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Quattrocchi v. Nicholls

Court of Appeals of Kentucky

January 5, 2018

ANN D. QUATTROCCHI APPELLANT/CROSS-APPELLEE
v.
PAUL NICHOLLS, M.D. APPELLEE/CROSS-APPELLANT

         APPEAL AND CROSS-APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE JAMES D. ISHMAEL, JR., JUDGE ACTION NO. 10-CI-07029

          BRIEF FOR APPELLANT: Thomas K. Herren Lexington, KY.

          BRIEF FOR APPELLEE: David S. Strite Benjamin J. Weigel Louisville, KY.

          BEFORE: DIXON, JOHNSON, AND MAZE, JUDGES.

          OPINION REVERSING AND REMANDING IN APPEAL NO. 2016-CA-000428 AND AFFIRMING IN APPEAL NO. 2016-CA-000503

          MAZE, JUDGE:

         This appeal and cross-appeal arise from a judgment of the Fayette Circuit Court confirming a jury verdict in favor of Paul Nicholls, M.D., and dismissing the medical negligence claim brought by Ann Quattrocchi. Ann argues that the trial court improperly excluded evidence of a surgical incident which led to her sciatic nerve palsy. As the evidence of record shows exclusion of the evidence and the failure to grant a continuance amounted to an abuse of discretion, we reverse and remand.

         Background

         In October 2007, the Appellant, Ann Quattrocchi, had hip replacement surgery at Central Baptist Hospital in Lexington, Kentucky. The hospital is not a party to this action. Dr. Paul Nicholls was the operating surgeon. When Ann awoke from surgery, her leg was paralyzed. She experienced a condition that is known as sciatic nerve palsy, a rare complication of total hip replacement surgery. Her leg has remained paralyzed since and she experiences continuous pain and discomfort, resulting in many adverse effects in her daily life. Ann believes her nerve palsy was the result of a second procedure she did not consent to that was done to correct a perceived leg length discrepancy. It is alleged her leg was dropped in preparation for this second surgery, when the candy cane device used to stabilize her leg was improperly attached to the table and fell, pulling her leg with it.

         In order to better understand the course of events in this case, we have set out a timeline of the significant events of this case, followed by a detailed discussion of those events. The record indicates:

Date

Event

October 17, 2007

Surgery which resulted in sciatic nerve palsy.

July 1, 2008

Ann asked Dr. Nicholls, her surgeon, who she still saw for treatment, if her leg was dropped during surgery. Ann alleges that Dr. Nicholls disregarded her question and failed to give a direct answer.

March 24, 2010

Ann requested all of her medical records from Kentucky Orthopedic and Hand Surgery (“KOHS”). In a July 1, 2008, office note Dr. Nicholls stated that a leg drop did occur and may have been the cause of the injury. However, according to Ann's counsel, KOHS excluded that note from the documents provided to Ann.

December 14, 2010

Ann filed suit.

April 13, 2015

Dr. Nicholls is deposed, and testified that he did not remember whether the leg drop incident occurred or not.

January 14, 2016

Final pre-trial conference in which Dr. Nicholls's counsel made a motion in limine to “prohibit testimony by plaintiff as to her leg being ‘dropped.'” The trial court sustained the motion with the “proviso that the ruling may be revisited at trial depending on the testimony of witness Hench.”

January 21, 2016

Inadvertent disclosure of the July 1, 2008, office note, which surfaced pursuant to a request for billing records by Ann's counsel. This was the first-time Ann or her counsel saw the doctor's note that affirmatively documented the leg drop.

February 4, 2016

Trial court sustained defense counsel's motion in limine to exclude Physician Assistant Hench's testimony. The court stated it would be inclined to allow Ann's counsel to address the July 1, 2008, office note at trial with Dr. Nicholls.

February 8, 2016

The trial court sustained a pre-trial motion the morning of trial to exclude evidence of Dr. Nicholls's July 1, 2008, note and

Ann's expert's testimony. The trial in which all evidence of the leg drop was excluded, including Dr. Nicholls's own July 1, 2008, office note, began that afternoon.

February 11, 2016

Jury verdict returned in favor of Dr. Nicholls.

March 18, 2016

The trial court denied Ann's counsel's motion for a new trial.

         After her surgery, but prior to her suit, Ann requested all of her records from the Central Baptist Hospital Custodian of Medical Records. When Ann received these records, there was no indication of the leg drop. Later, in February 2008, Ann's counsel requested Ann's records from Kentucky Orthopedic and Hand Surgery (hereinafter "KOHS"), where Dr. Nicholls practiced. None of these records revealed any indication of the candy cane incident in which Ann's leg was dropped.

         Ann had worked as a nurse at the hospital for over thirty years. By July 2008, Ann had heard a rumor at the hospital from a physician assistant who had been in the operating room that her leg was dropped during surgery when the candy cane device became detached from the table. As a result, during an office visit with Dr. Nicholls on July 1, 2008, Ann asked him if her leg had been dropped during surgery. According to Ann, no direct answer was given to her and she later testified by avowal that Dr. Nicholls seemed to disregard her question as insignificant.

         In March 2010, prior to filing her lawsuit in December, Ann again requested all of her medical records from KOHS. KOHS did not include Dr. Nicholls's office note from Ann's July 1, 2008, visit. In that note, Dr. Nicholls stated,

[w]e discussed this at some length. I told her that I thought about all that has happened. The only thing I can think of that may account for this would be that during the course of the procedure her leg did twist and fall while we were positioning her.

         Ultimately, Dr. Nicholls's office note was only obtained by Ann's counsel in January 2016, three weeks before trial, when KOHS inadvertently produced the note in response to counsel's request for "patient accounts" pertaining to billing and insurance. The billing information was needed for trial purposes to reflect damage demands for Ann. This was the first time Ann's counsel saw the written note that confirmed the rumor she had heard.

         Prior to receiving this note, Ann and Ann's counsel made several efforts to substantiate the case for the leg drop incident. First, through a nurse paralegal, Ann's counsel contacted the Nurse Anesthetist who was in the room during Ann's surgery. When asked if Ann's leg was dropped during surgery, the Nurse Anesthetist responded that nothing unusual had happened during the surgery. Second, in Dr. Nicholls's sworn deposition, he was asked if he knew anything about Ann's leg being dropped in surgery. He responded that he didn't recall, and didn't know whether her leg was dropped or not.

         Lastly, Ann's counsel filed their final witness list identifying members of the Central Baptist Hospital surgical team, including Elizabeth Hench. Dr. Nicholls's counsel questioned why Hench was listed as a witness. Ann's counsel responded that he wanted to ask her questions about the rumored leg drop. Hench was the physician assistant in the surgical room who is now believed to be the source of the rumor. Her deposition was eventually taken on January 27, 2016, six days after Ann's counsel inadvertently received Dr. Nicholl's July 2008 note. During Hench's deposition, she stated that,

I remember that we did her surgery. I remember prior to looking at the medical records that we did a hip. I remembered that her leg lengths were not identical and that we reopened and I do remember the leg falling, the leg holder falling with her leg in it . . . .

         Ann's counsel then continued asking Hench questions about the surgery. She further explained that, she didn't have a great memory of exactly what happened, but she did remember "that the leg did fall."

         On February 4, 2016, Dr. Nicholls's counsel filed a motion in limine to strike Hench's testimony, arguing that the drop was not relevant (was not a deviation from standard of care and did not cause damage). The trial court sustained the motion to exclude Hench's testimony regarding the leg drop, concluding that her testimony was not definitive enough for the plaintiff's expert to render an opinion concerning standard of care and causation. However, the trial court emphasized the court was only ruling on the issue regarding Hench, and did indicate it would likely allow Ann's counsel to address the July 2008 office note with Dr. Nicholls, as it was his own office note.

         On February 5, 2016, Dr. Hugate, Ann's expert, testified by video in Denver, Colorado. His testimony was essentially the same as his deposition testimony. However, this time he used the fact of the drop as an additional fact supporting his opinion that the ...


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