Andie Brent Camden OBryan Brown amp Toner PLLC Discoverable Information Baptist Health Richmond v Clouse amp Agee 2015SC000657MR Rendered September 22 2016 Supreme Court revisits question of what if anything is protected by PSQIA ID: 565523
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Slide1
2015-2016 Kentucky Health Care Case Law Update
Andie Brent Camden – O’Bryan Brown & Toner, PLLCSlide2Slide3
Discoverable Information
Baptist Health Richmond v. Clouse & Agee 2015-SC-000657-MR
Rendered September 22, 2016
Supreme Court revisits question of what, if anything is protected by PSQIA.
Information
required for state mandated reports not protected.
Act
not intended to relieve of duty to file state reports
.
Provider has burden of proving Act
applies.
In camera review required in this
case.
Court claims to be finding middle ground between plurality and dissent in
Tibbs
.Slide4
Punitive Damages
Saint Joseph Healthcare, Inc. v. Larry O’Neil Thomas – 2014-SC-000008-DG Rendered May 5, 2016
Supreme Court
unanimously
upholds punitive damage award of
$1,450,000.00
under EMTALA.
Compensatory
damages of $3,750.00
Ratio of
386:1
Troubling facts led Court to uphold ratio.
Independent contractors are hospital responsibility under EMTALA.
Hospital ratified conduct based on specific facts in this case.Slide5
INFORMED CONSENTSlide6
Harrington v. Argotte –2015 WL 4597536 – 2014-CA-001050 – July 31, 2015
Reversed trial court’s grant of directed verdict after plaintiff’s opening statement.Plaintiff’s counsel admitted no expert would testify on informed consent issue.Trial court’s ruling that expert testimony was required was premature.
Trial court believed as plaintiff was given some information an expert was required.
Court felt alleged failure to disclose risk may have been obvious to a layman.
DR Granted on February 10, 2016.Slide7
Sargent v. Shaffer467 S.W.3d 198 – August 20, 2015
Defense verdict in Fayette county on question of alleged negligent care during laminectomy and on separate informed consent instruction.Court of Appeals affirmed verdict.Supreme Court reversed on informed consent instruction.
Decision to give instruction reviewed for abuse of discretion; content of instruction
de novo
.
Instruction needed to include all of KRS 304.40-320
Standard of care met;
and
“reasonable individual” understands the hazards of treatment.Slide8
Kentucky Board of Medical
Licensure CaseSlide9
Bernard C. Moses, M.D. v. KBML2014-CA-000783 – February 2, 2016 – 2016 WL 551431
Doctor appealed revocation of license.He had stormed out of hearing with Board.
Court held that doctor presented no evidence that the Board did not consider the record in making the decision.
Hearing officer is not required to have medical background or medical training.Slide10
Medicaid ReimbursementSlide11
Cabinet HFS v. Owensboro Mercy2015-CA-000229 – August 12, 2016 – 2016
Cabinet would not reimburse for admission as it was not medically necessary.Also refused to pay for necessary services at outpatient rate.
Court held that Cabinet could not deny payment at outpatient rate as it had determined actual services provided were necessary.Slide12
Recognition of new claim!Slide13
Negligent Credentialing2016 WL 929507 – Court of Appeals – March 11, 2016
Spalding v. Spring View Hospital – Marion Adams v. Lake Cumberland Reg. Hosp. – PulaskiJones v. Spring View Hospital – Marion
Court moved by the changing nature of hospitals from charitable to corporate.
Hospital has independent duty to select and retain competent independent physicians.
We are one of 29 states that recognize
Final word?
DR GRANTED – October 13, 2016Slide14
Long Term Care CasesSlide15
Extendicare Homes v. Whisman
478 S.W.3d 306 – Supreme Court – September 24, 2015Issue of arbitration for wrongful death claims and limits on general power of attorney.Wrongful death claim belongs to estate, not decedent.
Decedent can’t waive right to court for wrongful death claim before death.
Furthermore, waiver of right to court for personal injury claim will not be inferred in broad power of attorney.
4 – 3 decisionSlide16
GGNSC Frankfort, LLC v. Richardson
2013-CA-000245 Rendered September 16, 2016 – Cites Whisman
- Son had power of attorney for mother and signed admission forms to nursing home
- Form contained arbitration agreement.
- Wrongful death claim filed
- Motion to compel arbitration denied and affirmed
- Waiver of right to trial not inferred in broad power of attorney, must be specific.
Slide17
Overstreet v. Kindred479 S.W.3d 69 – Supreme Court – August 20, 2015
Personal Injury and personal property claims are subject to one year limitation.These claims survive the death of a resident.Claims brought under KRS 216.515 that are distinguishable from personal injury claims are subject to 5 year limitation.KRS 216.515 claims do not survive death and must be brought by patient or guardian while patient is alive.Slide18
Richmond Health Fac. v. Clous
473 S.W. 3d 79 – Supreme Court -- October 29, 2015Affirmed denial of writ during discovery disputeFacility sought to protect financial data under FQAP privilegePlaintiff asserted that nursing home diverted necessary funds to enhance profits
Requested financial data deemed relevant to possible punitive damage claim.
Nursing home failed to show applicability of FQAP.Slide19
Immunity, et al.Slide20
Sietsema v. Adams 2015 WL 4776304 – Court of Appeals – August 14, 2015
Inmate plaintiff suffered for multiple days with bowel obstruction.Jail contracted with corporation to provide inmate care.Medical Director unaware of patient prior to hospitalization.
Summary judgment based on lack of expert and immunity reversed by Court of Appeals.
Court applied
res
ipsa
loquitur
exception based on care giver admissions re lack of knowledge and earlier intervention.Slide21
Sietsema v. Adams
2015 WL 4776304 – Court of Appeals – August 14, 2015Inmate could testify to his pain and suffering caused by undisputed delay.
Court also held that corporation that contracted to provide medical care was not entitled to immunity.
If company did not have immunity, neither did employees.Slide22
Pauly v. Chang & UKMC
2014-CA-000404 – December 11, 2015 – 2015 WL 8488910Physician falls from bucket truck while trimming trees on propertyPrior to surgery at UKMC, dies from transected aortaJury verdict for doctors and immunity dismissal for UKMC affirmed.
Questions regarding administrators actions did not involve questions of care, thus sovereign immunity appropriate.
Court declined to extend loss of parental consortium beyond the age of majority.Slide23
Pauly v. Chang & UKMC
2014-CA-000404 – December 11, 2015 – 2015 WL 8488910Notes form Trauma Conference/Peer Review of care not admissible even though turned over in discovery.Trauma conference “highly critical” examination – beyond standard of care
Trial court also precluded plaintiff from admitting medical records of another patient with similar condition that survived, did allow to discuss.
Trial court excluded testimony regarding negligence of patient with respect to bucket truck.
Newspaper article final day of trial regarding malpractice in Kentucky and ER issues did not require new trial.Slide24
Ex parte communication with treating non-experts…Slide25
Caldwell v. Chauvin2014-SC-00390 – June 11, 2015 – 464 S.W.3d 139
Nothing precludes ex parte conversation with non-expert physician fact witnesses.HIPPA controls disclosure of protected information in that meeting. Court order required to allow disclosure.Physician does not have to agree to meet.Slide26
Loss of Chance DoctrineSlide27
Douglas v. Advanced Pain Medicine2015 WL 4776251 – August 14, 2015
Fayette Circuit Court granted summary judgment because Kentucky does not recognize loss of chance doctrineCourt of Appeals affirmed in part and reversed in part.Summary judgment appropriate on issue of whether doctor’s alleged negligence and diagnosis delay caused terminal illness.
Not appropriate on question of whether delay caused increased pain and suffering and more extensive medical care.Slide28
Other Medical CasesSlide29
Eggemeyer v. Jefferson2015 WL 3643420 – June 12, 2015
Motion for new trial denied, reversed and remanded for new trial by Court of Appeals.Case on re-trial as mistrial declared when defendant physician continually referenced insurance
during first trial. Court deferred question of sanctions on defendant.
New counsel obtained by defendant before second trial
Trial judge orders no new legal or medical theories and new counsel agrees. (x3)
In opening new counsel raises multiple new theories. Slide30
Eggemeyer v. Jefferson2015 WL 3643420 – June 12, 2015
Judge admonishes juryCounsel continues to violate ruling on new theories.Judge is very upset.Plaintiff never asks for mistrial.
Motion for new trial denied after defense verdict
$58,000.00 sanction for Defendant physician due to issues in first trial.
Court of Appeals called failure to grant new trial egregious and granted new trial.
Also upheld the sanctions.
DR Granted March 9, 2016.Slide31
Norton v. Willett2016 WL 1068464 - March 17, 2016
Norton claimed privilege on certain documents.Provided to judge for in camera review.Norton filed for a writ in the interim and before an upcoming deposition.Judge provided the documents directly to counsel to keep deposition on schedule.
COA denied writ
Supreme Court says trial judge must respect writ process and not get in document delivery business.
Remanded to COA to see what can be done. Even though documents produced, issue not moot.Slide32
Medical Malpractice & Divorce?Slide33
Bailey v. Bertram471 S.W.3d 687 – May 14, 2015
Dr. Bailey is sued by two patients after his divorce.Portion of divorce record sealed due to sensitive nature.Plaintiffs in med mal cases moved to intervene in divorce to unseal record claiming relevance of his extra-marital activities and state of mind during their treatment.
Judge allows intervention and unseals – gives 21 days to petition higher court
Writ filed, denied on merits by Court of Appeals
Supreme Court believes intervention in error. Plaintiffs could have obtained information via other discovery.
BUT – writ not the remedy, should have appealed order allowing intervention and unsealing record.Slide34
Procedueral IssuesSlide35
Faller v. Goess-Saurau2015 WL 5173444 September 4, 2015
Default judgment reversed by Court of AppealsPlaintiff filed amended complaint prior to running of time to answer original complaint. Default granted on original complaint prior to service of amended complaint.
Court held that filing of amended complaint before expiration of time to answer original extends that time (for answering original) to the deadline for answering the amended complaint.Slide36
Ky. Farm Bureau v. Conley456 S.W.3d 814 April 2, 2015
Doctrine of substantial compliance 59.05 motion filed without stating specific grounds was sufficient to toll time for filing notice of appeal.Court of Appeals dismissal reversed by Supreme Court.
While failure to make 59.05 motion comply with rule could result in sanctions, substantial compliance doctrine requires that it suffices to delay deadline for notice of appeal.