ANN D. QUATTROCCHI APPELLANT/CROSS-APPELLEE
PAUL NICHOLLS, M.D. APPELLEE/CROSS-APPELLANT
AND CROSS-APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE JAMES
D. ISHMAEL, JR., JUDGE ACTION NO. 10-CI-07029
FOR APPELLANT: Thomas K. Herren Lexington, KY.
FOR APPELLEE: David S. Strite Benjamin J. Weigel Louisville,
BEFORE: DIXON, JOHNSON, AND MAZE, JUDGES.
OPINION REVERSING AND REMANDING IN APPEAL NO.
2016-CA-000428 AND AFFIRMING IN APPEAL NO.
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
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.
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
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
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.
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.
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.
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
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
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.
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.
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 . . . .
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."
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.
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 ...