Opinion
NO. 2018-CA-000493-MR
10-18-2019
GRAYSON COUNTY HOSPITAL FOUNDATION, INC., D/B/A TWIN LAKES REGIONAL MEDICAL CENTER APPELLANT v. JEFFREY KELSEY, ADMINISTRATOR OF THE ESTATE OF JUD KELSEY APPELLEE
BRIEFS FOR APPELLANT: James P. Grohmann Elizabeth A. Beal Louisville, Kentucky BRIEF FOR APPELLEE: Patrick S. McElhone Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE BRUCE T. BUTLER, JUDGE
ACTION NO. 14-CI-00041 OPINION
AFFIRMING
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BEFORE: GOODWINE, KRAMER AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: This is a wrongful death/medical malpractice action filed after Jud Kelsey fell off a commode and suffered a brain injury while a patient at Grayson County Hospital Foundation, Inc. d/b/a Twin Lakes Regional Medical Center (Twin Lakes). Following a jury verdict, the Grayson Circuit Court entered a judgment in favor of Jeffrey Kelsey, Administrator of the Estate of Jud Kelsey. Twin Lakes argues three errors occurred at trial: (1) the trial court erroneously permitted the Estate's expert witness to testify to an opinion not disclosed prior to trial; (2) the trial court erroneously permitted excerpts from the deposition of Twin Lakes' expert to be read to the jury that included questions regarding a publication by the Joint Commission on Accreditation of Healthcare Organizations (the Joint Commission) without laying a proper foundation as required for a learned treatise to be excepted from the hearsay rule; and (3) the trial court erred in denying its motion for directed verdict on causation. We conclude that the Estate's expert did not testify as to an undisclosed opinion. We further conclude that even if hearsay, the reference to the Joint Commission's publication was harmless and Twin Lakes was not entitled to a directed verdict.
In January 2013, seventy-two-year-old Jud was diagnosed with normal pressure hydrocephalus after he reported to Dr. Gregory Nazar that he was experiencing progressively worsening cognitive and balance issues. On February 13, 2013, Dr. Nazar surgically placed a ventriculoperitoneal shunt to drain excess fluid from Jud's brain.
Following his surgery, Jud was transferred to Grayson Manor Nursing Home for in-patient rehabilitation. The records from Grayson Manor documented that Jud was confused, needed maximum assistance when standing or sitting, was unable to balance without moderate to maximum assistance and had difficulty remembering. Soon after his admission to Grayson Manor, Jud developed a urinary tract infection and was transported to Twin Lakes on March 1, 2013. Upon his admission to Twin Lakes, the nursing staff concluded Jud was a high fall risk patient.
There was testimony that on March 4, 2013, Jud had improved. Gwen Waddell, R.N., who cared for Jud during his admission to Twin Lakes, testified he was alert and talking on that date and Jud's son testified that Jud was sitting up in his bed unassisted. However, ninety minutes before Jud fell, Twin Lakes' records noted Jud was "confused," "had weakness," was "unable to comprehend complex information," and had "impaired" short term memory.
At approximately 5:15 p.m. on March 4, 2013, nursing assistant Elizabeth Piercy helped Jud to the bedside commode in his hospital room. Piercy testified that Jud asked for privacy and without further discussion with Jud, Piercy left Jud alone on the bedside commode.
Several minutes later, a family friend arrived in the room and found Jud lying on the floor. Jud had apparently leaned forward, fell from the commode and hit his head. After it was determined that Jud suffered a subdural hematoma, Jud lost consciousness and he was transferred to Norton Audubon Hospital, where he passed away.
The Estate filed this action alleging that Twin Lakes "deviated from that standard of care and acceptable medical and hospital practice in treating and attending to" Jud and that Twin Lakes' negligence caused Jud to suffer "severe injuries leading to his death." The jury returned a verdict in favor of the Estate. The jury awarded $6,540.50 for past medical expenses, $50,000 for destruction of earning capacity and $150,000 for pain and suffering. A judgment was entered consistent with the jury's verdict.
Twin Lakes moved for a new trial. After its motion was denied, Twin Lakes appealed. Additional facts will be developed in the context of the issues presented.
The first two issues concern the trial court's admission of certain evidence. "[A]buse of discretion is the proper standard of review of a trial court's evidentiary rulings." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Twin Lakes argues it was deprived of a fair trial when the Estate's expert witness, Nurse Jayne McGrath, testified at trial that Twin Lakes should have a "no privacy" policy for certain patients while toileting. It contends that this opinion was one not disclosed prior to trial in violation of Kentucky Rules of Civil Procedure (CR) 26.02(4) requiring the disclosure of experts and their opinions upon request by an opposing party.
As noted in Clephas v. Garlock, Inc., 168 S.W.3d 389, 394 (Ky.App. 2004), "[t]he discovery of the substance of an expert witness's expected testimony is essential to trial preparation." Consequently, the rule requires more than a "generalized statement outlining a broad subject matter about which an expert may testify[.]" Id. at 393.
In Clephas, the medical expert admitted he had not formed an expert opinion until the morning of his testimony. Id. Moreover, the plaintiff had not produced the expert for deposition despite having been ordered to do so and waited until the trial commenced before providing the expert with necessary material to form an opinion. Id. at 394. The plaintiff's pretrial disclosure was entirely generic. The Court ruled that the trial court abused its discretion in admitting the undisclosed expert testimony. Id. at 395.
This case is entirely different from Clephas. In its response to interrogatories from Twin Lakes, the Estate elaborated on the basis for its claim:
[Regardless] of the fact [Jud] was of advanced age, presented to the hospital with confusion, was unable to walk on his own, and had recently undergone brain surgery, [Jud] was left alone at his bedside commode and was allowed to fall from the bedside commode causing a brain injury which led to his death.The Estate disclosed Nurse McGrath as an expert regarding the standard of care and Twin Lakes' breach of that standard. In its expert witness disclosure, the Estate stated:
It is anticipated that Nurse McGrath will also testify that the fall protocols and/or policies and procedures of the hospital are vague and insufficient and that the training of the hospital staff is insufficient with regard to the handling of fall risk patients such as Jud Kelsey.
On November 11, 2016, Twin Lakes took the discovery deposition of Nurse McGrath who testified extensively about Twin Lakes' fall policies and opined that although Twin Lakes satisfactorily identifies those patients at high risk for falling, she disagreed that Twin Lakes' intervention policy is sufficient. She stated:
There's nothing in here about hourly rounding. There's nothing in here about bed alarms. There's nothing in here about toileting. There's nothing in here about having the patient's room closer to the nurses' station so you have more people keeping an eye on them. There's nothing in here about use of sitters; if the patient is unmanageable and not complying at all, consider a sitter or someone that the hospital would hire to—there's nothing in here about that, and I would expect that would be in a fall policy.(Emphasis added). When asked if the things she listed were those she likes to see in a fall policy, Nurse McGrath responded "yes." In her deposition, Nurse McGrath was specifically asked about toileting and the privacy requests of the patient.
Q. Does your emergency department fall policy state that a patient must not be left alone on the bedside commode?Nurse McGrath further testified in her deposition that a patient has a right to refuse care but, in that instance, it is the nurse's duty to educate the patient as to why the care is important and document that the explanation was given. She explained the proper procedure:
A. If they have been identified as high fall risk, yes. Not only—our ED policy very much mimics the house-wide policy, and the house-wide policy says the same thing: if a patient has been identified as being a high fall risk, they are not to be alone in the toilet or during that process of toileting, whether it's a bedside commode or . . . .
If you were a high fall risk, I would explain—I would say something to the effect of, you know, I really don't want you to fall. I'm going to stay in here. I'll turn my back to you. I will give you privacy. I'm not going to watch, but I'm right here in case you get dizzy or fall. If you fell and broke a bone—this is kind of our mantra that we have been—that we say—if you were to fall, I would—I don't want you to break any bones. It would keep you from going home or pursuing what you want to do. After giving an explanation like that and you still refused, I would not—I would give you that privacy. I mean, I would give you that privacy.
Twin Lakes argues that despite the recited disclosures by the Estate and the opinions given by Nurse McGrath in her deposition, she offered a new opinion at trial, citing the following portion of her testimony:
A. My criticism is that this policy does not address toileting. And I saw that come out in the nurses'
depositions. Because when Nurse Gwen and Nurse Elizabeth were asked about, you know, preventing falls, would you stay with a patient, they had the same answer: it depends . . . with [Jud], he may be talking to me now but there is no guarantee that he will know exactly five minutes from now what he was supposed to do . . . and so we can't just say it depends, we have to have a very consistent approach. And so my criticism is about the policy not having that consistent approach.Unlike in Clephas where there was virtually no disclosure of an expert's opinion prior to trial, Nurse McGrath specifically addressed toileting and high fall risk patients in her deposition. No reasonable person could be surprised about Nurse McGrath's opinion at trial that a nurse should remain with a high fall risk patient during toileting except when the patient refuses assistance. Although the wording used may have been different at her deposition, her opinion at trial was not substantively different than the opinion expressed in her deposition. The trial court did not abuse its discretion in permitting her testimony.
Q. And so would you recommend that be added to the policy?
A. I think there should be an intervention about remaining with the patient during toileting for high fall risk, provided that the patient agrees to it.
Q. And by doing that is that a way to alleviate that "it depends" argument—maybe take out the factors and have one solid red line?
A. Yes.
The second evidentiary issue presented by Twin Lakes concerns the Estate's cross-examination of Twin Lakes' expert Jenny Beerman, R.N. during her deposition. Nurse Beerman was not called at trial but her deposition was read into evidence. Nurse Beerman testified that Twin Lakes' nurses did not breach the standard of care owed to a high fall risk patient by leaving Jud alone on the bedside commode.
Prior to Nurse Beerman's testimony it had been established Twin Lakes was a member of the Joint Commission, a national organization that surveys and accredits hospitals and health care organizations on a voluntary basis and provides national standards for patient care. Nurse McGrath had also testified, without objection from Twin Lakes, that the Joint Commission required all hospitals to maintain a fall risk policy.
In an effort to impeach Nurse Beerman, the Estate cross-examined her with questions regarding high fall risk patient standards promulgated by the Joint Commission. Although Nurse Beerman testified that the Joint Commission was a national accrediting organization, she did not know the Joint Commission publishes bulletins and papers advising on how to handle different hospital situations and was not familiar with the Joint Commission publication "Reducing the Risk of Falls in Your Health Care Organization." The Estate's counsel then continued cross-examination:
Q. [I]n this book, "Reducing the Risk of Falls in Your Healthcare Organization," which is put out by the Joint Commission, take a look at it.The testimony was read to the jury, but the Joint Commission publication was not introduced into evidence at trial. Twin Lakes argues that the trial court abused its discretion in permitting the Estate's counsel to read the above part of the deposition to the jury without a proper foundation to permit its admission as a learned treatise.
I want to turn your attention to—they have a sample fall risk assessment.
A. Correct.
Q. You can look where my sticky arrow is. Do you agree with me that it says for high risk, "Do not leave unattended on the bedside commode or toilet?"
A. I can agree with you that it says that.
Learned treatises are hearsay but are admissible if "established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits." Kentucky Rules of Evidence (KRE) 803(18).
In Humana of Kentucky, Inc. v. McKee, 834 S.W.2d 711 (Ky.App. 1992), the Court held that the trial court did not abuse its discretion in admitting evidence of the guidelines from the Joint Commission. The Court made no reference to the Joint Commission guidelines as a learned treatise but reasoned that the guidelines gave the jury some reasonable criteria for measuring care. The Court explained:
In our opinion this evidence, although not admissible to establish the standard of care required of Humana, was admissible to show the procedures which a reasonably prudent hospital, in like or similar circumstances to Humana, would follow in drawing a patient's blood specimen. Further, it gave the jury some reasonable criteria to utilize in determining whether the procedures which Humana claimed it followed in Brian's case complied with its duty of ordinary care. Therefore, we conclude that this evidence was relevant, admissible, and material to the issue submitted to the jury by Instruction No. 2b. Moreover, the fact that these guidelines and regulations may be voluntary does not detract from the fact that they provided useful information which the jury could utilize in reaching its decision.Id. at 723. As Humana instructs, the Joint Commission guidelines cannot be excluded on the grounds that they are irrelevant and immaterial.
Twin Lakes contends that the issue is not whether the Joint Commission publication is relevant and material but, instead, is whether it is a learned treatise that could not be read to the jury absent a proper foundation. It points out that Nurse Beerman, the only witness asked about the publication, was unfamiliar with it. The Estate argues that the publication is not a learned treatise citing Davenport by and through Davenport v. Ephraim McDowell Memorial Hosp., Inc., 769 S.W.2d 56 (Ky.App. 1988), where the Court considered whether guidelines published by the American Society of Post Anesthesia Nurses were a learned treatise. The Court held the guidelines were not a learned treatise but were more akin to standards admissible as a guide for measuring care. Id. at 62. The Estate argues the portion of the publication of the Joint Commission read by its counsel when cross-examining Nurse Beerman is likewise an admissible standard rather than hearsay.
We do not decide which of the two arguments presented is persuasive. Even if the trial court erred in permitting counsel to read the objected-to portion of Nurse Beerman's deposition to the jury, it was not an error that we would conclude warrants reversal. Under a harmless error analysis we determine whether "there is any reasonable possibility that absent the error the verdict would have been different." Crane v. Commonwealth, 726 S.W.2d 302, 307 (Ky. 1987). There was convincing evidence that Jud was a high fall risk patient. Nurse McGrath testified extensively about the procedures to be followed by a healthcare provider when a high fall risk patient is toileting, including not leaving the patient unattended. The reading of the Joint Commission guidelines to the jury stating the same procedure was cumulative. It cannot be said that in light of the evidence of Twin Lakes' breach of its standard of care, there is a reasonable probability that without counsel's brief reference to the Joint Commission's publication, the verdict would have been different.
The final issue presented is whether Twin Lakes was entitled to directed verdict on causation. It argues that although there was testimony that the fall caused Jud's death, there was no testimony that any negligence caused the fall.
Twin Lakes moved for a directed verdict and renewed its motion at the conclusion of the proof and both motions were denied. After the entry of the judgment, Twin Lakes moved for a new trial, but did not move for a judgment notwithstanding the verdict (JNOV). The Estate argues that absent such motion, this Court cannot direct that a directed verdict be entered. See Flynn v. Songer, 399 S.W.2d 491 (Ky. 1966) (where a party made a motion for a directed verdict but did not later file a motion for JNOV and moved only for a new trial, the only remedy on appeal would be a new trial). Because there is no substance to Twin Lakes' argument for a directed verdict, we will not decide this matter on what could be deemed a procedural pitfall.
A motion for directed verdict should only be granted when "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." Bierman v. Klapheke, 967 S.W.2d 16, 18-19 (Ky. 1998). On appellate review of the trial court's denial of a motion for directed verdict, this Court "must consider the evidence in its strongest light in favor of the party against whom the motion was made and must give him the advantage of every fair and reasonable intendment that the evidence can justify." Lovins v. Napier, 814 S.W.2d 921, 922 (Ky. 1991). We will not reverse unless the verdict is "'palpably or flagrantly' against the evidence so as 'to indicate that it was reached as a result of passion or prejudice.'" Lewis v. Bledsoe Surface Min. Co., 798 S.W.2d 459, 461-62 (Ky. 1990) (quoting NCAA By and Through Bellarmine College v. Hornung, 754 S.W.2d 855, 860 (Ky. 1988)).
Although Twin Lakes argues that there was no evidence that its alleged negligence caused Jud to fall, there was ample evidence as to causation. Nurse McGrath testified that if a nurse complies with the standard of care, falls can by prevented by having a nurse physically present while the patient is toileting. Dr. George Nichols testified that Jud's fall and subsequent injury caused his death.
Twin Lakes cites to an unpublished case, Estate of Powers ex rel. Ray v. Murphy, Nos. 2012-CA-001691-MR and 2012-CA-001743-MR, 2013 WL 5886810 (Ky.App. Nov. 1, 2013), where this Court held that the testimony of the same Dr. Nichols did not establish causation. Not only is that case unpublished, but our decision was based on the fact that Dr. Nichols testified he could not opine as to the cause of death. Here, Dr. Nichols gave an opinion.
For the reasons stated, the judgment of the Grayson Circuit Court is affirmed.
GOODWINE AND KRAMER, JUDGES, CONCUR IN RESULT ONLY. BRIEFS FOR APPELLANT: James P. Grohmann
Elizabeth A. Beal
Louisville, Kentucky BRIEF FOR APPELLEE: Patrick S. McElhone
Louisville, Kentucky