The Commonwealth of Kentucky Court of Appeals (“Kentucky Appellate Court”) held in its opinion filed on January 5, 2018 that the trial judge had abused his discretion in dealing with the defense’s late production of relevant medical records and in denying the plaintiff’s motion for continuance under the circumstances.
The Kentucky medical malpractice plaintiff had hip replacement surgery performed by the defendant surgeon in October 2007. When the plaintiff awoke from surgery, her left leg was paralyzed due to sciatic nerve palsy, which is a rare complication of total hip replacement surgery. She alleged that her nerve palsy was the result of a second procedure she did not consent to that was done to correct a perceived leg length discrepancy. She further alleged that she sustained the injury when her leg was dropped in preparation for the second procedure when the candy cane device used to stabilize her leg was improperly attached to the table and fell, pulling her leg with it.
The Defendant Surgeon’s July 1, 2008 Office Note
Before filing her Kentucky medical malpractice lawsuit, the plaintiff requested a copy of her entire medical records from the hospital where she had her surgery and from the defendant surgeon’s medical practice. None of the records produced contained any indication of the leg drop or any indication of the candy cane incident in which the plaintiff’s leg was dropped.
The plaintiff had worked for over thirty years as a nurse at the hospital where she had her surgery. She heard a rumor at the hospital from a physician assistant who had been in the operating room that her leg was dropped during surgery when the candy cane device became detached from the table.
During an office visit with the defendant surgeon on July 1, 2008, she asked him if her leg had been dropped during surgery but she received no direct answer from him and he seemed to disregard her question as insignificant.
In March 2010, nine months before she filed her Kentucky medical malpractice lawsuit, the plaintiff again requested all of her medical records from the surgeon’s medical practice but the records provided to her did not include the surgeon’s office note from July 1, 2008.
The July 1, 2008 office note was inadvertently provided to her medical malpractice lawyer in January 2016, only three weeks before the trial, in response to his request for patient accounts pertaining to billing and insurance. The July 1, 2008 office note confirmed for the first time the rumor that the plaintiff had heard regarding her leg being dropped in preparation for the second procedure.
The defendant surgeon’s July 1, 2008 office note stated: “[w]e discussed this at some length. I told her that I thought about all that has happened. The only thing I can think of that may account for this would be that during the course of the procedure her leg did twist and fall while we were positioning her.”
On February 5, 2016, the plaintiff’s medical expert testified by video in which he used the fact of the drop as an additional fact supporting his opinion that the injury to the plaintiff’s leg occurred after completion of the first stage of surgery.
On the morning of the first day of the Kentucky medical malpractice trial, the defense moved to strike the plaintiff’s expert’s testimony regarding the leg drop incident and to preclude cross-examination of the defendant surgeon with regard to his July 1, 2008 office note. The trial court granted the defense motions on the basis that it was too late to be introducing this evidence, ruling that all evidence pertaining to the leg drop incident should be excluded. The plaintiff’s medical malpractice attorney moved for a continuance of trial, which the trial court denied.
The Kentucky medical malpractice trial went forward without any mention of the leg dropping incident, including exclusion of the defendant surgeon’s July 1, 2008 office note. The jury returned a defense verdict and the trial court denied the plaintiff’s motion for a new trial. The plaintiff appealed.
The Kentucky Appellate Court agreed with the plaintiff that the trial court abused its discretion when it granted the defense pre-trial motions to exclude any evidence of the leg drop and when it denied her motion for a continuance. The Kentucky Appellate Court also held that the trial court clearly erred by prohibiting the plaintiff from cross-examining the defendant surgeon with his own July 1, 2008 office note, which would be admissible as his own statement. The Kentucky Appellate Court stated that the trial court failed to recognize that the defense had knowledge of the leg drop and the July 1, 2008 office note “all along.”
With regard to the sufficiency of the plaintiff’s expert’s opinion, the Kentucky Appellate Court stated that the expert testified that in his opinion there was a breach in the standard of care by doing the second procedure to correct an alleged leg length discrepancy, and it was also a breach to have the brace unsecured. He further stated that this second procedure, paired with the leg drop, resulted in the plaintiff’s leg “more likely than not” being paralyzed in the second procedure (or in preparation for the second procedure when her leg dropped).
Both parties agree that paralysis of a sciatic nerve is not something that can necessarily be pinpointed to an exact moment in surgery, and it is typically after a patient wakes up that anyone is aware of the paralysis.
The Kentucky Appellate Court stated that the mere fact that no one will be able to say exactly when this injury occurred during the surgery is not sufficient to exclude the evidence. There was sufficient expert testimony presented by the plaintiff’s expert for the jury to weigh both the effect of the second surgery, and whether the leg dropping incident was another factor that contributed to or caused her injury.
The Kentucky Appellate Court held that the trial court’s finding that the testimony was not determinative enough was clearly erroneous, and the exclusion of that evidence was an abuse of discretion. Therefore, the trial court’s denial of a new trial, based on the court’s findings, amounted to an abuse of discretion.
The Kentucky Appellate court further stated “we believe [the plaintiff’s] counsel acted reasonably in attempting to obtain evidence of the ‘leg drop’ and that [the defendant’s] counsel knew of the ‘leg drop’ incident. We make clear, however, that there is no evidence indicating that defense counsel intentionally withheld the evidence from [the plaintiff].”
The Kentucky Appellate Court concluded, “We therefore reverse and remand with instructions to allow [the plaintiff] to introduce evidence of the leg drop and fully develop the issue.”
With regard to the plaintiff’s motion for the trial judge to recuse himself from presiding over the plaintiff’s medical malpractice trial, the Kentucky Appellate Court stated “the mere fact that [the defendant surgeon] had operated on the trial judge’s wife and that the trial judge had been a patient of [the defendant surgeon’s medical practice] is not sufficient to suggest that the trial court could not be impartial. Therefore, the trial court did not abuse its discretion by denying the recusal motion.”
Quattrocchi v. Nicholls, 2016-CA-000428.
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