Opinion
NO. 2012-CA-000277-MR
02-01-2013
KATHRYN REED APPELLANT v. DR. ANTHONY BARNES AND CAPITAL FAMILY PHYSICIANS, P.S.C. APPELLEES
BRIEF FOR APPELLANT: Jasper D. Ward Layne Stackhouse Louisville, Kentucky BRIEF FOR APPELLEES: Clayton L. Robinson Adam W. Havens Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 08-CI-01321
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. COMBS, JUDGE: Kathryn Reed appeals the orders of the Franklin Circuit Court which denied her motions for directed verdict and for judgment notwithstanding the verdict. After our review, we affirm.
On July 17, 2007, Reed's 25-year-old son, Brent, visited Dr. Anthony Barnes complaining of chest pain. Dr. Barnes conducted a physical exam of Brent, which included an EKG. Dr. Barnes's notes included an observation that Brent appeared to have Marfanoid features. Marfan's Syndrome is a genetic disease that causes a person's body to develop defective connective tissues. Among other indicators, Marfan patients tend to be tall and thin. Brent informed Dr. Barnes that he had already been tested for Marfan's Syndrome but did not have it. Dr. Barnes prescribed a pain medication and scheduled a precautionary echocardiogram for the next day. However, while Brent was showering in preparation for his appointment on July 18, he passed away suddenly and tragically.
An autopsy revealed that Brent died from an aortic dissection, which is a rupture of the aorta. The autopsy also revealed that Brent did indeed have several of the physiological markers of Marfan's Syndrome besides his height and thin build. Aortic dissection is a significant complication associated with Marfan's Syndrome.
On August 12, 2008, Reed filed a lawsuit in Franklin Circuit Court and alleged that because Dr. Barnes failed to identify Brent as having had Marfan's Syndrome and did not immediately conduct emergency testing, Dr. Barnes's omissions constituted negligence resulting in Brent's death. A jury trial was held from October 3, 2011 - October 11, 2011. Both Reed and Dr. Barnes presented experts and witnesses. At the close of her proof, Reed made a motion for a directed verdict, which the trial court denied. Ultimately, the jury decided in favor of Dr. Barnes.
On October 26, 2011, Reed filed a motion asking the court for a judgment notwithstanding the verdict (JNOV) or an order for a new trial. The court held a hearing on the motion on November 11, 2011. On January 12, 2012, the court entered an order denying the motion. This appeal follows.
We first note that we are unable to consider portions of Reed's brief. It includes numerous citations to trial testimony which are not included in the record. The record included only a video recording of one day of trial and the transcribed testimony of selected experts. Reed's brief includes facts and arguments supported by testimony that is unavailable to us. "[M]aterials and documents not included in the record shall not be introduced or used as exhibits in support of briefs." Kentucky Civil Rule[s] of Procedure (CR) 76.12(4)(c)(vii). Furthermore, when portions of the record are missing, we "must assume that the [record] supports the decision of the trial court." Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985). With that background in mind, we shall proceed to examine the merits of this case.
Reed has supplemented the record in the form of a thumb drive that contains mere selections from Dr. Barnes's testimony. The testimony is presented in a montage fashion, out of chronological order, and using sound-bites. Such a submission lacks the certainty and reliability of presentation of the complete, unadulterated record. In short, it is not the record as contemplated by our rules of civil procedure, and the opportunity for mischief is obvious. In addition, the thumb drive in this case contained data pertaining to other cases that could amount to breaches of attorney-client privilege and of the duty of confidentiality.
When presented with a motion for directed verdict, "the trial court must 'draw all fair and rational inferences from the evidence in favor of the party opposing the motion, and a verdict should not be directed unless the evidence is insufficient to sustain the verdict.'" Kroger Co. v. Willgruber, 920 S.W.2d 61, 64 (Ky. 1996) (quoting Spivey v. Sheeler, 514 S.W.2d 667, 673 (Ky. 1974)). Our review of a trial court's denial of both motions for directed verdicts and for JNOVs is the same. Prichard v. Bank Josephine, 723 S.W.2d 883, 885 (Ky. App. 1987). The motions should have been granted only in "a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ." Dollar General Partners v. Upchurch, 214 S.W.3d 910, 915 (Ky. App. 2006) (quoting Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky. App. 1985)).
The basic elements of a negligence claim are duty, breach, and causation of injury. Grubbs ex rel. Grubbs v. Barbourville Family Health Center, 120 S.W.3d 682, 687 (Ky. 2003). "In Kentucky, if the physician's service falls below the expected level of care and skill and this negligence proximately caused injury or death, then all elements of a malpractice action have been met." Id. at 688.
In this case, Reed argues that Dr. Barnes admitted that he did not comply with the standard of care in his testimony because he had failed to rule out an aortic dissection in his diagnosis of Brent. It is important to examine Dr. Barnes's testimony in context:
Dr. Barnes's full testimony was made part of the record as a written transcript.
Q: You did not rule out aortic dissection because you did not think it was, quote, plausible. Is that correct?
A: I didn't do a CT that - which would have ruled out an aortic dissection. I did not have an indication to do it.
Q: Okay. Because you thought that it was not plausible that he was having an aortic dissection; isn't that true?
A: It was not plausible. That is correct.
We are not persuaded that this response was an admission of liability. Dr. Barnes elaborated in his testimony that at the time of the office visit, Brent did not manifest symptoms of an aortic dissection. His pain was tolerable enough that he was able to work that day, and the stethoscope and EKG examinations did not indicate any serious abnormalities. In fact, several experts agreed with Dr. Barnes that by all appearances, Brent's heart and lungs were completely normal for a man of his age. Furthermore, there was no dispute that Brent had ever been diagnosed with Marfan's Syndrome or that Dr. Barnes or any other doctor had the capability of diagnosing it on the spot. The experts testified that Dr. Barnes had complied with the standard of care; therefore, a genuine issue of material fact existed for a jury to address.
Defense experts' testimony is in the record -- both on video and in written testimony. Reed did not designate her own expert or lay witness testimony for the record.
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Nonetheless, even if Dr. Barnes's statement were deemed to have been an admission of liability, a question of causation remained. Several experts testified that based on evidence from the autopsy, Brent was not experiencing an aortic dissection or even a precursor condition at the time that he consulted Dr. Barnes. They agreed that even if Dr. Barnes had ordered a CT scan for the same day, it would not have indicated that Brent was on a fatal trajectory. The outcome would have been the same. Therefore, a material issue of fact remained on the causation element.
Thus, based on the evidence in the record, genuine issues of material fact remained for the jury to decide. The Franklin Circuit Court did not err in denying Reed's motions for directed verdict and JNOV. We affirm the order of the Franklin Circuit Court denying the motions at issue.
ALL CONCUR. BRIEF FOR APPELLANT: Jasper D. Ward
Layne Stackhouse
Louisville, Kentucky
BRIEF FOR APPELLEES: Clayton L. Robinson
Adam W. Havens
Lexington, Kentucky