In its December 13, 2018 opinion, the Supreme Court of Kentucky (“Kentucky Supreme Court”) reinstated a medical malpractice verdict in favor of a hospital after discussing the effect of an empty-chair defendant (i.e., where a defendant physician who settled before trial was not present during trial).
The Underlying Facts
A woman (“decedent”) was treated and released at the defendant hospital on November 28, 2011, despite still being tachycardic. Later that evening, she was taken by ambulance to another hospital where she died several hours later from cardiac arrest secondary to a staph aureus infection in her blood. It was later determined that the decedent had been treated several weeks prior for a boil that was surgically lanced, which was the probable cause of the sepsis that led to her death.
The defendant treating physician testified during his deposition that there were several factors he felt contributed to the decedent’s increased heart rate: 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 she was given in the hospital; and, the decedent’s heart rate at a recent visit to the ER was also above 100, so her baseline may be higher than normal.
The treating physician settled the Kansas medical malpractice wrongful death claims against him before trial but his video deposition was played for the jury and he was still included as a party to the proceedings for apportionment purposes under Kentucky Revised Statute (“KRS”) 411.182.
At the close of the plaintiff’s case (not at the end of the trial), the defendant hospital moved for directed verdict on standard of care as to the defendant physician, which the trial judge granted. The Kansas medical malpractice jury was instructed that the defendant physician had fallen below the standard of care, and the jury thereafter returned a verdict in favor of the defendant hospital. The plaintiff appealed.
The lower appellate court held that not only was the trial court’s grant of directed verdict in error, but also that a trial court cannot grant a directed verdict of negligence against an empty-chair defendant.
The Kansas Supreme Court stated “[t]he court’s so-called directed verdict at the close of plaintiffs case was more similar, in practice, to a partial summary judgment as to the issue of [the defendant physician’s] breach of duty … CR 50.01 states that the motion for directed verdict is “at the close of the evidence offered by an opponent.” The only common-sense understanding of this rule is that the opponent to the motion is the same “opponent” that must have closed its offer of evidence. Thus, in theory, a co-defendant may move for directed verdict against another co-defendant but only after that co-defendant has presented its proof or declined to present any proof … Thus, before directing a verdict, it is practical to allow all the potential proof against the party making the motion to be entered and considered by the trial court.”
The Kansas Supreme Court noted that the defendant physician was not in court at trial and therefore he had no opportunity to present proof and any such directed verdict must wait until after such opportunity has been provided (nonetheless, he was not going to present any proof in response to the plaintiff’s case). The question then becomes whether this procedural oddity—a present defendant seeking a directed verdict against an empty-chair defendant—is also so intertwined with the apportionment of fault issue so as to require to treat the empty-chair defendant the same as the present defendant.
The Kansas Supreme Court concluded that the defendant hospital’s motion for directed verdict against the defendant physician clearly implicates apportionment of fault because its entire motivation in showing that the defendant physician had, in fact, breached his standard of care was to minimize or eliminate its own liability for the decedent’s death. As such, the apportionment of fault becomes an issue and the motion must be treated as though the defendant physician was present at trial, just as any other participating defendant.
The Kansas Supreme Court stated that if the defendant hospital had moved for directed verdict at the close of the plaintiff’s evidence, and the defendant physician had been present, the trial court’s grant would clearly be in error: the defendant physician had no opportunity to present evidence, and the court should have permitted each co-defendant to present its case before entertaining any directed verdict motions against any of those parties. Therefore, the trial court granting this procedurally defunct directed verdict was clearly in error, and instructing the jury as to the defendant physician’s duty, reflecting the erroneous directed verdict, was also in error.
Nonetheless, the Kansas Supreme Court held that the error was harmless: the plaintiff cannot claim prejudice from a statement that the defendant physician had some fault in the decedent’s death when the plaintiff repeatedly made that same argument throughout trial proceedings. Furthermore, the Kansas medical malpractice jury had answered “No” to the first jury instruction, to wit: “Do you believe from the evidence that Jewish Hospital South and its employees failed to exercise the degree of care and skill ordinarily expected of reasonable and prudent hospitals under similar circumstances and that such failure on their part was a substantial factor in causing the death of Laura Alexander?” The Kansas Supreme Court stated that the jury would have understood from all of the jury instructions that finding fault as to the defendant physician did not foreclose the option of finding the defendant hospital liable.
Source Jewish Hospital v. House, 2017-SC-000440-DG.
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