Alex Argotte M.D. v. Jacqulyn G. Harrington
2017 Ky. LEXIS 275
| Ky. | 2017Background
- Harrington underwent placement of an inferior vena cava (IVC) filter by Dr. Argotte before gastric bypass; she later suffered filter fracture with fragments migrating to her lungs.
- Harrington signed a written consent form listing “migration of filter” as a risk; she testified neither Argotte nor staff explained the form or told her of fracture/fragmentation risk or whether the filter would be removed.
- At trial Harrington’s counsel said no expert witness would be called, arguing jurors could use common sense to decide what a reasonable person should have been told.
- After opening statement the trial court granted a directed verdict for Argotte, reasoning expert testimony was required to prove breach of the medical standard.
- The Court of Appeals reversed; on discretionary review the Supreme Court of Kentucky affirmed the Court of Appeals, but on different grounds based on Sargent v. Shaffer, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a directed verdict was proper immediately after opening because plaintiff announced she would not call a medical expert | Harrington: expert unnecessary for proving lack of informed consent under KRS 304.40-320(2); jurors can decide what a reasonable person would have understood | Argotte: without expert proof plaintiff cannot show breach of the professional standard or the requisite medical facts; admission fatal | Directed verdict improper as to the KRS 304.40-320(2) claim — plaintiff need not present expert to show what a "reasonable individual" would understand; directed verdict proper as to other claims needing medical expertise |
| Whether expert testimony is required to establish compliance with KRS 304.40-320(1) (professional standard) | Harrington: conceded she would not contest the professional standard or would not call an expert | Argotte: compliance with subsection (1) requires expert proof and plaintiff admitted none would be offered | Expert testimony required to challenge subsection (1); plaintiff’s lack of expert forecloses proof on that element |
| Whether "migration of filter" on the consent form sufficed to inform a reasonable person of the risk of filter fracturing/fragmentation | Harrington: jurors can decide whether "migration" conveyed fracture risk to a reasonable person | Argotte: clinical meaning may differ; expert input could be necessary | Court: factual question for the jury under KRS 304.40-320(2); no expert required to decide ordinary comprehension of phrase |
| Whether failure to inform that the filter could be removed implicates KRS 304.40-320 informed consent duty | Harrington: non-disclosure of removability was a breach of informed consent | Argotte: removability is not a substantial risk of the placement procedure | Court: not a substantial risk under KRS 304.40-320(2); trial court properly directed verdict dismissing that claim |
Key Cases Cited
- Sargent v. Shaffer, 467 S.W.3d 198 (Ky. 2015) (construed KRS 304.40-320 as two conjunctive elements governing informed consent)
- Bierman v. Klapheke, 967 S.W.2d 16 (Ky. 1998) (standard for directed verdict; draw all fair inferences for nonmovant)
- Baker v. Case Plumbing Mfg. Co., 423 S.W.2d 258 (Ky. 1968) (opening-statement admissions can justify summary disposition if clearly fatal)
- Keel v. St. Elizabeth Med. Ctr., 842 S.W.2d 860 (Ky. 1992) (expert evidence not always required in informed-consent claims where no information was provided)
- Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983) (appellate test for directed verdict review)
- Co-De Coal Co. v. Combs, 325 S.W.2d 78 (Ky. 1959) (opening statement may be treated as judicial admission when it clearly discloses inability to prove a cause)
- Lambert v. Franklin Real Estate Co., 37 S.W.3d 770 (Ky. App. 2000) (caution against granting directed verdicts on opening statements)