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| July
28, 2003 |
Vol. 2003/22 |
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- The Kentucky Decisions
- No Ky Supremes
- 1 Published Ky Ct App
- 19 Nonpublished Ky Ct.
App.
- 1 Western District of
Kentucky
- 20 Sixth Circuit Court of
Appeals
- Change - I've decided
to print the links to all the 6th Cir. Cases published during
the week. No summaries, however.
- HIPAA
Forms available on-line at the LBA.
- Guide
to Kentucky Courts on-line at LBA.
Phone numbers, judges names and more.
- Index to past issues of Law
Wire: www.LouisvilleLaw.com/lawwire/index.htm
- "One-Minute" CLE
- In light of the medical negligence case, we did a short
cle on elements of proof in med-mal cases. Also, last
month talked about amendments to pleadings so we did a primer
on this one, too.
- Does anyone miss the
"Big List" of Kentucky Jury Verdicts and the
occasional summary of trials reported in the Kentucky Trial
Court Review? If so let me know. If I get enough
feedback (favorable), then we will start that one up
again. Your call. Email me at stevens@LouisvilleLaw.com
with your two cents worth (credit cards not accepted ;^)
- Jefferson
Family Court Forum set for September 12 @ 11:30 to 1:00
Chief Judge Kevin
L. Garvey, the Family Court Judges, and the Family Court Advisory
Committee invite all interested practitioners to attend an open
discussion of the draft Family Court Rules of Practice and Procedures.
You may obtain a copy by contacting Jim Birmingham, Family
Court Administrator at (502) 595-4392. However, I have
asked for a digital copy and will either email it to all or
post at this site if received. Warning, warning, warning
- cut-off date for comments is Sept. 15.
-
Looking
for Forms in all the Wrong Places
- The
Jefferson MCD in PDF can no longer be found at the
official site, and I did not have the smarts to save the
PDF file myself.
- Does
anybody out there have an
Excel formatted child support or MCD form which calculates
the stuff automatically (or at least one in MS Word).
- Email
them to me at stevens@louisvillelaw.com
- I will share these with y'all.
- Thanks.
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Comedy Caravan to
Benefit the Jefferson County Public Law Library
CALL THE LIBRARY @ 574-5943
Tell 'em we sent you. Sorry, no discount
-
When - Wed.,
Aug. 20 @ 7:00 pm
-
Who - Mike Armstrong
-
Who dat again - Former Louisville
policeman, now comic
-
Where - Comedy Caravan
-
How much - 15 Bucks!
-
Why - Proceeds benefit your local
law library (Jeff Cy Public Law Lib)
-
What else - Free hors d'oeuvres at
Avalon (1314 Bardstown Rd) from 6 - 7 pm.
-
What's in it for me/you?
Laughs, hang out with your own ilk, and support a good cause - your
library.
-
Really, what else? Chance to
win an HP Digital Camera donated by NetGain Technologies - gotta be
there to win! Free food but cash bar before the show.
KBA Proposed Advertising Regulations
- All comments should be sent to the KBA no later than
September 1, 2003 - the Attorneys' Advertising Commission, c/o
Bruce K. Davis, KBA Executive Director, 514 West Main Street,
Frankfort, KY 40601-1883.
- Proposed
Rule Changes - In PDF <<<--- Here's a
link to the proposed changes.
Thanks to the editors/contributors:
-
Jeri Barclay
-
Tim Hatfield
- Paul Schurman
- Mike Stevens
-
Jim Worthington
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Federal
Cases involving Kentucky - Week of July 21-25, 2003
- Western District Court - Kentucky
| Charter
Oak Fire Insurance Company, Travelers
Indemnity Company and Essex Insurance
Company v. Russ Coleman d/b/a Johnny's Bad
Ass Motorcycles, P.W.C., Inc. and Lawrence
Gray |
| |
Insurer
brought declaratory judgment action
concerning the coverage provided by
a commercial general liability
policy. Specifically, the insurer
sought a declaration that its policy
excluded all damages assessed
against its insured arising out of a
fire that damaged a building in
which the insured rented space. The
Court concluded that under the
policy the insurer was generally
liable for all damages assessed due
to fire but that the ?own, rent or
occupy? exclusion exclude coverage
for damage to the portion of the
building actually rented by the
insured. The Court also held that
the insurer could not avoid coverage
as a result of the insured?s failure
to directly notify it of the fire
and/or cooperate in the litigation
because the insurer failed to
demonstrate that the failure
materially prejudiced the insurer. |
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- Sixth Circuit Court of Appeals
| Opinion |
DocketSheet |
Pub Date |
Short Title/District |
| 03a0238p.06
| 01-6326
| 2003/07/22
| Shamaeizadeh v. Cunigan
Eastern District of
Kentucky at Lexington
|
| 03a0239p.06
| 01-5602
| 2003/07/22
| USA v. Solorio
Middle District of
Tennessee at Nashville
|
| 03a0239p.06
| 01-5666
| 2003/07/22
| USA v. Dennis
Middle District of
Tennessee at Nashville
|
| 03a0239p.06
| 01-5603
| 2003/07/22
| USA v. Luna
Middle District of
Tennessee at Nashville
|
| 03a0239p.06
| 01-5667
| 2003/07/22
| USA v. Juarez
Middle District of
Tennessee at Nashville
|
| 03a0240p.06
| 01-3851
| 2003/07/23
| Roberts v. Carter
Southern District
of Ohio at Columbus
|
| 03a0241p.06
| 01-2394
| 2003/07/23
| Kellogg Co v. Toucan Golf
Western District of
Michigan at Kalamazoo
|
| 03a0242p.06
| 01-4254
| 2003/07/23
| Husvar v. Rapoport
Southern District
of Ohio at Cincinnati
|
| 03a0243p.06
| 02-1133
| 2003/07/24
| Jurado v. Burt
Eastern District of
Michigan at Ann Arbor
|
| 03a0244p.06
| 01-6077
| 2003/07/24
| Shah v. Racetrac Petro Co
Eastern District of
Tennessee at Knoxville
|
| 03a0244p.06
| 01-6451
| 2003/07/24
| Shah v. Racetrac Petro Co
Eastern District of
Tennessee at Knoxville
|
| 03a0245p.06
| 99-2147
| 2003/07/24
| USA v. Darwich
Eastern District of
Michigan at Detroit
|
| 03a0245p.06
| 01-2044
| 2003/07/24
| USA v. Darwich
Eastern District of
Michigan at Detroit
|
| 03a0246p.06
| 01-3888
| 2003/07/24
| Goldmeier v. Allstate Ins Co
Southern District
of Ohio at Columbus
|
| 03a0247p.06
| 01-1211
| 2003/07/25
| McMullen v. Meijer Inc
Eastern District of
Michigan at Detroit
|
| 03a0248p.06
| 00-4316
| 2003/07/25
| Hall v. Consol Freightways
Northern District
of Ohio at Akron
|
| 03a0248p.06
| 00-4431
| 2003/07/25
| Hall v. Consol Freightways
Northern District
of Ohio at Akron
|
| 03a0249p.06
| 01-3414
| 2003/07/25
| Hindall v. Winterthur Intl
Northern District
of Ohio at Toledo
|
| 03a0250p.06
| 01-4178
| 2003/07/25
| Clark v. Chubb Grp Ins Co
Northern District
of Ohio at Cleveland
|
| 03a0251p.06
| 03-5149
| 2003/07/25
| USA v. Rocha
Eastern District of
Kentucky at Covington
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Cases In Context - a/k/a
"The One-Minute CLE"
Amendments to Pleadings
- Civil Rule 15.01
A party may amend his pleading once as a matter of course at
any time before a responsive pleading is served or, if the
pleading is one to which no responsive pleading is permitted and
the action has not been placed upon the trial calendar, he may so
amend it at any time within 20 days after it is served. Otherwise
a party may amend his pleading only by leave of court or by
written consent of the adverse party; and leave shall be freely
given when justice so requires. A party shall plead in response to
an amended pleading within the time remaining for response to the
original pleading or within 10 days after service of the amended
pleading, whichever period may be longer, unless the court
otherwise orders.
- Ashland Oil & Refining Co. v. Phillips, 404 S.W.2d 449 (Ky.,1966)
"Denial of motions to file amended complaints was an abuse of discretion, where there was no showing that defendant's position had been worsened by delay in offering amendments to complaint, and there was an excuse for delay in light of defendant's long delay in responding to interrogatories."
- Bradford v. Billington, 299 S.W.2d 601 (Ky.,1957)
A party may amend his pleading after motion for summary judgment has been made only by leave of court or written consent of adverse party.
- Burns v. Capitol Beverage Co., Ky., 472 S.W.2d 510 (1971)
Defendant was permitted to amend his answer to litigate his true defense where plaintiff had ample time to investigate this defense and to prepare for trial, and hence, there was no element of
surprise.
- Caldwell v. Bethlehem Mines Corp., Ky., 455 S.W.2d 67 (1970)
Employer permitted to file special answer asserting defense of statute of limitations although not filed within time required by board's rules of
procedure. "A court, under CR 15, has liberal discretion to allow amendments to pleadings, and is directed to give leave freely when justice so requires. Prior to the adoption of the Civil Rules it had been held that a defendant was entitled to amend his answer at any time before judgment to plead limitations. We would not conceive that there should be less liberality in the treatment of the rules of procedure adopted by the board for workmen's compensation cases."
- Lambert v. Franklin Real Estate Co., Ky.App., 37 S.W.3d 770, 779
(2000)
"Although leave to amend shall be freely given when justice so requires, the decision is within the discretion of the trial court. Furthermore, the discretion of the trial court will not be disturbed absent an abuse of discretion."
- Teague v. Reid, Ky., 340 S.W.2d 235 (1960)
Trial court abused its discretion by declining to allow defendants to amend their answers even though the motions to amend were not filed until the court was considering motions for summary
judgment.
Medical Negligence, Elements of
Cause of Action
- Duty and Standard of Care
- Mitchell v. Hadl, Ky., 816 S.W.2d 183
(1991)
In arena of medical negligence, physician has duty to use
that degree of care and skill which is expected of reasonably
competent practitioner in same class to which physician
belongs acting in same or similar circumstances.
- Noble v. Sartori,
Ky., 799 S.W.2d 8 (1990)
Hospital staff physician, who was not on emergency room duty
but who was only physician available who could have treated
heart attack victim, could be held liable if his actions in
refusing to render assistance to heart attack victim were a
substantial factor in causing victim's death.
- Schrand v. Grant, 1999 WestLaw 540877
(Ky. Ct. App.)
Doctors' alleged negligence in allowing patient, who was
suspected of overdosing on pain medication, to drive home,
instead of ordering her to be rushed to hospital, was not
relieved by the alleged negligent acts of either patient, who
drove her vehicle and became involved in automobile accident
injuring motorist, or nurse, who allowed patient to drive, for
purposes of negligence action brought against doctors by
motorist.
Nor could liability be escaped by lack of foreseeability
of victim from car accident.
Even intervening criminal act does not relieve one for
liability for his negligent acts or omissions, where the
criminal act is a reasonably foreseeable consequence of
defendant's negligent act.
- Hambry v. University of Kentucky Medical
Center, Ky. App., 844 S.W.2d 431 (1992)
In medical malpractice cases, expert testimony is always used
to show the standard of care for a particular type of practice
and procedure. The standard of care for physicians and
surgeons is established by the medical profession itself.
- Blair v. Eblen, Ky., 461 S.W.2d 370
(1970)
In a medical malpractice action, evidence of doctor's
adherence to proper standard of care may include elements of
locality, availability of facilities, specialization or
general practice, proximity of specialist and special
facilities.
- Davenport by and Through Davenport v.
Ephriam McDowell Memorial Hospital, Inc.,
Ky.App., 769 S.W.2d 56 (1980)
Court found use of anesthesiology standards useful as guidance
regarding standard of care.
- Comment: Use the internet to search
for published standards of care or protocols regarding
specific procedures. For example, go to www.google.com
and enter the criteria such as 'retinopathy prematurity
standards'.
- See Web Article on 'The
Legal Ramifications of NCCN Practice Guidelines' by
Frances H. Miller, Esq, Boston University School of Law
and Boston University School of Public Health.
- Morgan v. Hill, Ky. App., 663 S.W.2d
232 (1984)
A medical doctor can testify as to the cause of any injury,
just as a chiropractor may so testify, but a physician may not
testify to the chiropractor's standard of care because he does
not have the appropriate training and experience to determine
what constitutes chiropractic malpractice.
- Johnson v. Vaughn, Ky., 370 S.W.2d 591
(1963)
Negligence or wrong of physician in malpractice case must be
established by medical or expert testimony unless negligence
and injurious results are so apparent that laymen with general
knowledge would have no difficulty in recognizing it.
- Jarboe v. Harting,
Ky., 397 S.W.2d 775, 778 (1965)
In addressing the "general rule" that
"expert testimony is required in a malpractice case to
show that the defendant failed to conform to the required
standard," the Court stated - "However, it is a
generally accepted proposition that the necessary expert
testimony may consist of admissions by the defendant doctor.
[Citations omitted]. And there is an exception to the rule in
situations where the common knowledge or experience of laymen
is extensive enough to recognize or to infer negligence from
the facts." This is a case where "the
necessary expert testimony" may be found in the
"admissions by the defendant doctor."
- Breach of Duty of Care
- Rogers v. Kasdan,
Ky., 612 S.W.2d 133 (1981)
Suggested jury instruction regarding breach of duty:
"It was the duty of the defendant Humana and its
employees to exercise toward Mrs. Rogers that degree of care
and skill ordinarily expected of reasonable and prudent
hospitals under similar circumstances. If you are satisfied
from the evidence that they failed to comply with that duty
and that such failure on their part was a substantial factor
in causing the death of Mrs. Rogers, you will find for the
plaintiff against Humana; otherwise you will find for
Humana."
- Paintsville Hospital v. Rose, Ky., 683
S.W.2d 255 (1985)
A hospital could be held liable on principles of ostensible
agency or apparent authority for negligence of physician who
furnished treatment to patient in emergency room which was
provided by hospital and open to public, notwithstanding that
physician was not actually employed by hospital.
- Holton v. Pfingst, Ky. App., 534
S.W.2d 786 (1976)
Ophthalmologist was not liable for the patient's loss of the
sight of one eye which resulted from an unsuccessful, but
properly performed, surgical procedure.
- Mitchell v. Hadl, Ky., 816 S.W.2d 183
(1991)
General surgeon who informed patient's family before receiving
biopsy results that patient had carcinoma of pancreas with
metastatic disease to liver and would die within three to six
months, and who reiterated diagnosis even after receiving
negative biopsy report, did not breach duty to patient, given
that surgeon's diagnosis was based upon his examination of
patient's internal organs, surgeon was under duty to fully
disclose all reasonably held medical opinions about patient's
condition, and no evidence indicated surgeon's opinion fell
below standard of reasonable competence.
- Duetsch v. Shein, Ky., 597 S.W.2d 141
(1980)
Necessary expert testimony to establish that doctor failed to
conform to required standard of care may consist of admissions
by defendant doctor.
- Injuries and Damages
- Farmers Bank and Trust Co. of Bardstown v.
Rice, Ky., 674 S.W.2d 510 (1984).
Discusses recoverable damages in personal injury and wrongful
death actions.
- Schork v. Huber, Ky., 648 S.W.2d
861 (1983).
Held that parents could not recover damages based on costs of
raising healthy but unexpected child from doctor following an
unsuccessful sterilization procedure.
- Rice v. Rizk, Ky.App., 453
S.W.2d 732 (1970).
Death of viable fetus caused by negligence of another gives
cause of action for which damages may be awarded.
- Guiliani v. Guiler, Ky., 951 S.W.2d
318 (1997).
Held that minor children could maintain claim for loss of
parental consortium.
- 411.145 DAMAGES FOR LOSS OF CONSORTIUM
(1) As used in this section "consortium" means
the right to the services, assistance, aid, society,
companionship and conjugal relationship between husband and
wife, or wife and husband.
(2) Either a wife or husband may recover damages against a
third person for loss of consortium, resulting from a
negligent or wrongful act of such third person.
- 411.135 DAMAGES IN ACTION FOR WRONGFUL
DEATH OF MINOR
In a wrongful death action in which the decedent was a minor
child, the surviving parent, or parents, may recover for loss
of affection and companionship that would have been derived
from such child during its minority, in addition to all other
elements of the damage usually recoverable in a wrongful death
action.
- Proximate Cause (Standard of Care)
- Duetsch v. Shein, Ky., 597 S.W.2d 141
(1980).
Proximate cause consists of finding of causation in fact, i.
e., substantial cause, and absence of public policy rule of
law which prohibits imposition of liability. In
determining whether negligence was substantial factor in
causing harm, substantial factor test applies to event which
results in injury, not injury itself, and injury need only
flow directly from event.
- Morris v. Hoffman, Ky., 551 S.W.2d 8
(1997).
Ordinarily, expert evidence is necessary to support conclusion
of causation in medical malpractice actions, and medical
testimony must be that causation is probable and not merely
possible.
- Bayliss v. Lourdes Hospital, Ky., 805
S.W.2d 122 (1991).
It is an accepted principle that in most medical negligence
cases, proof of causation requires the testimony of an expert
witness because the nature of the inquiry is such that
jurors are not competent to draw their own conclusions from
the evidence without the aid of such expert testimony. Jarboe
v. Harting, Ky., 397 S.W.2d 775 (1965). While evidence of
causation must be in terms of probability rather than mere
possibility, substance should prevail over form and that
the total meaning, rather than a word-by-word construction,
should be the focus of the inquiry. Walden v. Jones,
Ky., 439 S.W.2d 571 (1968); Morris v. Hoffman,
Ky.App., 551 S.W.2d 8 (1977). The standard of "totality
of the medical testimony" was adopted for use in Workers
Compensation cases by the Court of Appeals in Stauffer
Chemical Co. v. Greenwell, Ky.App., 713 S.W.2d 825 (1986),
wherein the Court held that terms such as "distinct
possibility" and "high likelihood" went beyond
speculation and amounted to substantial evidence of causation,
an inquiry not dissimilar to the question of proximate cause
in malpractice action.
- Grayson Fraternal Order of Eagles v.
Claywell, Ky., 736 S.W.2d 328, 334 (1987).
Determination of proximate cause is a factual one, not a legal
one, depending upon whether the evidence shows that the
results of misconduct are reasonably foreseeable.
- Jarboe v. Harting, Ky., 397 S.W.2d 775
(1965).
It is an accepted principle that in most medical negligence
cases, proof of causation requires the testimony of an expert
witness because the nature of the inquiry is such that jurors
are not competent to draw their own conclusions from the
evidence without the aid of such expert testimony.
- Walden v. Jones, 439 S.W.2d 571 (Ky.,1968)
"[W]e have adhered to the rule that the causal
connection between an accident and an injury must be shown by
medical testimony and the testimony must be that the causation
is probable and not merely possible."
- Richard v. Adair Hospital Foundation Corp., 566 S.W.2d 791 (Ky.App.,1978)
Medical testimony that it could safely be said that child's chances of recovery from pneumonia would have been substantially greater and better had she been treated earlier gave rise to fact question as to whether hospital was negligent in twice refusing hospital admission to infant presented at emergency room, based upon child's condition when admission was requested and when an unmistakable emergency situation may have existed, precluding summary judgment in action for wrongful death of infant.
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- Courier-Journal Law-Related News Stories -
July 20-27, 2003
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- Disclaimer at www.LouisvilleLaw.com/disclaimer.htm
- The Content contained on the Web site has been
prepared as a service to its readers and the Internet community
and is not intended to constitute legal advice. We have used
reasonable efforts in collecting, preparing and providing quality
information and material, but do not warrant or guarantee the
accuracy, completeness, adequacy or currency of the information
contained on or linked to the Web site on in this e-mail. Users of
information from the Web site or e-mail or links do so at their
own risk.
Thank you,
Mike Stevens |
|
Editorial Staff (Folks who
summarize these)
-
Jeri Barclay
-
Tim Hatfield
- Paul Schurman
- Mike Stevens
-
Jim Worthington
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