JEWISH HOSPITAL & ST. MARY'S HEALTHCARE, INC. D/B/A JEWISH HOSPITAL MEDICAL CENTER SOUTH APPELLANT
BARBARA HOUSE, ADMINISTRATRIX OF THE ESTATE OF LAURA B. ALEXANDER, DECEASED; BARBARA HOUSE, CO-GUARDIAN OF KAYLEN ALEXANDER, A MINOR; AND DARRELL HOUSE, CO-GUARDIAN OF KAYLEN ALEXANDER, A MINOR APPELLEES
REVIEW FROM COURT OF APPEALS CASE NOS. 2015-CA-001205 AND
2015-CA-001278 BULLITT CIRCUIT COURT NO. 12-CI-01132
COUNSEL FOR APPELLANT: William Kennedy Simpson Joseph Wright
Thompson, Miller & Simpson, PLC
COUNSEL FOR APPELLEES: Ronald Wilt Stephen Klausing Jr. Wilt
8s Klausing, PLLC James David Ballinger Ballinger Law, PLLC
Alexander was a patient at Jewish Hospital Medical Center
South ("Jewish Hospital"). She was treated and
released on November 28, 2011. Tragically, later that
evening, Laura was taken by ambulance to Jewish Hospital in
downtown Louisville. She died several hours later from
cardiac arrest secondary to a staph aureus infection in her
blood. Barbara House, Laura's mother and administratrix
of her estate, brought suit in Bullitt Circuit Court,
alleging medical malpractice against Dr. Charles Sherrard,
Jr., Jewish Hospital, and Dr. Sherrard's professional
group. Dr. Sherrard settled the claims against him but the
case against Jewish Hospital proceeded to trial, after which
a jury found in favor of Jewish Hospital. The Court of
Appeals reversed and remanded for a new trial. This Court
granted discretionary review. For the following reasons, we
now reverse and reinstate the judgment of the Bullitt Circuit
then thirty-three years old, came into Jewish Hospital's
Emergency Room ("ER") early on the morning of
November 28, 2011. She complained of dark urine, feeling
dehydrated, muscular pain, and weakness in her arms and legs.
Although her blood pressure was in the normal range, her
heartrate was elevated at 148 beats per minute (bpm). Dr.
Sherrard evaluated Laura at approximately 6:15 a.m.; he
obtained a medical history, ordered lab tests, and ordered
two liters of intravenous fluids to be administered.
during Laura's stay, the nursing shift changed, and Nurse
Charity Johnston began assisting in Laura's treatment.
Johnston administered the first liter of fluids at 6:30 a.m.;
at 8:08 a.m., Dr. Sherrard re-evaluated Laura and noted that
her heartrate had decreased to between 114 and 118 bpm.
During this re-evaluation, Laura informed Dr. Sherrard that
she had exercised strenuously a few days earlier. Due to this
new information, Dr. Sherrard suspected that Laura's
symptoms were caused by rhabdomyolysis, muscle fibers
breaking down after physical damage. Laura's potassium
was decreased in her lab results so Dr. Sherrard also
diagnosed Laura with hypokalemia, a potassium deficiency, as
well as acute dehydration, exercised-induced myositis
(inflammation of muscle tissue), and myofascial (muscular
a.m., Dr. Sherrard entered an order discharging Laura,
conditioned upon her receiving a second liter of fluids.
Johnston administered the second liter at 8:18 a.m. At that
time, Laura's heartrate was 124 bpm. At 9:47 a.m.,
Johnston discharged Laura. At that time her heartrate was 132
bpm. Although her heartrate was lower than when she first
presented in the ER, it was higher than when Dr. Sherrard had
last evaluated Laura. Johnston did not notify Dr. Sherrard of
this change but, instead, continued with the discharge
instruction. Johnston stated that she felt, in her nursing
judgment, that Laura's heartrate at discharge was
consistent with what it had been at the time Dr. Sherrard had
ordered the conditional discharge.
discharge from Jewish Hospital, while still tachycardic, was
the focal point of the alleged malpractice of both Dr.
Sherrard and Nurse Johnston. During his deposition testimony,
Dr. Sherrard explained that there were several factors he
felt contributed to Laura's increased heartrate: she had
just finished taking Flexeril (prescribed for muscular pain)
which can cause tachycardia; tachycardia can occur with
dehydration and may not completely resolve with fluids; and
Laura's heartrate at a recent visit to the ER was also
above 100, so her baseline may be higher than normal.
went home with her mother and spent most of the day in bed.
At about 7:00 p.m. that same evening, Laura experienced
sudden shortness of breath and paralysis in her arms and
legs. She was taken by ambulance to Jewish Hospital's
downtown Louisville facility. After a thorough examination
and aggressive care, doctors determined that Laura was in
septic shock. When Laura visited the emergency room earlier
that day, she had not presented with fever, chills, or any of
the normal signs of infection, per Dr. Sherrard. Upon
admission that evening, the doctors and nurses at the
downtown facility administered antibiotics upon determining
she was in septic shock. Sadly, the professionals were unable
to save Laura. She passed away shortly after midnight from
cardiac arrest, secondary to a staph aureus infection in her
blood. It was later determined that Laura had been treated
several weeks prior for a boil; it had been surgically lanced and
was the probable cause of the sepsis that led to Laura's
Sherrard settled Laura's estate's claims against him.
The claims against Jewish Hospital proceeded to trial. Dr.
Sherrard was not present at trial; his video deposition was
played for the jury. He was still included as a party to the
proceedings for apportionment purposes under Kentucky Revised
Statute ("KRS") 411.182. At the close of plaintiffs
case, Jewish Hospital's counsel moved for directed
verdict, claiming that the plaintiffs had failed to prove
causation. The trial court denied the motion. Jewish Hospital
then moved for directed verdict on standard of care as to Dr.
Sherrard; counsel argued that it was undisputed by the
parties that Dr. Sherrard's conduct fell below the
standard of care. Laura's estate's counsel argued
that, from Dr. Sherrard's video testimony, he testified
that his conduct was appropriate. Because Dr. Sherrard was an
expert witness, this testimony was sufficient to create an
issue of fact for the jury. The judge granted Jewish
Hospital's motion, stating that each of the expert
witnesses presented by Laura's estate had testified that
Dr. Sherrard's conduct was below the standard of care.
The case was presented to the jury with an instruction that
Dr. Sherrard had fallen below the standard of care. The jury
returned a verdict for Jewish Hospital. The Estate appealed.
The Court of Appeals determined that, not only was the trial
court's grant of directed verdict in error, but also held
that a trial court cannot grant a directed verdict
of negligence against an empty-chair defendant. The Court of
Appeals cited to this Court's case in CertainTeed
Corp. v. Dexter, 330 S.W.3d 64 (Ky. 2010) as the
foundation of its broad holding. The Court of Appeals
reversed the judgment and remanded the case for a new trial.
Jewish Hospital moved this Court for discretionary review,
which we granted.
STANDARD OF REVIEW
appeal, the central issue before this Court is whether the
trial court erred in granting a directed verdict on the issue
of Dr. Sherrard's failing to meet the relevant standard
of care. "[A] trial judge cannot enter a directed
verdict unless there is a complete absence of proof on a
material issue or if no disputed issues of fact exist upon
which reasonable minds could differ.* Argotte v.
Harrington, 521 S.W.3d 550, 554 (Ky. 2017) (quoting
Bierman v. Klapheke, 967 S.W.2d 16, 18-19
(Ky. 1998)). "The trial court must draw all fair and
reasonable inferences from the evidence in favor of the party
opposing the motion." Argotte, 521 S.W.3d at
554 (quoting Commonwealth v. Sawhill, 660 S.W.2d 3,
5 (Ky. 1983)). "On appellate review of an order granting
a directed verdict, the test is whether \mder the evidence as
a whole it would not be clearly unreasonable for a jury to
find [for the plaintiff].m Argotte, 521
S.W.3d at 554 (quoting Sawhill, 660 S.W.2d at 5).
MAY A TRIAL COURT ENTER DIRECTED VERDICT AGAINST AN
direct appeal, the Court of Appeals discussed the oddity of a
plaintiffs case involving an empty-chair defendant. "The
plaintiffs strategy in such cases is turned on its
head." The plaintiff no longer hopes to prove this
absent actor at fault, but rather to minimize that
party's comparative fault and, thus, maximize recovery
from the party proceeding to trial. Noting this irregularity,
the Court of Appeals cited to this Court's opinion in
Certain Teed v. Dexter, stating 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
..." 330 S.W.3d 64, 74 (Ky. 2010). In an attempt to
clarify the rule, the Court of Appeals stated: "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."
"crux" of the reversible error found by the Court
of Appeals was "the trial court's failure to
consider the effect of the shifting burden of proof in an
empty-chair defendant tort case." The Court of Appeals
determined the directed verdict as to Dr. Sherrard's
liability was, therefore, premature. "[W]e would never
have permitted a directed verdict at the close of the
plaintiffs case against Jewish Hospital - the
"participating defendant" as CertainTeed
would call it." Applying the same rule to the scenario
before it, the Court of Appeals plainly held: "No
directed verdict may be entered against an empty-chair
defendant prior to the close of all evidence."
determine whether such a holding is correct, this Court must
first analyze its own precedent in CertainTeed to
determine the true implications of that case. Additionally,
we must probe the rule on directed verdicts and then,
applying CertainTeed, decide how the rules and
precedent must co-exist.
CertainTeed v. Dexter
v. Dexter was an asbestos-related products liability
case against nineteen separate defendants. 330 S.W.3d at 68.
All but two defendants settled or were dismissed from the
case, leaving only the two remaining defendants to proceed to
trial. Id. The other seventeen defendants were
considered "empty-chair" defendants at trial.
Id. Dexter was a pipefitter from 1946 until 1984.
Id. He was diagnosed with lung cancer and sued the
nineteen defendants for products liability and negligence.
Id. at 69. The nineteen companies either made
asbestos products, which Dexter used in his work, or owned
buildings in which Dexter was exposed to asbestos.
Id. At trial, CertainTeed was one of the present
defendants; the proof showed that Dexter was only exposed to
CertainTeed's products for one week out of his forty-year
career. Id. Despite a wealth of proof that much of
Dexter's exposure was due to the empty-chair defendants,
the jury allocated no fault to any of the absent
defendants. Id. The trial court, upon defense
motion, granted a new trial because this failure to ...