ACREE, CHIEF JUDGE.
Ira Branham appeals the Fayette Circuit Court's November 29, 2010 judgment in favor of Appellees Troy C. Rock, M.D., Larry L. Britt, M.D., Calixto M. Pulmano, M.D., and Jason L. Keszler, D.O. (collectively the "Physician Appellees"); the judgment followed a six-day jury trial. Prior to trial, the circuit court dismissed Appellees University of Kentucky Medical Center (UKMC) and University Hospital at the Albert B. Chandler Medical Center (University Hospital) on sovereign immunity grounds. On appeal, Branham contends the circuit court committed numerous evidentiary errors, published improper jury instructions, and erroneously dismissed UKMC and University Hospital. Finding no error, we affirm.
The Physician Appellees cross-appeal the Fayette Circuit Court's August 3, 2010 order prohibiting them from pursuing comparative fault defenses at trial. Because we have found no grounds warranting reversal of the judgment in favor of the Physician Appellees, the cross-appeal is denied as moot.
On April 24, 2007, Branham and his wife, Peggy Branham (Peggy), were involved in a single vehicle car accident. The Branhams' vehicle left the roadway, striking a tree. The airbags deployed and Peggy hit her head on the windshield, briefly losing consciousness. Peggy was not wearing a seat belt. The Montgomery County EMS transported Peggy to Mary Chiles Hospital in Mount Sterling, Kentucky. Upon arrival, emergency room physician, Dr. Regina Forster, treated Peggy. Dr. Forster ordered several laboratory tests as well as CT scans of Peggy's head and neck; the CT scans did not reveal any injuries or fractures related to the car accident.
Peggy was flown by a Lifenet helicopter from Mary Chiles to UKMC. Upon admission to UKMC, Peggy was seen and treated by Dr. Rock, an attending emergency room physician, and Dr. Britt, a resident. In addition to repeating certain laboratory tests, Dr. Rock and Dr. Britt ordered a chest x-ray.
The radiology resident on duty, Dr. Jason Keszler, interpreted the x-ray. Dr. Keszler did not perceive any signs of a traumatic aortic injury. He did, however, discover "blunting to the left costophrenic angle which may be secondary to pleural effusion or scarring." Dr. Keszler also discovered "an approximate 3.5 cm mass-like density in the lower left lobe which is worrisome for neoplasm" and recommended a CT of Peggy's chest for further evaluation. Attending radiologist Dr. Calixto Pulmano concurred with Dr. Keszler's report, adding that he perceived a "left lower lobe atelectasis with left lower lobe collapse."
Peggy remained in the emergency room for approximately two hours. During her stay, Dr. Rock and Dr. Britt examined and interacted with her on several occasions. Except for moderate leg and hip tenderness, Peggy did not complain of any pain; she remained in stable condition. Dr. Rock and Dr. Britt did not perceive any signs or symptoms of active internal bleeding related to an aortic injury. As a result, they concluded an immediate chest CT was not medically or reasonably indicated. Peggy was discharged at 10:30 p.m. with instructions to follow up with her family physician within a week for further evaluation concerning medical concerns unrelated to the car accident.
On April 26, 2007, approximately thirty-six hours following her discharge from UKMC, Peggy passed away at home. Kentucky Medical Examiner, John C. Hunsaker, III, M.D., conducted an autopsy. Dr. Hunsaker concluded Peggy died as a result of blunt force trauma of the chest, an aortic injury. Specifically, Dr. Hunsaker discovered Peggy's "descending aorta was transected, a process which developed over less than 2 days after the collision and eventuated into frank rupture of the mural tear of the aorta."
On April 26, 2008, Branham, as the Administrator of Peggy Branham's Estate, and individually, filed suit in Fayette Circuit Court claiming medical negligence and wrongful death against the Physician Appellees, UKMC, and University Hospital.
Pursuant to a prior court order, on October 16, 2009, the Physician Appellees identified five non-party medical experts to testify on their behalf at trial: Dr. O. John Ma, Chair of Emergency Medicine at Oregon Health & Sciences University; Dr. Bruce Janiak, the Vice-Chair of Emergency Medicine at Medical College of Georgia; Dr. Michal Foley, a radiologist in private practice in Tampa, Florida; Dr. Dennis Whaley, a radiologist in private practice in Lexington, Kentucky; and Dr. Addison May, a trauma surgeon at Vanderbilt University.
Prior to trial, Branham and the Physician Appellees filed competing motions in limine. Branham sought, inter alia, to limit the defense to one expert in each field of radiology and emergency medicine. The circuit court denied Branham's request. The Physician Appellees sought to exclude, inter alia: (1) discussion concerning a May 13, 2005 Agreed Order between Dr. Rock and the Kentucky Board of Medical Licensure (KBML) in which Dr. Rock stipulated that he had written prescriptions for three people (unrelated to this case) without first establishing a doctor/patient relationship, and (2) evidence that Dr. Britt twice failed his medical licensing exam. The circuit court granted the Physician Appellees' request.
The circuit court conducted a jury trial beginning on November 9, 2010, and lasting six days. The jury returned a unanimous verdict for the defendants. Consistent with the jury's verdict, a trial order and judgment was entered on November 29, 2010. This appeal and cross-appeal followed.
As additional facts become relevant, they will be discussed.
Branham presents five arguments on appeal. First, the circuit court improperly excluded evidence of Dr. Rock's prior disciplinary action. Second, the circuit court improperly excluded evidence that Dr. Britt twice failed his medical licensing examination. Third, the circuit court erred in failing to limit the number of expert witnesses testifying at trial on the Physician Appellees' behalf. Fourth, the jury instructions submitted by the trial court failed to comport to applicable law based upon the facts of the case. And fifth, the circuit court erred in dismissing UKMC and University Hospital on sovereign immunity grounds. We are not persuaded by these arguments.
Branham contends the circuit court improperly excluded evidence of prior disciplinary action taken against Dr. Rock by KBML. Branham's argument contains several facets: (1) because Dr. Rock testified as an expert witness, evidence of the disciplinary proceeding impacts his credibility and knowledge as an expert witness; (2) the prior disciplinary action goes to Dr. Rock's medical knowledge and knowledge regarding the applicable standard of care; and (3) the exclusion of Dr. Rock's prior disciplinary action deprived Branham of his right to challenge Dr. Rock's credibility through cross-examination.
"The presentation of evidence as well as the scope and duration of cross-examination rests in the sound discretion of the trial judge." Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997) (quoting Moore v. Commonwealth, 771 S.W.2d 34, 38 (Ky. 1988)). "An abuse of discretion occurs when a `trial judge's decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" Baptist Healthcare Sys., Inc. v. Miller, 177 S.W.3d 676, 684 (Ky. 2005) (quoting Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)).
Branham first asserts that, because Dr. Rock was a named expert witness and testified as such, the disciplinary action taken against his medical license was relevant to his qualifications as an expert witness and was crucial in assessing the weight that the jury should afford Dr. Rock's opinions. The Physician Appellees counter by claiming the circuit court properly limited the cross-examination of Dr. Rock on a collateral matter.
"A witness may be cross-examined on any matter relevant to any issue in the case, including credibility." Kentucky Rules of Evidence (KRE) 611(b); see also KRE 703. Conversely, "a witness cannot be cross-examined on a collateral matter which is irrelevant to the issue at hand." Morrow v. Stivers, 836 S.W.2d 424, 429 (Ky. App. 1992); see also Commonwealth v. Jackson, 281 S.W.2d 891, 894 (Ky. 1955) (holding that generally a witness may not be impeached with a matter which is irrelevant and collateral to the crime of which he is charged) overruled on other grounds by Jett v. Commonwealth, 436 S.W.2d 788 (Ky. 1969). "[A] collateral matter is a fact which is irrelevant to the substantive issues of the case[.]" Underwood and Weissenberger, Kentucky Evidence Courtroom Manual 339 (2008-2009 ed.); see also Black's Law Dictionary (9th ed. 2009) (defining a collateral matter as one that is "supplementary" or "secondary and subordinate to" the primary issue).
We find instructive the cornerstone case of Morrow v. Stivers, supra — discussing the cross-examination of an expert regarding prior disciplinary action on his medical license. In Morrow, this Court recognized that the prior suspension of the plaintiff's expert's medical license was a collateral matter, irrelevant to the issue of negligence, and unduly inflammatory. In finding that the trial court properly excluded the evidence, the Court explained:
Morrow, 836 S.W.2d at 429.
Several years later, Kentucky's appellate courts were again confronted with this issue in Reece v. Nationwide Mut. Ins. Co., 217 S.W.3d 226 (Ky. 2007). In Reece, the plaintiff presented expert testimony from Dr. David Thurman concerning the extent and duration of the plaintiff's injuries following a prior motor vehicle accident. Id. at 227. Prior to trial, the plaintiff moved to suppress evidence that the KBML had suspended Dr. Thurman's medical license for improperly prescribing Oxycontin to another patient. Id. at 288. The circuit court denied the plaintiff's motion. Id. In concluding the denial of the plaintiff's motion was error, the Kentucky Supreme Court explained:
Id. at 232. Critical in both Morrow and Reece was the lack of a nexus between the expert's prior disciplinary issues and the expert's proffered testimony in the case at hand. Morrow, 836 S.W.3d at 429; Reece, 217 S.W.3d at 232.
Similarly, in the case before us, Dr. Rock's prior improper practice of writing prescriptions without first establishing a doctor/patient relationship "has no bearing on his knowledge or ability to testify on the matters at hand," i.e., whether he deviated from the applicable standard of care by failing to diagnose Peggy's aortic injury, thereby causing Peggy's death. Morrow, 836 S.W.2d at 429. As in Morrow and Reece, Dr. Rock's past disciplinary action is a collateral matter irrelevant to his treatment of Peggy and to Branham's claim of medical negligence. Morrow, 836 S.W.3d at 429; Reece, 217 S.W.3d at 232.
Next, Branham argues Dr. Rock's prior disciplinary action is relevant concerning Dr. Rock's knowledge, or lack of knowledge, of the appropriate standard of care. In support, Branham points to the portion of the Agreed Order in which a consultant for the Board of Medical Licensure concluded that, "for these three individuals, [Dr. Rock's] diagnosis, treatment, records and overall care were below the minimum standards of care" and Dr. Rock's "prescribing patterns . . . indicate Gross Ignorance of the precautions and prohibitions necessary to insure the safety of patients and the community."
Subject to certain delineated exceptions, "[a]ll relevant evidence is admissible." KRE 402. Evidence is relevant if it has "any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." KRE 401.
We perceive no relevant connection between Dr. Rock's past improper practice of writing prescriptions without a prior doctor/patient relationship and his knowledge concerning the relevant standard of care in the case at hand. The Agreed Order with the KMLB does not tend to establish that Dr. Rock did not know the applicable standard of care pertinent to writing prescriptions, but simply that he violated that standard of care. Moreover, it is something of a stretch to suggest the standard of care relevant to writing prescriptions is the same as the standard of care relevant to a patient's emergency medical treatment. The subject of Dr. Rock's prior disciplinary action simply has no bearing on the case at hand.
Finally, in the last facet of this argument, Branham contends "Rock's testimony in his discovery deposition is inconsistent with the medical board finding" and "[a]s such, evidence that demonstrates Rock's character for untruthfulness is highly probative and Branham should have been permitted to call attention to this trait through cross-examination." (Appellant's Brief at 15, 17). Branham fails to cite any authority to support his position. Accordingly, we decline to address this argument. Hadley v. Citizens Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005) (citation omitted).
Branham asserts the circuit court improperly excluded evidence of Dr. Britt's failure to pass his medical licensing examination on two occasions. In support, Branham contends such evidence is relevant to Dr. Britt's credibility and knowledge of the standard of care. We disagree.
As previously discussed, "a witness cannot be cross-examined on a collateral matter which is irrelevant to the issue at hand." Morrow, 836 S.W.2d at 429. As in Morrow, "the crucial question then is whether the evidence excluded . .. is collateral." Id. To reiterate, "a collateral matter is a fact which is irrelevant to the substantive issues of the case[.]" Underwood and Weissenberger, Kentucky Evidence Courtroom Manual 339 (2008-2009 ed.).
Contrary to Branham's position, we think evidence that Dr. Britt twice failed his medical licensing examination is collateral and irrelevant because it is too far removed in time and substance from the matter at hand. The mere fact that Dr. Britt did not initially pass his medical licensing examination in or about 2000 or 2001 is not indicative of or relevant to Dr. Britt's knowledge of the standard of care when he treated Peggy in April of 2007. We perceive no abuse of discretion in excluding this evidence.
Branham complains the circuit court abused its discretion in failing to limit the number of defense expert witnesses to one per specialty.
As explained, a circuit court's evidentiary rulings are reviewed under the abuse of discretion standard. Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 725 (Ky. 2009) (citing Turney v. Richardson, 437 S.W.2d 201, 205 (Ky. 1969)). "An abuse of discretion occurs when a `trial judge's decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" Miller, 177 S.W.3d at 684 (quoting Thompson, 11 S.W.3d at 581).
As previously referenced in their expert witness disclosure pursuant to CR 26.02(4)(a),
Branham raises these same arguments on appeal. In support of his position, Branham points to F.B. Ins. Co. v. Jones, 864 S.W.2d 926 (Ky. App. 1993). In Jones, the sole defendant, Farm Bureau, raised an arson defense in response to an insurance coverage claim brought by two homeowners. Id. at 927. Following "lengthy and repetitive testimony from three different arson investigators and at least one of their assistants" concerning the cause of the fire at issue, the trial court prohibited Farm Bureau from calling a fifth arson investigator, claiming the investigator's testimony would be "cumulative and useless." Id. at 929. On appeal, this Court upheld the trial court's decision, finding "it cannot be said the trial court abused its discretion in excluding the [fifth investigator's] testimony. Id. at 929-30. In support, the Court noted "Farm Bureau put on testimony from several experts; all testified on the same issue" and "[i]t is not suggested that the substance of the [fifth expert's] testimony would have differed in any detail from the testimony of the other experts." Id. at 930.
Unlike Jones, the case at hand involved four defendants and included a host of complex medical issues covering at least three specialties: emergency medicine, radiology, and surgery. Further, unlike the "repetitive" expert testimony in Jones, the five experts here did not testify concerning the exact same issue. Dr. Ma and Dr. Janiak testified concerning proper emergency medical practice, the signs and symptoms of aortic transaction and injury, and when a chest CT is medically indicated; Dr. Whaley and Dr. Foley discussed the chest x-ray interpretation; and Dr. May testified to liability and causation issues. It is not unreasonable to allow two experts in each specialty — here, emergency medicine and radiology — when the plaintiff has sued two defendants in each of those specialties. As highlighted by the circuit court, each defendant is entitled to at least one expert to testify on his or her behalf. The circuit court was certainly within its discretion in so permitting under the circumstances of this case. Moreover, unlike Jones, we can hardly classify the experts' testimony as lengthy, considering each expert's direct testimony lasted approximately one hour or less.
It bears repeating that a "trial court has the power to control the course of litigation, including control of the amount of evidence produced on a particular point." Washington v. Goodman, 830 S.W.2d 398, 400 (Ky. App. 1992) (citing Woods v. Commonwealth, 305 S.W.2d 935 (Ky. 1957), and Johnson v. May, 307 Ky. 399, 211 S.W.2d 135 (1948)). In exercising that power, the circuit court may exclude relevant testimony if its probative value is substantially outweighed by considerations of judicial economy, such as undue delay or needless presentation of cumulative evidence. KRE 403; Jones, 864 S.W.2d at 930. However, as pointed out by Professor Robert Lawson:
Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.10[5], at 93 (4th ed. 2003) (footnote omitted) (quoting 1 Mueller & Kirkpatrick, Federal Evidence, § 96 (2d ed. 1994)); see also Adams v. Cooper Industries, Inc., No. 03-476-JBC, 2006 WL 2983054, at *33 (E.D. Ky. Oct. 17, 2006)
Here, the circuit court was in the superior position to determine whether the testimony offered by the Physician Appellees' expert medical witnesses was needlessly cumulative causing undue delay and, if so, to limit the number of medical expert witnesses; the circuit court perceived no such basis. On this issue, we defer to the circuit court's sound judgment and affirm.
Branham next contends the instructions presented to the jury were incorrect and improper, resulting in reversible error. The sole basis of Branham's improper-jury-instructions argument is that the instructions failed to comply with Deutsch v. Schein, 597 S.W.2d 141 (Ky. 1980). We find no merit in this argument.
Claimed errors regarding jury instructions are questions of law that we examine under a de novo standard of review. Harstad v. Whiteman, 338 S.W.3d 804, 817 (Ky. App. 2011).
Kentucky permits "bare bones" jury instructions. Cox v. Cooper, 510 S.W.2d 530, 535 (Ky. 1974). "The purpose of an instruction is to furnish guidance to the jury in their deliberations and to aid them in arriving at a correct verdict." Ballback's Adm'r v. Boland-Maloney Lumber Co., 306 Ky. 647, 208 S.W.2d 940, 943 (1948). To that end, proper instructions need only "be based upon the evidence and they must properly and intelligibly state the law." Howard v. Commonwealth, 618 S.W.2d 177, 178 (Ky. 1981).
With respect to Dr. Rock, the trial court instructed the jury as follows:
The circuit court provided an identical instruction concerning Dr. Britt (Instruction 2). Instructions 3 and 4 — pertaining to Dr. Pulmano and Dr. Keszler respectively — differed slightly in that the instructions explained "[i]t was the duty of the defendant, [physician's name], in interpreting Peggy Branham's chest x-ray to exercise the degree of care and skill expected of a reasonably competent physician specializing in radiology acting under similar circumstances." The interrogatories pertaining to all the Physician Appellees, as set forth above, were identical, except for the physician named in the interrogatory. The jury answered "No" to all four interrogatories, amounting to a verdict in favor of the Physician Appellees.
Branham claims the jury instructions, particularly the interrogatories, should have been patterned after those given in Deutsch so as to focus on the event leading to the injury (i.e., the Physician Appellees' failure to properly diagnose Peggy's aortic injury), rather than on the injury itself (i.e., Peggy's death). Thus, according to Branham, each interrogatory should read as follows:
In Miller ex rel. Monticelllo Baking Co. v. Marymount Med. Ctr., 125 S.W.3d 274 (Ky. 2004), our Supreme Court discussed when a Deutsch instruction is required. Notably, the Court explained that Deutsch holds that when a defendant claims an event subsequent to the defendant's negligence was a superseding legal cause, and the circuit court "having decided as a matter of law that the intervening event was not a superseding cause,
Here, the Physician Appellees did not claim at trial, nor do they assert on appeal, that an intervening event caused Peggy's death. Concomitantly, the circuit court was not asked to determine whether any such intervening event amounted to a superseding cause. Deutsch is simply inapplicable. Accordingly, the circuit court did not err in refusing to give a Deutch instruction.
Moreover, the jury instructions provided by the circuit court "properly and intelligibly state[d] the law." Howard, 618 S.W.2d at 178. It is well-settled that the elements of a medical malpractice action are no different than any other negligence action: duty, breach, causation, and injury. Grubbs ex rel. Grubbs v. Barbourville Family Health Ctr., P.S.C., 120 S.W.3d 682, 687 (Ky. 2003). Accordingly, in medical malpractice cases, the "the plaintiff must prove that the treatment given was below the degree of care and skill expected of a reasonably competent practitioner [of the same specialty or class, and under similar circumstances,] and that the negligence proximately caused injury or death." Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93, 113 (Ky. 2008) (emphasis added); see also Reams v. Stutler, 642 S.W.2d 586, 588 (Ky. 1982).
Our review of the jury instructions convinces us that the instructions presented to the jury were proper. The instructions certainly conform to Gunderson and Reams in that the instructions properly combined all of the elements of a medical negligence action by accurately setting forth the standard of care, and requiring the jury to find both that the Physician Appellees failed to comply with that standard of care and the Physician Appellees' actions were a substantial factor in causing Peggy's death. Accordingly, we find the circuit court did not err in instructing the jury.
Finally, Branham asserts the circuit court erroneously dismissed UKMC and University Hospital on sovereign immunity grounds. Branham contends, under the two-part test enunciated in Kentucky Ctr. for the Arts Corp. v. Berns, 801 S.W.2d 327 (Ky. 1991), UKMC and University Hospital do not meet the requirements necessary to be afforded the protection of sovereign immunity.
Branham only pursued vicarious liability claims against UKMC and University Hospital as the employers of the Physician Appellees. Because we have found no grounds warranting reversal of the verdict in favor of the Physician Appellees, the issue of vicarious liability is moot.
For the foregoing reasons, the Fayette Circuit Court's November 29, 2010 judgment in favor of the Appellees is affirmed.
The Physician Appellees' cross-appeal is dismissed as moot.
ALL CONCUR.
