Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Neal v. Floyd

Court of Appeals of Kentucky

May 4, 2018

CHARLOTTE A. NEAL, EXECUTRIX OF THE ESTATE OF MICHAEL H. NEAL; and CHARLOTTE A. NEAL, INDIVIDUALLY APPELLANTS
v.
RICHARD D. FLOYD, IV, M.D. and NEW LEXINGTON CLINIC, P.S.C. APPELLEES

          APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE JAMES D. ISHMAEL, JR., JUDGE ACTION NO. 13-CI-00221

          BRIEF FOR APPELLANTS: Kris D. Mullins Keith R. Mitnik D. Tysen Smith, II Lexington, Kentucky

          BRIEF FOR APPELLEES: Donald P. Moloney, II E. Douglas Stephan Lexington, Kentucky

          BEFORE: DIXON, JOHNSON, TAYLOR, JUDGES.

          OPINION

          JOHNSON, JUDGE:

          Charlotte A. Neal, Executrix of the estate of Michael H. Neal, and Charlotte A. Neal, individually (collectively, "Neals"), bring this appeal from a Trial Verdict and Judgment and an Order Overruling Plaintiffs' Motion for New Trial in Richard D. Floyd, IV, M.D. ("Dr. Floyd") and New Lexington Clinic, P.S.C.'s ("Clinic") favor, entered on November 30, 2016 and December 22, 2016, respectively. After reviewing the record in conjunction with the applicable legal authorities, we AFFIRM in part and REVERSE in part the Fayette Circuit Court and REMAND this matter for a new trial.

         BACKGROUND

         The underlying matter involves medical treatment received by Michael H. Neal ("Mr. Neal") under the care of Dr. Floyd. Dr. Floyd performed open heart surgery on Mr. Neal on January 16, 2012. There were complications both during and after the surgery which led to Mr. Neal's death on January 19, 2012. Charlotte Neal filed suit on January 22, 2013, alleging negligence on the part of Dr. Floyd, St. Joseph Hospital, and the Clinic. St. Joseph Hospital was dismissed from the underlying action via an Agreed Order entered on November 30, 2016.

         After hearing the evidence, the jury returned a verdict of 10-2 in Dr. Floyd and Clinic's favor, finding that Dr. Floyd did not breach the standard of care he owed Mr. Neal. The Trial Verdict and Judgment was entered on November 30, 2016. The Neals filed a Motion for New Trial pursuant to Kentucky Rules of Civil Procedure ("CR") 59.01 on December 12, 2016. The court entered its Order Overruling Plaintiffs' Motion for New Trial on December 22, 2016.

         The Neals filed their Notice of Appeal on January 17, 2017, and raise four issues: The Neals' counsel was improperly prevented from discussing the standard of proof in a civil case during voir dire; the Neals' counsel was improperly prevented from explaining the standard of proof during closing argument; the trial court erred by not answering the jury's question with respect to the preponderance of evidence standard of proof in a civil case; and Juror 4243 should have been stricken for cause. Based on these allegations of impropriety, the Neals request reversal and remand for re-trial.

         STANDARD OF REVIEW

         We have established clear precedent for the appropriate standard of review when examining a trial court's decision to grant or deny a request for reversal and remand for a new trial.

The granting of a new trial is within the discretion of the trial court. When a trial court denies a motion for a new trial, our standard of review is whether there has been an abuse of that discretion. The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. We presume the trial court to be correct and will reverse only upon clear error.

Kaminski v. Bremner, 281 S.W.3d 298, 304 (Ky. App. 2009) (internal citations and quotation ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.