Louisville LawWire 2008:10 COA Decisions

CA affirmed Defendant's convictions for possession of anhydrous ammonia in an unapproved container with the intent to manufacture methamphetamine and possession of drug paraphernalia. Relying on Maryland v. Garrison, 480 U.S. 79, 88, 107 S.Ct. 1013, 1018-1019, 94 L.Ed.2d 72 (1987), CA held suppression of the modified air tank was not required and the trial court did not err by declining to suppress that evidence. Although the search exceeded the scope of the search warrant, there is substantial evidence in the record that the officers' mistake was reasonable given the circumstances. There was no KRE 404(b) error by the admission of the statement that Nash used the modified air tank containing anhydrous ammonia in order to manufacture methamphetamine. TC did err by failing to provide a definition of "approved container" in the jury instructions; however, the error was harmless.

CA affirms in part, reverses in part, vacates in part, and remands this case alleging medical malpractice and EMTALA violations.

Decedent was in an automobile collision, transported to Ohio County Hospital, and evaluated by an RN and ER doctor, reporting discomfort. Her condition detreiorated and approximately 90 minutes later she became unconscious. The doctor diagnosed shock and likely hemorrhaging, ordering a CT scan to determine its location. Decedent received blood transfusions. With the scans, the doctor found abdominal bleeding requiring surgery. Finding no surgeons available, the doctor made arrangements to transport her to Owensboro for surgery. She bled to death by the time she reached Owensboro.

Appellees sued, alleging med mal and EMTALA violations, i.e., 1) failure to screen; and 2) failure to stabilize. The doctor settled before trial. The jury found 50% liability each for doctor and hospital (none for other driver) and awarded nearly $100,000 for destruction of power to earn money and pain and suffering and $250,000 for husband's loss of consortium. Hospital appealed, arguing the TC erred in not granted directed verdicts.

CA holds that EMTALA is not intended to be a federal malpractice statute; it is intended to address patient "dumping" based upon inability to pay. Therefore, violation of EMTALA's screening requirement must be predicated upon a showing of improper motive, which was not shown here. Further, EMTALA's stabilization requirement does not prevent transfer, it merely conditions transfer on certain requirements, which were met here.

As to the loss of consortium claim, CA holds that the claim is only viable for the period between injury and death. It does not extend beyond. As no appreciable time had elapsed between the alleged injury and death in this case, the TC erred in not granted directed verdict. The med mal verdict should be affirmed, but, as the awarded damages were not segregated as to each claim, the award must be vacated and remanded for a new trial.

Digested by John E. Hamlet

The issue in this appeal is whether the Franklin Circuit Court erred by granting summary judgment in Brown's favor as to whether the DJJ could collect DNA samples from seven unnamed juveniles. For the following reasons, CA affirmed in part and reversed and remanded in part.

KRS 17.174 applies to juveniles who have been adjudicated public offenders for the commission or attempted commission of offenses defined in KRS 17.170 or KRS 17.171. However, the statutes do not require samples to be taken from juveniles who have been adjudicated of burglary. The DJJ was not required to promulgate any administrative regulations prior to its implementation of DNA sampling as required by KRS 17.174. Weighing the totality of these circumstances, the collection of the appellants' DNA samples is reasonable, and does not violate the appellants' right to be free from unreasonable searches and seizures.

Digested by Scott C. Byrd
www.olginandbyrd.com

John Gilbert, a well-known neurologist based in Lexington, his medical company and his satellite offices (collectively "Gilbert") appeal the TC's Order affirming the decision of the Cabinet for Health & Family Services finding Dr. Gilbert in violation of KRS 216B.010, et seq., by operating health facilities with MRI services in London, Hazard and Florence without first obtaining a certificate of need ("CON"). Gilbert's main contention on appeal was that his facilities are exempt from licensure per KRS 216B.020(2)(a), which exempts "private offices and clinics of physicians, dentists and other practioners of the healing arts." The Cabinet deemed this statute inapplicable since Gilbert did not actively practice at the 3 satellite offices and thus could not be considered a physician's "private office." Gilbert conversely argued that the statute includes no element of personal active participation at the offices, only ownership.

The COA began its analysis by ruling that since both party's interpretation of the subject statute was reasonable, the statute was ambiguous not on its face but as applied, and therefore constituted a latent ambiguity. The COA then turned to the legislative intent, and first noted its agreement with Gilbert that the Legislature did not intend to prohibit or discourage any physician from establishing satellite offices in medically underserved communities such as Hazard and London in this instance by permitting the exemption only if the physician owner personally and actively participated in the practice at each office. To remove any doubt, the COA affirmatively held that no such personal, active participation is required. On the other hand, the COA felt that the real focus of the Cabinet's inquiry should have instead been on the kind of activity that usually takes place at the office for which an exemption is sought. To this end, Gilbert had the burden of demonstrating to the Cabinet that the exemption was, in fact, available and applicable to each of the 3 offices.

The COA's review of the official record found that each of the 3 offices were primarily used as diagnostic facilities for patients referred by other physicians and were not used primarily to obtain scans for diagnosis of Gilbert's own patients as he claimed. The evidence showed that no licensed physician was even actively present at the two eastern Kentucky offices while the physician who did work at the Florence office only read the films from the MRI scans performed at that office on patients referred by other physicians. Thus, the COA concluded that all three offices had all the hallmarks of a diagnostic testing facility. As such, the exemption under KRS 216B.020(2)(a) did not apply and a CON was needed for all three facilities on an individual basis, which Gilbert had failed to obtain. The TC's Order sustaining the ultimate decision of the Cabinet was affirmed by the COA.

The Court affirmed an award of disability benefits to a teacher who fell while attending a beta-club convention with her students out of town. The Court held that the activity benefited the employer, and therefore arose out of employment even though it occurred away from the employer’s premises.

Peter Naake

SCHROEDER V. KENTUCKY FARM BUREAU MUT. INS. CO.
INSURANCE: UNFAIR CLAIMS SETTLEMENT PRACTICES ACT AND EXCLUSIVITY OF REMEDY
2006-CA-000495
NOT PUBLISHED: 94
DATE RENDERED: 2/22/2008

MARSH V. KESSINGER
TORTS: Premises liability and renters
2006-CA-001672
NOT PUBLISHED: 116
DATE RENDERED: 2/22/2008

P.C. V. J.J.
FAMILY LAW
2007-CA-000925
NOT PUBLISHED: 74
DATE RENDERED: 2/22/2008

C. (J.W.) V. KENTUCKY CABINET FOR HEALTH AND FAM. SERVICES
FAMILY LAW
2007-CA-001246
NOT PUBLISHED: 110
DATE RENDERED: 2/22/2008

WOODS V. LOUISVILLE PLATE AND GLASS
WORKERS COM
2007-CA-002204
NOT PUBLISHED: 102
DATE RENDERED: 2/22/2008

CAIN V. LODESTAR ENERGY
WORKERS COMP
2007-CA-000010
NOT PUBLISHED: 100
DATE RENDERED: 2/22/2008