chair" defendant, [1] 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.[2] 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.[3]

         We find no merit in the cross-appeal and affirm the trial court as to the errors claimed therein.

         FACTS AND PROCEDURE

         In 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 minute (bpm).[4]

         Dr. 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.

         Dr. 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.

         At 8:15 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 124 bpm.

         Nurse 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."[5] 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 conditional discharge.

         Around 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.

         Despite 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.

         Barbara House, on behalf of the Estate of Laura B. Alexander, filed this medical negligence lawsuit[6] 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 diagnosis.

         Following 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.

         Dr. 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.

         We 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.

         In a 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 case.

         As 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.[7] 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.

         Notwithstanding 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. at 74.

         With the foregoing concepts in mind, we return to a recitation of the trial proof and procedure in this case.

         At 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[8] 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.

         However, 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 ...


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