Opinion
No. 2007-CA-001192-MR, 2007-CA-001244-MR.
December 5, 2008.
Appeal from Fayette Circuit Court Honorable Robert Overstreet, Special Judge Action No. 00-CI-01364. Cross-Appeal from Fayette Circuit Court Honorable Robert Overstreet, Special Judge Action No. 00-CI-01364.
Charles A. Grundy, Jr., Lexington, Kentucky, Elizabeth R. Seif, Lexington, Kentucky, Darryl Lewis, West Palm Beach, Florida, Briefs for Appellants/Cross-Appellees.
Elizabeth R. Seif, Oral Argument for Appellants/Cross-Appellees.
Robert F. Duncan, Jay E. Ingle, K. Brad Oakley, Lexington, Kentucky, Briefs for Appellee/Cross-Appellant.
Robert F. Duncan, Jay E. Ingle, Oral Argument for Appellee/Cross-Appellant.
Before: CLAYTON, DIXON, AND WINE, JUDGES.
OPINION
FACTS
The parties vigorously disagree about the facts of this case. However, they agree that James Milford Gray (Gray), age 39, arrived at St. Joseph Hospital's (Hospital) emergency room on April 8, 1999, at 8:08 p.m. He was complaining of abdominal pain, constipation for four days, nausea and vomiting. He was seen by physician's assistant Julia Adkins (Adkins) and Dr. Barry Parsley. He received medication for pain and later received an enema and manual disimpaction of his colon. Although lab tests were ordered, either Gray refused to cooperate, or upon reorder, they were never conducted. Likewise, no x-rays were conducted.
Gray was discharged at 12:40 a.m. on April 9. He was taken by ambulance to the homes of different family members with whom he had previously stayed. However, no family member agreed to provide a place to stay, so he was returned to the Hospital. Upon his return to the emergency room, the Hospital made arrangements for Gray to stay at the nearby Kentucky Inn.
Gray returned to the Hospital at 5:25 a.m. after the staff of the Kentucky Inn contacted 911 on his behalf. He had been vomiting dried blood for several hours. He was again seen and evaluated by physician's assistant Adkins and Dr. Parsley. Lab tests and x-rays were conducted during this visit. Subsequently, he was discharged by Dr. Jack Geren at 12:15 p.m.
However, Gray died later that day at a family member's home. The autopsy report listed the cause of death as purulent peritonitis caused by a rupture of a duodenal ulcer due to duodenal peptic ulcer disease. The autopsy report also listed constrictive atherosclerotic coronary artery disease as a contributory cause of Gray's death.
Gray's Estate (Estate) brought this action on April 8, 2000, alleging medical negligence against the Hospital, Dr. Joseph Richardson (a physician who treated Gray during an earlier visit to the Hospital on March 9, 1999), Dr. Parsley, Dr. Geren, physician's assistant Adkins, and several members of the nursing staff. In addition, the Estate alleged that the Hospital violated the Emergency Medical Treatment and Active Labor Act (EMTALA). After a lengthy period of discovery, the matter proceeded to trial on October 3, 2005. However, that trial ended in a mistrial.
Prior to the second trial, the Estate settled with Drs. Richardson, Parsley and Geren. The matter then proceeded to a jury trial on the claims against the Hospital on November 7-9, 14-17, and 21-23, 2005. The jury returned verdicts for the Estate on both the medical negligence and the EMTALA claims. The jury apportioned fault as follows: 15% to the Hospital; 0% to Dr. Richardson; 30% to Dr. Parsley and physician's assistant Adkins; 30% to Dr. Geren; and 25% comparative fault to Gray. The jury awarded compensatory damages of $25,000.00, of which the Hospital's share was $3,750.00. The jury also assessed punitive damages against the Hospital in the amount of $1,500,000.00.
Thereafter, the Hospital filed motions for a judgment notwithstanding the verdict and for a new trial. The trial court denied the motions with respect to the jury's findings of liability and the award of compensatory damages. However, the court concluded that the award of punitive damages was clearly excessive and therefore a new trial on that issue was in order. This appeal and cross-appeal followed. I. EMTALA CLAIM
The Hospital filed a motion to dismiss the Estate's appeal from the order granting a new trial on punitive damages, arguing that this issue was not appealable. This Court denied the Hospital's motion in an order entered on July 30, 2008.
In its cross-appeal, the Hospital first argues that the Estate failed to establish the elements of a viable claim under EMTALA. Specifically, the Hospital raises two arguments. First, the Hospital contends that a plaintiff cannot simultaneously pursue a claim under EMTALA and for medical negligence. Second, the Hospital argues that it cannot be liable under EMTALA merely because its agents failed to correctly diagnose Gray's condition. Rather, the Hospital contends that it could only be liable for failing to stabilize an emergency medical condition which its physicians actually detected.
The EMTALA is found at 42 U.S.C. § 1395dd. As explained in Vickers v. Nash General Hospital, Inc., 78 F.3d 139 (4th Cir. 1996):
Congress enacted EMTALA in 1986 "to address a growing concern with preventing 'patient dumping,' the practice of refusing to provide emergency medical treatment to patients unable to pay, or transferring them before emergency conditions were stabilized." Power v. Arlington Hosp. Ass'n, 42 F.3d 851, 856 (4th Cir. 1994). The Act accordingly imposes two principal obligations on hospitals. First, it requires that when an individual seeks treatment at a hospital's emergency room, "the hospital must provide for an appropriate medical screening examination . . . to determine whether or not an emergency medical condition" exists. 42 U.S.C. § 1395dd(a). Second, if the screening examination reveals the presence of an emergency medical condition, the hospital ordinarily must "stabilize the medical condition" before transferring or discharging the patient. 42 U.S.C. § 1395dd(b)(1). . . .
The Act thereby imposes a "limited duty on hospitals with emergency rooms to provide emergency care to all individuals who come there." Brooks v. Maryland General Hosp., Inc., 996 F.2d 708, 715 (4th Cir. 1993). The duty created by EMTALA is a "limited" one in a very critical sense: "EMTALA is not a substitute for state law malpractice actions, and was not intended to guarantee proper diagnosis or to provide a federal remedy for misdiagnosis or medical negligence." Power, 42 F.3d at 856. We have frequently reaffirmed this limit on the Act's scope. Id. at 869 (Ervin, C.J., concurring in part and dissenting in part) ("Virtually every decision addressing EMTALA has recognized that Congress did not intend for the Act to be a substitute for a state medical malpractice action."); Brooks, 996 F.2d at 710 ("The Act was not designed to provide a federal remedy for misdiagnosis or general malpractice.");
Baber v. Hospital Corp., 977 F.2d 872, 880 (4th Cir. 1992) ("EMTALA is no substitute for state law medical malpractice actions.").
Vickers, 78 F.3d at 142.
We disagree with the Hospital that claims under EMTALA and for medical negligence are mutually exclusive. The case law makes it clear that these claims are separate and have different elements of proof. Nevertheless, a failure to provide appropriate medical screening and stabilization of an emergency medical condition may amount to both a violation of EMTALA and medical negligence. See Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266, 270 (6th Cir. 1990). Thus, the fact that the Estate is asserting a medical negligence claim does not automatically preclude it from bringing a claim against the Hospital under EMTALA.
The more germane issue is whether the Estate has presented sufficient evidence to support a claim under EMTALA. The trial court dismissed the Estate's claim that the Hospital did not provide an appropriate medical screening examination, and the Estate does not appeal from that ruling. Consequently, the only issue presented to the jury was whether the Hospital failed to stabilize Gray's emergency medical condition prior to discharging him. The Hospital argues that the Estate cannot sustain an action under the Act because Gray actually received treatment. Even if the treatment was inadequate or negligent, the Hospital maintains that such treatment fulfilled its duties under EMTALA to stabilize Gray's emergency medical condition. The Hospital further argues that it cannot be liable under EMTALA for failing to detect Gray's duodenal ulcer, but only for failing to stabilize and treat the emergency medical conditions which its physicians actually detected.
We agree with the Hospital that liability under EMTALA does not rest on its negligence for failing to detect and treat a condition. However, the jury instruction on the EMTALA claim explained that the Hospital's duty to stabilize arose "if it determined that . . . Gray had an emergency medical condition." The instruction's definition of "emergency medical condition" is the same as the statutory definition found at 42 U.S.C. § 1395dd(e)(1).
The Hospital relies heavily on the Sixth Circuit's opinion in Cleland v. Bronson Health Care Group, supra, which held, among other things, that a failure-to-stabilize claim under EMTALA cannot be based solely on a negative outcome. Rather, for liability to arise, the doctors on duty must have actual knowledge of the patient's emergency medical condition. Id. at 268-69. See also Jackson v. East Bay Hospital, 246 F.3d 1248, 1257 (9th Cir. 2001); Summers v. Baptist Medical Center Arkadelphia, 91 F.3d 1132, 1140 (8th Cir. 1996); Vickers, 78 F.3d at 145; Urban v. King, 43 F.3d 523, 525-26 (10th Cir. 1994); Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1041 (D.C. Cir. 1991). In other words, a hospital does not violate its failure to stabilize under EMTALA if it fails to detect or if it misdiagnoses an emergency condition. Baker v. Adventist Health, Inc., 260 F.3d 987, 993-94 (9th Cir. 2001).
However, the Hospital further attempts to equate knowledge of a specific diagnosis with knowledge of the symptoms of an emergency medical condition. We disagree. The duty to stabilize under EMTALA "to provide such medical treatment of the [emergency medical] condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility[.] . . ." 42 U.S.C. § 1395dd(e)(3)(A). The term "emergency medical condition" means
a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in-
(i) placing the health of the individual . . . in serious jeopardy,
(ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part[.]
When these definitions are read together, it is clear that the duty to stabilize under EMTALA does not require that the Hospital had actual knowledge of a specific condition. Rather, the duty arises upon the Hospital's determination that the patient is manifesting symptoms of sufficient severity as to constitute an "emergency medical condition." In assessing the physical stability of a patient, Courts have generally focused on the EMTALA requirement that "no material deterioration" of the condition is likely. Thomas v. Christ Hospital and Medical Center, 328 F.3d 890, 893 (7th Cir. 2003), citing St. Anthony Hospital v. United States Dep't of Health and Human Services, 309 F.3d 680, 697 (10th Cir. 2002); Harry v. Marchant, 291 F.3d 767, 771 (11th Cir. 2002); Bryant v. Adventist Health Sys./West, 289 F.3d 1162, 1167 (9th Cir. 2002).
In Cleland v. Bronson Health Care Group, supra, and Vickers v. Nash General Hospital, supra, the respective hospitals' failures to diagnose potentially life-threatening conditions were arguably negligent. Nevertheless, the Courts in both cases dismissed the EMTALA claims, noting that neither hospital had reason to know that the patients' conditions were not stable, that the conditions were worsening in any way, or that the conditions presented any risk that might become life-threatening. Cleland, 917 F.2d at 271; Vickers, 78 F.3d at 145. In this case, the Hospital correctly notes that its physicians diagnosed Gray with "acute gastritis, with hemorrhage," and he was treated for this condition. The Hospital also points to Dr. Geren's conclusion that Gray was stable at the time of discharge. Thus, the Hospital maintains that these determinations, even if erroneous, would preclude a claim under EMTALA.
However, the Hospital's own records also show that Gray was in severe pain, was vomiting blood, and had an above normal respiratory rate, highly elevated white cell count, below normal red cell count, below normal lymph percentage, increased hematocrit, and below normal urine output and density. Finally, the Estate's EMTALA claim was not based only on the actions of the Hospital's physicians, but also on the actions of the Hospital's nursing staff who failed both to properly record and advise the physicians about the extent of Gray's distress. Based on this evidence and the testimony of the Estate's expert witnesses, the jury could conclude that, particularly by the second emergency room visit, the Hospital released Gray even though the doctors knew his condition was not stable and was likely to deteriorate.
Therefore, the Hospital was not entitled to summary judgment or to a directed verdict. Rather, the trial court properly submitted this issue to the jury. Furthermore, we find that the jury instruction on the EMTALA claim was substantially correct and not materially misleading. As previously noted, the EMTALA instruction stated that "[i]t was the duty of [the Hospital], if it determined that . . . Gray had an emergency medical condition when he came to the emergency department on April 8, 1999 and/or April 9, 1999, to provide for such further medical examination and such treatment as may be required to stabilize the medical condition." (Emphasis added). The instruction implicitly required the jury to find that the Hospital's physicians had knowledge of Gray's emergency medical condition, as required by EMTALA.
II. NEGLIGENCE CLAIM
We also find that the trial court properly submitted the Estate's medical negligence claim to the jury. The Hospital contends that the Estate failed to present evidence showing that any negligence by the Hospital was a substantial factor in causing Gray's injuries Baylis v. Lourdes Hospital, Inc., 805 S.W.2d 122, 124 (Ky. 1991). However, the Estate presented such evidence through the testimony of its nursing expert, Janice Rodgers, and its medical expert, Dr. Eric Munoz. Furthermore, while evidence of causation must be in terms of probability rather than mere possibility, the focus of the inquiry should be on the substance of the expert testimony rather than its particular form. Baylis, 805 S.W.2d at 124. Under the circumstances, we conclude that the Estate presented sufficient evidence to submit the issue of causation to the jury.
III. FRATZKE ISSUE
The Hospital also argues that the trial court erred by denying its motion in limine to preclude any award of unliquidated damages. On October 3, 2005, prior to the first trial in this matter, the Hospital moved to preclude any award of unliquidated damages because the Estate had not identified the amount of unliquidated damages which it was seeking. The Estate attempted to serve supplemental discovery responses on October 1, 2005. However, the trial court found that the supplementation was not seasonable. However, that trial ended in a mistrial and the trial court allowed the Estate to present evidence of unliquidated damages at the second trial in November of 2005. Kentucky Rules of Civil Procedure (CR) 8.01(2) authorizes the use of an interrogatory to obtain disclosure of the amount of unliquidated damages being sought. If a plaintiff fails to disclose this amount in the interrogatory and further fails to seasonably supplement its response and provide the information, then the plaintiff will be precluded from recovering such damages. Fratzke v. Murphy, 12 S.W.3d 269, 272-73 (Ky. 1999). See also LaFleur v. Shoney's Inc., 83 S.W.3d 474, 480-81 (Ky. 2002). CR 8.01(2) is mandatory and gives the trial court no discretion as to the application of this remedy. Fratzke, 12 S.W.3d at 273. Thus, the Hospital maintains that the trial court was required to bar the Estate from presenting evidence of unliquidated damages once it had found that the Estate had failed to seasonably identify its claim for such damages in its discovery responses.
However, we conclude that this rule was not applicable under the specific circumstances of this case. While the Estate failed to specify the amount of its claim for unliquidated damages prior to the first trial, that trial ended in a mistrial. Thus, even if the court erred by allowing the claim for unliquidated damages at the first trial, the Hospital was not prejudiced by this ruling. Moreover, Fratzke does not preclude a trial court from entertaining a motion to supplement discovery responses even after a trial has commenced. Fratzke, 12 S.W.3d at 272. Although the Estate's supplemental discovery response on September 30, 2005, may not have been timely with respect to the first trial, the trial court could reasonably find that it was seasonable with respect to the second trial. Therefore, the trial court did not err by allowing the Estate's claim for unliquidated damages.
IV. NEW TRIAL BASED ON TRIAL ISSUES
The Hospital next raises a series of issues involving the conduct of the trial in this case. The Hospital contends that it is entitled to a new trial based upon these errors. CR 59.01 sets out the grounds upon which a court may grant a new trial as follows:
(a) Irregularity in the proceedings of the court, jury or prevailing party, or an order of the court, or abuse of discretion, by which the party was prevented from having a fair trial.
(b) Misconduct of the jury, of the prevailing party, or of his attorney.
(c) Accident or surprise which ordinary prudence could not have guarded against.
(d) Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice or in disregard of the evidence or the instructions of the court.
(e) Error in the assessment of the amount of recovery whether too large or too small.
(f) That the verdict is not sustained by sufficient evidence, or is contrary to law.
(g) Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.
(h) Errors of law occurring at the trial and objected to by the party under the provisions of these rules.
As an appellate Court, we review the circuit court's ruling on a motion for a new trial motion for an abuse of discretion and will reverse only if there is clear error. Miller v. Swift, 42 S.W.3d 599, 601 (Ky. 2001). The trial court's decision is presumed correct and will not be reversed absent clear error. Shortridge v. Rice, 929 S.W.2d 194, 196 (Ky.App. 1996). This rule recognizes that a decision on a motion for a new trial depends, to some extent, upon factors and impressions not included in the appellate record. Id. A trial court has broad discretion in ruling upon a motion for a new trial and we will not disturb such ruling absent an abuse of that discretion. Lewis v. Grange Mutual Casualty Co., 11 S.W.3d 591 (Ky.App. 2000). An abuse of discretion occurs when a "trial judge's decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). "The discretion of the trial judge, who participates in the conduct of the trial, in refusing or granting a new trial will be interfered with only in exceptional cases." Wilkins v. Hopkins, 278 Ky. 280, 128 S.W.2d 772, 774 (1939). While we are concerned by the circumstances surrounding some of these issues, we cannot find overall that any or all of them deprived the Hospital of a fair trial nor does the Hospital show how it was prejudiced by any of these claimed errors. Consequently, the trial court did not abuse its discretion by denying the Hospital's motion for a new trial on these grounds.
A. Denial of Motion to Strike Jurors for Cause
First, the Hospital argues that the trial court improperly failed to strike two jurors for cause. The Hospital maintains that the trial court improperly considered the fact that both of the jurors were African-American in denying the motions to strike. We find no error or abuse of discretion.
It is well-established that parties may not use peremptory challenges to exclude jurors based upon race. See Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S. Ct. 1712, 1722-24, 90 L. Ed. 2d 69 (1986). Although Batson was a criminal case, the rule applies equally to civil litigation. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991). See also Washington v. Goodman, 830 S.W.2d 398, 400-02 (Ky.App. 1992). While the trial court in this case noted the race of Juror 588, the court expressly stated that race did not play a role in its decision to deny the Hospital's motion to strike Juror 588. We find no reason not to take the trial court at its word, and there is no indication in the record that the trial court considered the race of Juror 675 in denying the Hospital's motion.
Moreover, the Hospital's grounds for seeking to strike Jurors 588 and 675 had nothing to do with their abilities to render a fair and impartial verdict. During voir dire, Juror 588 informed the court that he had a medical condition which required him to take certain medications, and after taking these medications, he was prone to falling asleep. The trial court denied the Hospital's motion to strike Juror 588 for cause, but asked the juror to inform the court if he was having difficulty staying awake during the trial. Juror 588 served on the jury in this case and there is no allegation that he was unable to stay awake during the trial. Separately, the Hospital moved to strike Juror 675, who had advised the court that she could not serve as a juror because her employer would not give her the time off. Nevertheless, the trial court denied the Hospital's motion to strike and it subsequently used a peremptory challenge to remove Juror 675 from the panel.
A decision whether to exclude a juror for cause lies within the sound discretion of the trial court, and unless the action of the trial court is an abuse of discretion or is clearly erroneous, an appellate court will not reverse the trial court's determination. Pendleton v. Commonwealth, 83 S.W.3d 522, 527 (Ky. 2002). Here, the trial court was satisfied by Juror 588's statement that he would inform the court if he had any difficulty staying awake. Under these circumstances, the court's decision to deny the Hospital's motion to strike was reasonable. As for Juror 675, the trial court had previously excused several jurors for employment-related reasons. However, the trial court stated that it could not continue to allow potential jurors to request dismissal for work. Furthermore, the court was not convinced that Juror 675 had shown that jury service would cause her true hardship or that her position at work was indispensible. Consequently, the trial court's decision to deny the Hospital's motion to strike was well within its discretion.
B. Exclusion of Deposition Testimony Based upon Misrepresentation by Counsel
Second, the Hospital argues that it was entitled to a new trial due to misrepresentations by the Estate's counsel which prevented it from introducing evidence to the jury. Prior to trial, the Estate's counsel informed the court that its settlement with the physicians contained a term which prevented their experts from testifying for the Hospital. Based on this representation, the trial court did not allow the Hospital to introduce the deposition testimony of Dr. Dean Hawley, an expert previously retained by Dr. Richardson, Dr. Parsley, and physician's assistant Adkins. Following the trial, however, the court reviewed the settlement agreement and found no such provision.
The Hospital characterizes this misrepresentation as a fraud upon the court compelling a new trial. The Estate concedes that its counsel erroneously informed the court about the provision. However, the Estate contends that its counsel merely made an innocent mistake about the terms of a settlement which had not been finally drafted. The trial court made no finding whether the Estate's misrepresentations about the terms of the settlement agreement were intentional. Nevertheless, it is clear from the record that the trial court relied on those representations when it prohibited the Hospital from introducing portions of Dr. Hawley's deposition. To this extent, the trial court's decision to exclude the deposition was error as it was based on erroneous information.
The Estate further argues that the Hospital is not entitled to a new trial on this ground because the exclusion of Dr. Hawley's deposition did not affect the outcome of the case. In response, the Hospital argues that it is not required to show that the excluded evidence affected the outcome of the case. Rather, the Hospital contends that it was only required to show that either it or the court was actually misled by the misrepresentation, with a resultant advantage to one party and an apparent injustice to the other. Hunter v. Hunt, 296 Ky. 769, 774, 178 S.W.2d 609, 612 (1944).
While the Hospital has clearly shown that it and the court were actually misled by the misrepresentation, it must also show that the Estate gained an unfair advantage and that the Hospital's defense of the case was prejudiced. Here, the Hospital does not identify any particular evidence in Dr. Hawley's deposition which it was unfairly prevented from presenting to the jury. Dr. Hawley, a pathologist, testified regarding the cause of Gray's death. For the most part, he agreed with the coroner that Gray's death was caused by the rupture of a duodenal ulcer. He also opined that Gray's past history of drug and alcohol abuse contributed to that condition. This latter evidence came in through the testimony of the coroner and through other evidence, including the lab reports introduced by the Hospital showing that Gray had drugs in his system. We do not excuse the Estate's misrepresentation, whether intentional or inadvertent, about the terms of the settlement agreement. But in the absence of any showing of material prejudice, we cannot say that the trial court abused its discretion by denying the Hospital's motion for a new trial on this basis.
C. Admission of Improper Evidence
Third, the Hospital argues that the verdict was tainted by the introduction of improper evidence and improper argument by the Estate's counsel. Specifically, the Hospital contends that Dr. Munoz's testimony amounted to perjury; that Dr. Frank Baker, who testified regarding the care provided by the Hospital's nurses, made inflammatory comments which were not supported by the evidence; that the Estate's counsel made repeated reference to matters which were not in evidence; and that the Estate's counsel made improper appeals to jury sympathy. We shall address each in turn.
1. Dr. Munoz's testimony
The Hospital contends that the jury verdict was procured through perjured testimony by the Estate's expert witness, Dr. Munoz. The Hospital points to inconsistencies between Dr. Munoz's deposition testimony and his trial testimony. However, the Hospital cross-examined Dr. Munoz about these inconsistencies, and he explained that his prior responses were due to ambiguous questions at the deposition and that his prior statements had been taken out of context. We find no basis to support the Hospital's assertion that these inconsistencies amount to perjury on the part of Dr. Munoz. Moreover, since the Hospital raised these inconsistencies at trial, the jury had full opportunity to weigh Dr. Munoz's credibility for itself.
2. Comments by Dr. Baker
The Hospital next argues that Dr. Baker made inflammatory and unsupported statements about the care provided by the Hospital's nurses. At the first trial, the court excluded Dr. Baker's testimony because the Estate had not designated him as an expert with regard to nursing care. The court also noted that Dr. Baker specifically stated at his first deposition that he did not intend to criticize the nursing care because he had not read the nurses' depositions. At the second trial, the Hospital sought to introduce portions of Dr. Baker's first deposition. The Estate cross-designated other portions of his deposition, including a statement characterizing the nursing care provided to Gray by the Hospital:
Flagrant violations of the standard of care, particularly egregious, outrageous, not easily explainable. They are just so out of keeping with what nurses are taught about caring for patients. It is just a bit mind-boggling to figure out why and how it happened.
Deposition of Dr. Frank Baker, February 27, 2002, p. 168.
The Hospital maintains that the trial court erred by allowing introduction of these statements because the Estate still had not designated Dr. Baker as an expert witness with regard to nursing care. As a result, the Hospital contends that his testimony was improper and unfairly inflammatory. The trial court held that the Estate could introduce its designated portions of Dr. Baker's deposition to the extent that it was addressed in Dr. Baker's second deposition made after he had reviewed the nurses' depositions. While Dr. Baker's comments are undoubtedly strong, we cannot find that the Hospital was surprised by his testimony or unfairly deprived of an opportunity to rebut his opinions. Therefore, the trial court did not abuse its discretion by allowing his deposition testimony to be read for the jury.
3. References to Pam Blackwell note
The Hospital further argues that the Estate's counsel improperly referred to matters not in evidence. Prior to Gray's second discharge on April 9, 1999, a hospital social worker, Pam Blackwell (Blackwell), wrote a note on Gray's chart suggesting that the police be called if Gray continued to return. The trial court held that the note was admissible to the extent it was part of the Hospital's records, but the Estate could not assert any negligence claim against Blackwell.
Blackwell did not testify at trial, but members of Gray's family testified that they had been informed about Blackwell's recommendation, and that Gray was afraid to return to the Hospital because he thought he might be arrested. The Estate's counsel also referred to Blackwell's note in closing argument. The Hospital argues that Blackwell's note was not relevant to the issues presented in this case and that the Estate used this evidence to inflame the jury. While the evidence was not admissible to prove Blackwell's negligence, it was relevant to reflect on the conduct of the Hospital's agents and to explain Gray's actions after he was discharged. Furthermore, we cannot say that the trial court abused its discretion in finding that the probative value of this evidence outweighed its prejudicial effect. Kentucky Rules of Evidence (KRE) 403.
4. Reference to matters not in evidence
During voir dire, the Estate's counsel asked prospective jurors if they would be able to use their own knowledge, life experiences, and values in their deliberation process. The Hospital objected, arguing that this question encouraged the jurors to rely on matters and standards outside the record and instructions. The trial court overruled the objection, noting that the jurors would be qualified based upon their abilities to render a verdict based upon the evidence presented at trial and the instructions provided by the court. While an admonishment explaining this to the jury certainly would have been in order, we cannot say that this single statement by counsel during voir dire rendered the entire trial fundamentally unfair.
The Hospital also argues that the Estate's counsel made several references to Gray's past and his relationships with family members which were not supported by any subsequent testimony. Specifically, counsel told the jury Gray had been shot when he was a teenager and had been paralyzed ever since. Counsel also stated that Gray's family had been taking care of him since that time. The Hospital argues that counsel made these statements to evoke sympathy for Gray. Further, the Hospital contends that these statements were not supported by any testimony. The Hospital also asserts that the Estate's counsel represented that certain witnesses would testify at trial, but that these witnesses were never called.
However, we find no indication that the Hospital raised these objections until its post-trial motion for a new trial. Where a party seeks to object to a reference to improper evidence offered in opening statements, it must raise this objection and request a remedy prior to the discharge of the jury. An objection raised for the first time in a motion for a new trial is not timely. See Senibaldi v. Commonwealth, 338 S.W.2d 915, 919-20 (Ky. 1960).
5. Conduct of Trial
The Hospital raises several unpreserved issues regarding the trial court's conduct of the trial. First, the Hospital argues that it was denied an opportunity to cross-examine and impeach several fact witnesses offered by the Estate. However, it provides no citations to the record as to where this issue was preserved for review. CR 76.12(4)(c)(v). Consequently, we are not obliged to scour the record on appeal to ensure that an issue has been preserved. See Phelps v. Louisville Water Co., 103 S.W.3d 46, 53 (Ky. 2003).
Likewise, the Hospital does not identify how it objected to the trial court's scheduling decisions around Thanksgiving 2005. Upon realizing that the trial would continue into Thanksgiving week, the court gave the parties the option of taking off only on Thanksgiving Day and resuming the trial on the Friday and Saturday after Thanksgiving, or taking over a full week off and resuming the trial on December 5. While the Hospital contends that it would have been prejudiced by either option, it apparently agreed to complete its case prior to Thanksgiving. Furthermore, the Hospital did not suggest any other appropriate solution. Given the absence of any showing that the Hospital made a timely objection, the trial court's scheduling decisions during the trial were well within its discretion. Disabled American Veterans, Dept. of Kentucky, Inc. v. Crabb, 182 S.W.3d 541, 550-51 (Ky.App. 2005), citing Robert G. Lawson, The Kentucky Evidence Law Handbook, § 3.20[2], 238 (4th ed. 2003).
6. Juror confusion
In its final argument concerning issues presented at trial, the Hospital notes that the jury sent out three questions regarding the EMTALA instructions during its deliberations. First, the jury asked the court to explain if Instruction #8 pertained to the EMTALA claim. Second, the jury asked if the doctors and nurses are included under the EMTALA claim. And third, the jury asked if Instruction #2, which addressed the Hospital's duty of care, included its duties under EMTALA. After consulting with the parties, the trial court informed the jury that the answer to the first question was "yes"; the answer to the second question was that "doctors and nurses are included to the extent that they are agents or servants of the Hospital"; and the answer to the third question was "no, only negligence." Thereafter, the jury sent out an additional question asking whether the doctors' conduct should be considered when assessing punitive damages. The court answered this question "yes." The Hospital contends that these questions demonstrate the jury was confused by the EMTALA and punitive damages instructions.
The Hospital also points to inconsistencies in the jury's verdicts as demonstrating this confusion. Nine jurors found the Hospital to be negligent, but ten jurors found the Hospital liable under the EMTALA claim. Likewise, ten jurors found the Hospital to be 15% at fault and assessed punitive damages, while only nine found the Hospital negligent. The Hospital also notes that, during the polling of the jury, one juror was unsure of how he had voted on several of the verdicts awarded. Based on these questions, the Hospital asserts that "[t]he only conclusion that can be drawn from these anomalies is that the jury was so befuddled with confusion that the verdict cannot be the product of objective reason and reflection, but rather uncertainty and misunderstanding as to the issues presented at trial."
Where the instructions are erroneous or substantially misleading, reversal is required upon a showing that there is a substantial likelihood the jury was confused or misled by the instructions. City of Middlesboro v. Brown, 63 S.W.3d 179, 182 (Ky. 2001). However, we have already found that the instructions relating to the negligence and the EMTALA claims were substantially correct. We shall address the issues relating to the punitive damages instructions separately. In any event, the trial court answered the jury's questions about the distinctions between the negligence and EMTALA claims. The Hospital does not directly argue that any of the court's answers were incorrect, and the jury did not indicate that it had any further difficulty reaching a verdict on these claims. Nor does the confusion shown by a single juror during polling demonstrate any significant irregularity with the deliberation process. Finally, no juror disavowed any verdict after being given the opportunity to reflect. Consequently, the Hospital has not shown any substantial likelihood that the jury was confused or misled by the instructions.
Furthermore, the jury verdicts were not inconsistent. The fact that only nine jurors found the Hospital to be negligent, but ten agreed with the verdict apportioning fault and assessing punitive damages, is irrelevant. Each special interrogatory to the jury should be treated as a separate verdict which may be reached by any nine or more members of the panel. Young v. J. B. Hunt Transportation, Inc., 781 S.W.2d 503, 505-06 (Ky. 1989). See also Martin v. Mekanhart Corp., 113 S.W.3d 95, 99 (Ky. 2003). Therefore, the trial court did not abuse its discretion by denying the Hospital's motion for a new trial on this basis.
E. Trial Court's Order Sealing Settlement Agreement
After the second trial in this case, the Hospital filed a motion to compel production of the Estate's settlement agreement with the physicians. After the Estate objected on the grounds that the terms of the settlement were confidential, the Hospital moved for an in camera review of the agreement to determine whether the agreement contained any terms restricting the evidence which could be presented at trial, terms precluding the Hospital from presenting the testimony of the settling defendant's experts, or any terms agreeing to indemnify the settling defendants from future claims. After conducting the in camera review, the trial court found that the settlement agreement does not contain any of the objectionable terms identified by the Hospital.
The Hospital now argues that it is entitled to review the settlement agreement for any other provisions which might be improper. However, the Hospital did not object to the court's order sealing the settlement agreement, nor did it request more specific findings addressing any allegedly improper provisions in the agreement. CR 52.04. Consequently, this issue is not preserved for review.
V. PUNITIVE DAMAGES
Both parties raise issues with respect to the Estate's claim for punitive damages. The trial court set aside the jury's verdict for punitive damages, finding that it was clearly excessive. The Hospital argues that the issue of punitive damages should not have been submitted to the jury, or in the alternative, that the jury instructions regarding punitive damages were inadequate. The Estate responds that the issue was properly submitted to the jury, and the Estate further contends that the award of punitive damages was not excessive and therefore the Hospital was not entitled to a new trial on this issue.
A. Instructions on Ratification and Standard of Proof
In its cross-appeal, the Hospital argues that punitive damages could not be assessed against it without a showing that it ratified the grossly negligent conduct of its employees. The Hospital argues that there was no evidence showing that it had ratified the conduct of the physicians and Hospital staff, and therefore it was entitled to a directed verdict on the Estate's claim for punitive damages.
Kentucky Revised Statutes (KRS) 411.184(3) limits vicarious liability for punitive damages to instances where the employer authorized, ratified, or should have anticipated the bad conduct of its employee. We disagree with the Estate that the statute does not apply because EMTALA imposes direct liability on the Hospital for the acts of its agents. While EMTALA is a federally-created action, it incorporates substantive state law in determination of damages. Smith v. Botsford General Hospital, 419 F.3d 513, 517 (6th Cir. 2005). Furthermore, in Berrier v. Bizer, 57 S.W.3d 271 (Ky. 2001), the Kentucky Supreme Court held that KRS 411.184(3) applies where a plaintiff seeks punitive damages for employment discrimination premised upon the acts of supervisory employees. Berrier, 57 S.W.3d at 283-84.
In Berrier, the Supreme Court affirmed a dismissal of the plaintiff's claim for punitive damages because the only remaining claim against the employer involved allegations of misconduct on the part of employees and there was no evidence that the employer authorized or ratified the alleged misconduct or should have anticipated the conduct in question. Berrier, 57 S.W.3d at 284. Here, the Hospital has internal policies and procedures to ensure that physicians and staff complied with the duties imposed by EMTALA. Given the evidence, we agree with the trial court that the ratification was an issue of fact for the jury to decide.
In the alternative, the Hospital contends that it was entitled to a jury instruction on ratification as a prerequisite to an award of punitive damages. We agree. Not only did the court fail to provide such an instruction, its answer to the jury's question implied that it could impose punitive damages on the Hospital for the acts of its agents without a finding that it ratified or had reason to know of their conduct. We also agree with the Hospital that the trial court erred in failing to instruct the jury that the Estate must prove its right to punitive damages by clear and convincing evidence. Upon retrial the Hospital will be entitled to the instructions setting out the standard of proof. Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153, 166-67 (Ky. 2004).
B. New Trial on Punitive Damages
In granting the Hospital's motion for a new trial, the trial court found that the ratio of the award of punitive damages to actual damages "is far in excess of the level to be sanctioned by the appellate courts." In its direct appeal, the Estate argues that the punitive damages award was not constitutionally excessive and, therefore, a new trial was not necessary. Since we have found that the punitive damages instruction was inadequate, a new trial would be necessary in any event. However, we will also address the trial court's decision finding that the award of punitive damages was excessive.
In State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408, 425, 123 S. Ct. 1513, 1524, 155 L. Ed. 2d 585 (2003), the United States Supreme Court suggested that "few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process." In this case, the jury's award of punitive damages is 60 times the total amount of compensatory damages awarded to the Estate and 400 times the amount of compensatory damages apportioned against the Hospital. Based on this obvious disparity, the trial court concluded that the award of punitive damages was clearly excessive.
However, the Court in Campbell rejected a bright-line ratio or mathematical formula to determine the reasonableness of a punitive damages award. Campbell, 538 U.S. at 424-25, 123 S. Ct. at 1524. Rather, the Court specified that in order to satisfy due process, punitive damage awards must be evaluated under three factors: "1) the degree of reprehensibility of the defendant's conduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases." Campbell, 538 U.S. at 418, 123 S. Ct. at 1520. See also BMW of North America v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996). Appellate courts must review a trial court's application of these factors on a de novo basis. Campbell, 538 U.S. at 418, 123 S. Ct. at 1520.
Of the three factors, "the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct." Campbell, 538 U.S. at 419, 123 S. Ct. at 1521, quoting Gore, 517 U.S. at 575, 116 S. Ct. at 1599. Campbell instructs courts
to determine the reprehensibility of a defendant by considering whether: the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.
Campbell, 538 U.S. at 419, 123 S. Ct. at 1521, citing Gore, 517 U.S. at 576-77, 116 S. Ct. at 1599-1600.
As previously noted, the purpose of the EMTALA is to protect indigent and uninsured patients from being refused emergency medical treatment. Gray was a member of the vulnerable class which the Act seeks to protect. Furthermore, the harm caused to Gray was not economic. The evidence showed that he suffered extensive pain and ultimately died as a result of the Hospital's actions. The jury could reasonably find that the Hospital's conduct evidenced a reckless disregard for the health and safety of others. On the other hand, the Hospital's conduct over April 8-9, 1999, involved a discrete time period and there is no evidence it engaged in an ongoing course of conduct. While the Hospital's actions may have amounted to a deliberate indifference to Gray's rights, there is no showing that it was inspired by intentional malice or trickery. We also note that the jury apportioned 25% of the fault to Gray himself, thus diminishing the Hospital's overall responsibility for the injury. Under these circumstances, an award of punitive damages may have been appropriate, but the amount awarded in this case appears excessive.
The excessiveness of the award becomes more apparent upon turning to the second factor: the difference between the award of compensatory damages and punitive damages. Admittedly, a higher ratio may be constitutionally appropriate in cases involving a particularly egregious act which resulted in only a small amount of economic damages. Campbell, 538 U.S. at 425, 123 S. Ct. at 1524.
While the amount of compensatory damages awarded in this case was comparatively small, it was more than a nominal amount. Consequently, the wide disparity between the awards of compensatory and punitive damages is a much more significant issue. Given the enormous disparity between the compensatory and punitive damages awards, we must conclude that the award of punitive damages was clearly excessive.
Our conclusion in this regard is further bolstered by the third factor under Campbell: a comparison of the punitive damages award with the civil penalties authorized or imposed in comparable cases. As the Estate notes, EMTALA provides for a civil penalty of up to $50,000.00 for each violation. 42 U.S.C. § 1395dd(d)(1)(A). Even assuming that the Hospital's two discharges of Gray amounted to separate violations of EMTALA, the total punitive damages award is 15 times the maximum civil penalty of $100,000.00. This disparity might have been less significant if the award of compensatory damages were greater. See Steel Technologies v. Congleton, 234 S.W.3d 920, 927 (Ky. 2007). But when considered with the other Campbell factors, the punitive damages award cannot be upheld. Therefore, the trial court properly set aside the award and ordered a new trial.
The trial court expressed some frustration at the lack of a clear standard to determine an appropriate punitive damages award, and expressed the desire that the appellate courts provide some guidance on this issue. Since the trial court ordered a new trial on the issue of punitive damages, we are not at liberty to offer an advisory opinion on what amount of punitive damages would be constitutionally appropriate in this case. On remand, the trial court is not entirely without some guidance on this issue.
At the conclusion of the second trial, the jury was instructed under KRS 411.184 on most of the elements which it must find to award punitive damages. (We have separately found that the Hospital was entitled to an additional instruction on ratification.) However, the court did not instruct the jury on the guidelines to determine the amount of punitive damages. In Campbell and other cases, the United States Supreme Court has recognized that a punitive damages award based upon inadequate instructions may violate a party's due process rights. The jury in the present case was not instructed as to any factors to consider in calculating the amount of damages. In the absence of any directive from the trial court to consider the culpability of the Hospital's conduct, the jury had no basis to calculate the amount of punitive damages. As a result, the punitive damages award was clearly arbitrary and excessive.
KRS 411.186(2) sets out the standards which a jury should consider in determining the amount of punitive damages. Pursuant to the statute, the jury is to consider the following factors:
(a) The likelihood at the relevant time that serious harm would arise from the defendant's misconduct;
(b) The degree of the defendant's awareness of that likelihood;
(c) The profitability of the misconduct to the defendant;
(d) The duration of the misconduct and any concealment of it by the defendant; and
(e) Any actions by the defendant to remedy the misconduct once it became known to the defendant.
On remand, the Hospital may be entitled to a separate instruction setting out any of these factors which are applicable to this case. As thus instructed, both the jury and the trial court will have an adequate framework in which to assess the appropriate amount of punitive damages.
CONCLUSION
Accordingly, the judgment of the Fayette Circuit Court is affirmed in all respects except for the award of punitive damages. While we also affirm the trial court's order granting a new trial on the issue of punitive damages, we also find that the Hospital was entitled to instructions properly setting out the law as to ratification and the standard of proof. Therefore, we remand this matter for a new trial in accord with this opinion.
CLAYTON, JUDGE, CONCURS.
DIXON, JUDGE, CONCURS IN RESULT ONLY.