*1 439 respect. in this did not err court pre- trial The evidence at 18-19. 967 S.W.2d fairly settled it is well uncontroverted Previs concedes at trial was sented that, ex with few Previs at the fully passed not in this Dailey had Commonwealth by truck back into impeached maneuvered his cannot time he a verdict be ceptions, of a clear violation v. right juror. lane. Such is Rietze testimony of a constitutes statutory duties and Dailey’s over Williams, (Ky.1970), 613 458 S.W.2d per se. negligence College v. grounds Centre ruled on other (Ky.2003); Trzop, 127 S.W.3d several Appeals of referenced The Court Inc., 762 Hospital, Marymount Doyle v. by Dai- self-serving comments speculative, As noted (Ky.App.1988). S.W.2d with inexperience Previs’s ley concerning juror to allow Appeals, of the Court have “belief’ that she must biking and his it after overturn a verdict her, single-handedly pass as he tried to accelerated very invite rendered “would have has been which a could evidence from trial] 59.01 new [CR mischief the Dailey neg- kind of reasonably found that was at however, Id. so, designed court to obviate.” doing rule was ligent. negli- that Previs’s recognize failed to Appeals of the Court The decision any bearing on any, if did not have gence, this matter is remanded and reversed as a Dailey negligent the fact pro- for further Court the Bourbon Circuit Viewing the facts even matter of law. opinion. with this ceedings consistent trial Dailey, light most favorable submitting question court erred GRAVES, COOPER, LAMBERT, C.J.; jury, and we Dailey’s negligence to the JJ., SCOTT, ROACH, concur. and that the verdict ab- must conclude flagrantly him of was so solving WINTERSHEIMER, J., dissents weight of the against palpably opinion. without reached as to indicate that was passion prejudice. See as a result of
Lewis, supra. should hold that the trial court
We verdict on granted Previs directed However, Dailey’s negligenсe.
the issue to consider Previs’s is still entitled bicycle, appor her operating duties BAYLESS, II; Michael Michael J. that Previs was tion fault should it find Bayless; Deborah J. given negligent as well. Bayless, Appellants both Previs’s duties instructions on directed not but was apportionment, Dailey. finding for On upon them consider M.D.; BOYER, and Walter L. Robert
remand, addi must consider these Eiseman, M.D., Appellees. issues. tional No. 2003-SC-0250-DG. issue of the first Our resolution argument concern moot Previs’s renders Kentucky. Court Supreme a new grant failure to ing the trial court’s 22, 2005. Dec. juror allegations upon Norkus’s trial based Nevertheless, we juror misconduct. Appeals the Court agree with *3 Metz, H. Koenig,
John Kenneth J. Cin- cinnati, OH, Appellants. Counsel for Benton, Benton, Frank V. Benton & Luedeke, District, Historic East Row Newport, Robert L. Appellee, Counsel Boyer, M.D. O’Hara, Taylor, Tay-
Arnold Ruberg, S. lor, Futscher, Sergent, Sloan & A. David Covington, Appellee, Counsel for Walter Eisеman, M.D.
ROACH, Justice.
I. INTRODUCTION appeal Appellants’ This arises from alle- gation malpractice against medical Rob- Eiseman, Boyer, ert L. M.D. and Walter M.D., failing diagnose a wrist frac- trial, Appellants, Bay- At ture. Michael J. less, II, parents, and his Michael J. and Bayless, Deborah were awarded for medical bills but no damages pain suffering. They appeal the decision of Appeals affirming the Court of the denial of their motion for a new trial Appellants allege Kenton Circuit Court. occurred, that numerous errors the cumu- lative effect of which entitles them to a (1) Primarily, they trial. claim: new “zero” verdict for and suf- (2) fering damages inappropriate; scope questioning that limitations on the court, particularly allowed the trial witnesses, alleged related to the bias of improper. were In addition to their two claims, Appellants centrаl raise several ad- ditional issues which we discuss below. Having reviewed each of error, claims we conclude are with- out merit. Thus we affirm the Court of Appeals.
II. BACKGROUND II, right Bayless, Michael fractured his on March playing wrist while with friends hospital, from the night, discharge his After his Later that wrist be- very to lead active Michael continued painful, came so mother swollen his high as a of his school’s lifestyle member emergency took him the of St. room During team. this (“Medical freshman baseball Center Cen- Elizabeth Medical time, experienced he that he also claimed ter”).1 wrist, routinely icing pain in his chronic triage emergency nurse at the room over the counter medi- taking arm x-ray of Michael’s wrist. Dr. ordered an his symp- cations an effort to relieve Boyer Robert L. examined Michael. Dr. pain, of constant Despite toms. his claim Boyer’s notes of this еxamination included parents sought neither Michael nor his pain.” Bay- the entry “no wrist Deborah follow-up until two medical treatment that, testimony suggested less’s in addition emergency months after visit to Michael, physical to his examination of Dr. finally that he room. Michael learned had Boyer x-rays also examined had during a visit to his a fractured wrist boy’s Boyer Although wrist. did not pediatrician. Although Michael testified at meeting, details of their remember injury trial that was not discovered Michael testified that because had ended, until after season the baseball *5 any acute complained pain during his prior his testimony impeached by de- was examination, thought brief un- it was testimony which indicated that he position likely that he would have reviewed the actually injury shortly had learned of x-rays. Boyer diagnose wrist Dr. failed to of the season and had before end the fracture and concluded that instead continued to play. only sprained Michael had He wrist. season, Wyriek, After the Dr. John an wrap injured Michael to instructed and orthopedic surgeon, evaluated treated ice, bandage, wrist an elastic apply with Because Michael’s fractured wrist. ibuprofen pain. and Pre-printed take delay diagnosis, movement and calcifica- on Michael’s discharge paper- instructions made tion of the fractured bone treatment stated, work “IF YOUR CONDITION Dr. by casting impossible. Wy- wrist RETURNS, WORSENS OR PLEASE performed surgery rick subsequently CALL OR SEE YOUR OR PHYSICIAN He repair the fractured bone. testified THE DE- RETURN TO EMERGENCY great that he had confidence sur- PARTMENT.” successful, gery was that Michael would wrist, and strength have normal in the that Eiseman, day, The next Walter any Michael surgery had not rendered contract radiologist under with the Medical susceptible pain to chroniс arthri- more Center, x-ray of examined the Michael’s short, surgical tis—in Michael’s treatment recognize wrist. He too failed to the frac- had his no less than wrist successful trial, stipulated ture. Dr. Eiseman At by casting. treated promptly been he had the standard of appli- violated care trial, liability no on failing jury him in Mi- At found diagnose cable to wrist, his care part Boyer chael’s but he of Dr. and argued broken However, jury detect the had not treatment of Michael. failure to fracture was liable for contributing been factor to concluded that Dr. Eiseman a substantial in Michael’s treatment. injury. negligence Michael’s portion pursue of the appeal 1. The an as to this Medical Center was named as a defen- lawsuit, verdict, exonerating original jury’s the Medical Center jury dant but did in the any against liability. not find it. declined to 444
The jury also found that Michael аnd his
justified
verdict
testi-
parents failed to exercise ordinary
mony
care for
at trial.
safety
health,
and appor-
It is well-established that appel
tioned
between Dr. Eiseman and late courts in this state review trial court
Appellants equally.
found dam-
rulings on a motion for new trial on
$9,802.16
ages of
on
based
the amount of grounds
inadequate damages
under a
expenses, primarily
his medical
the costs
“clearly erroneous” standard of review.
surgical procedure,
but
See,
Fultz,
e.g., Cooper v.
ment of the trial against court Dr. Eise- ruling on a motion for trial depends new $4,901.08. man was great upon extent factors may which
The trial court denied Appellants’ mo- readily appear appеllate an record. trial, tion for a new and the Court of Only if appellate court concludes that Appeals affirmed on appeal. direct We the trial court’s order was errone granted discretionary review. may ous Turfway it reverse.” Park Rac
ing
Griffin,
Ass’n v.
S.W.2d
added).
III.
(Ky.1992)
ANALYSIS
(emphasis
Accordingly,
we
trial court
treat
the decision of a
above,
As
Appellants allege
noted
nu-
great
issue with a
deal of deference.
merous trial errors.
primary
The two
is-
sues—the appropriateness
addition,
recently rejected
we
“zero” verdict for pain
suffering
the notion that a
verdict of zero for
the trial court’s
scope
restriction as to the
suffering
inadequate
as a mat
*6
questioning
witness
great-
—demand
ter of
in
law
cases where a
also
est attention and will be discussed first.
damages
awards
for
In
expenses.
medical
Swift,
(Ky.2001),
Miller v.
A. “Zеro” Verdict for Pain
held,
Kentucky
we
in
...
law
does
“[t]he
Suffering
and
require
not
damages
to award
for
Appellants claim it
pain
was error for
and
it
suffering
every case which
the trial court
deny
their motion
for
awards
at 601.
expenses.”
medical
Id.
Park,
new trial on the
of damages
pain
issue
Relying heavily
Turfway
we reit
motion,
and suffering. Appellants’
pursu
erated
...
that
review
is limited to
“[o]ur
59.01(d),
ant to
specifically
CR
challenged whether
the trial court’s denial of [the
validity
verdict of zero motion
clearly
was
erroneous.”
retrial]
damages for Michael’s pain
suffering.
and
Id. Although
specifically argued
not
in this
Appellants
case,
claim that uncontroverted evi
we
general
must also note that the
dence of
pain
Michael’s
from the surgery
principle
in Miller —that a zero
advanced
entitled them to an award for
pain
may
these dam verdict for
suffering
and
some
ages.
In response, Appellees argue that
times be appropriate
not constrained
—is
Rather,
evidence was inconclusive and to the facts of that case.2
that
Miller,
plaintiff
In
judge’s
suffered from a vari-
dent. We noted that the trial
decision
ety
prior
denying
damages
of chronic illnesses
accident.
on the issue
was
retrial
pain
suffering
appropriate
basis of her claim for
the evidence at trial
”[b]ecause
pain
supported finding by
was that the
from these condi-
that Miller did
by
injuries
tions had been
pain
exacerbated
her
not
a result of the
suffer additional
Miller,
and had increased in the wake of the acci-
accident....”
cedure. There was
contrary,
substantial evidence
it is
Id. at 923
overruled.”
Lara,
for the
to
Appellants
ing
conclude that
Md.
Wrobleski v. Nora de
353
(1999)).
were not entitled to a
award for
B. of Cross-Examination judgment that we this case reverse the Appellants claim process their due Hadl, 816 authority on the of Mitchell rights were by (“When violated the trial court’s (Ky.1991) the facts 183 S.W.2d decision to limit scope of cross-exami- not reveal a fundamental basis for decision nation of possible witnesses as to bias and duty it is our to presented by parties, prejudice. Specifically they claim that misleading to avoid a address issue they freely permitted should have been law.”). This we will not application of the (1) questions ask relating compensa- to the Mitchell, Appellants’ do. The reliance on (2) expert tion of witnesses and to whether the case on a wherein the Court decided any commonality there was between the not addressed unique legal theory that was insurance experts carriers of those and the Appel- by any party, clearly misplaced. Appellees. We address these claims indi- not, cannot, do indeed claim that the lants vidually. preventing action trial court took expert wit- raising them from the issue
1. Cross-Examination
as
importantly,
compensation.
ness
More
Compensation
however,
in-
only discouraged the
Current
expert
wit-
testimony
troduction of
addrеssed,
This issue was not even
to admit
compensation;
ness
the decision
preserved
objection,
much less
by
at trial.
testimony
ultimately left to
such
was still
they
admit that
did
raise
Appel-
Had
the discretion of a trial court.
expert compensation
justi
the issue of
testimony,
lants wished to introduce the
because,
trial,
fy this failure
at the time of
could,
should,
have raised
Kentucky
generally
courts were not
re
such,
no doubt
issue at trial. As
there is
quired to
questioning.
allow such
See
the is-
forego
decision
Kentucky,
Current v. Columbia Gas of
their own. Such
unquestionably
sue was
Inc.,
(Ky.1964)
(holding
S.W.2d
that is ar-
judgment,
even one
mistake
within
although
it was a matter
understandable,
no basis
provides
guably
discretion,
trial court’s
admission of testi
for reversal.
mony disclosing specific details of witness
favored).
compensation was not generally
as to
2. Cross-Examination
Current was overruled
this Court
Cоmmonality of Insurance
Perry,
(Ky.2002),
Tuttle v.
447 in at least make an avowal only by the Court of counsel to ly been addressed Leedhаnachoke, ade- to the issue could be Wallace v. order ensure Appeals. the (Ky.App.1996), appeal. 624 Court on quately “[W]ithout 949 S.W.2d reviewed Appeals of held that “the would [trial court] an to show what a witness avowal of required probative to balance the value no basis court has appellate have said an commonality in- the evidence between in ex- [of error determining whether an prejudi- ... the against carriers] preju- surance cluding testimony was proffered may Commonwealth, it before it produced cial effect have dicial.” Cain the permitted proposed cross-examination case, it is (Ky.1977). In this S.W.2d 369 The by plaintiffs.” the Id. at 628. Court identified Appellants enough note: Appeals of went to proffer to their failure issue because physicians mere fact that the two much less commonality, оf evidence carrier— shared common insurance on behalf any improper motive bias degree more compelling absent a of con- any finding testifying, precludes those by evince nection—does not bias prejudice. expert, arguable its relevance or
probative value is insufficient to out- Allegations Error C. Miscellaneous rule as weigh well-established (1) claim the trial Appellants also inadmissibility of as to evidence the exis- finding Appellees by court erred tence of insurance. thereby granting parties were adverse agree Appeals. Id. We with the Court challenges; peremptory them three each in holding a sound applica- Its Wallace is (2) Ap- improperly the trial court denied KRE required of the balancing by tion test (3) consortium; pellants’ of loss of claim applied issue specifiс of com- engaged their Appellees counsel and/or monality of carriers. insurance (4) misconduct; jury erro- instructions During Appellants’ cross-examina Ap- neously to consider directed Boyer, tion of Dr. the trial court sum (5) the pellants’ comparative negligence; marily proposed refused to this allow line instruct properly instructions failed questioning engaging without in the (6) law; applicable as to the balancing test described Wallace. The Boyer’s to Dr. verdict as trial court’s refusal even consider ad evidence; and supported by was not might of this testimony mission constitute (7) We jury engaged misconduct. if prejudi error it could shown to be be these in turn. address each of issues However, cial. we cannot undertake such analysis because there is no evidence Peremptory Challenges record, avowal, even of commonali claim it error that was ty of insurance carriers. at Dr. Eiseman for the trial court to allow torney proffer stated would Dr, chal Boyer peremptory three commonality malpractice provid as to during pro trial, lenges each selection in the oc ers later but never rule of CR 47.03. The Having cess violation opportu curred. been denied states, “In civil cases part: in relevant nity Boyer to cross-examine Dr. on this issue, per- three upon Appellants’ each side shall have opposing incumbent *9 any expert testify testify witnesses at the due to call Evans unable to trial conflict, scheduling Dr. did however Janiak behalf.
testify before the court. Dr. Eiseman did not emptory challenges, co-parties but having on this issue and rely instead on a general antagonistic interests shall have per- three objеction Appellees pursued a 47.03(1). emptory challenges each.” CR common defense strategy throughout Appellants’ The thrust of argument Appellees trial. have each noted several Boyer and Dr. Eiseman were not suffi- during instances the trial which demon- ciently antagonistic to sepa- entitle them to antagonistic strated their interests. That peremptory rate challenges. said, being there is no need to recount The trial court must consider several each of those instances here. As noted factors in allocating appropriate num- above, ruling a trial court’s under CR ber of peremptory strikes under CR 47.03. necessarily prior 47.03 is made to trial and In a recent opinion, unanimous we held: a review of that need decision not focus on
Generally, there are three elements to
actually
what
during
proceed-
occurred
be considered in
if
determining
coparties
ings.
1)
antagonistic
have
They
interests.
are
Taylor,
Roberts v.
449 all; it аt rather a loss of issue in was minor consortium action which decedent child, surviving parent, parents, parent or to from merely recover “allow[s] may for loss of and com- recover affection of the value wrongdoer reasonable panionship that would have been derived ren- or which he himself care attendance minority, during from such child its negli- of to as the result ders his child to all other elements of dam- addition at gent injury.” Id. 600. in a age usually wrongful recoverable secondary primary no cited Having action.”). say It that death suffices position, Appel- their authority supporting Bayless Michael not killed. depart from give lants us little reason Appellants Department cite Edu of Appeals in holding of Court Blevins, (Ky. v. 707 782 cation S.W.2d McKee, v. 834 Kentucky, Humana Inc. of 1986), general for that a proposition case, (Ky.App.1992). In that S.W.2d 711 оf may bring a claim for loss con
parent permanent despite proof of serious and sortium. But the of action Blev cause child, of injury Appeals the Court premised ins was 411.135 loss KRS of in- upheld the trial court’s denial an alleged of consortium were after com- struction on “the loss of [the child’s] Nothing the death a child. of Blevins affection,” is, a love and that panionship, supports expansion of loss of consor claim of Id. parental for loss consortium. beyond the case tium claims extreme of a correctly Appeals at The Court of 725. wrongful did, if it death lawsuit. Even we Kentucky noted that “there is no law point holding would out that the in Blevins of an giving which authorizes the such arose, is limited to the context in it which Id. instruction.” namely as against entity, an action a state tortfeasor, and not an pursuant individual 3. Dr. Eiseman Misconduct of Commonwеalth’s Board of Claims Attorney and His Furthermore, Act.4 Blevins ’s allowance they are Appellants argue entitled parental loss of consortium un claims “[mjisconduct to a trial because of the abrogated by new der act was as statute Kentucky prevailing ... of or of his attor recognized party, in Williams De 59.01(b). Education, 145, partment ney.” Appellants’ claim that 113 S.W.3d CR of (Ky.2003). 156 shortly after before the trial stipulating requisite that had deviated from the Appellants provide binding authority no x- examining of care standard Kentucky recognizes that suggesting law attorney ray, Dr. Eiseman testified and loss parental cause action for consor- argued that was inconse deviation injury in a personal tium case such this. “sorry” quential and that he was opinion Instead cite an that Dr. Eise- Appellants argue mistake. Appeals, Ohio Court of Rouse v. Riverside man and his counsel should have been 206, Hosp., App.3d Methodist 9 Ohio permitted to make and similar state these 593, (1983), O.B.R. 459 N.E.2d they had ments to the since admitted claim as proof which “other injuries. How “liability” for Michael’s recognized protected courts ever, a fun argument reveals right of a to be for the parent compensated our law misunderstanding tort damental interruption But parental rights.” Ap- stipula Dr. Eiseman’s assumes pellants’ assertion about Rouse fact, tion he had violated the standard false. Rouse does not address the Chapter 4. KRS
450 equivalent trial,
care was to an jury admission of his ate for a at address the does not liability injuries, for Michael’s alleged ultimate they fundamental error have here. in issue this case. light forego- in this There sufficient evidence case was ing, we have reviewed Dr. Eiseman’s testi- some re- suggest Appellants bore mony find no evidence of misconduct. claimed, injuries they sponsibility for the day delay 66 the least of which was the Jury Comparative Instructions on between the emer- Michael’s treatment Negligence gency to seek follow- room and his decision
Appellants contend the trial up trial treatment. Therefore the court’s court erred submitting an instruction to instruct jury decision on the issue of jury permitted which finding of com comparative not error. negligence was parative negligence part on the of the Ap
pellants, Bayless “Michael par and/or Inadequacy of 5. General ents.” Appellants’ primary argument is Jury Instructions question that it error to was submit negligence jury is, ground appeal because of at This youth inexperience his relative given best, makeweight argument. only
that he
14 years
old at the time
provided
brief
the instructions
states that
claim,
the accident.
support
their
legal
at trial
no
“essentially [gave] the
Appellants
Hosley,
cite Baldwin v.
328
specif
no
Appellants
direction at
cite
all.”
(Ky.1959),
S.W.2d 426
which discusses the
ic
problems
with the
deficiencies
application of
long-overruled
principle
only broad
instructions
instead make
contributory
negligence5
cases where
They ask that we
assertions of error.
a party
a minor.
also
They
is
claim that
Cooper,
overrule
v.
Appellants claim there was no fac alone, however, by a long and is buttressed tual for а jury basis instruction on the line call for a Kentucky cases which comparative issue of negligence and such See, substantially e.g., approach. similar an impermissi instruction was therefore Co., Meyers Chapman Printing 840 v. ble. “an While true that instruction Kasdan, (Ky.1992); S.W.2d v. Rogers 814 must not an be submitted on issue that is Grecco, (Ky.1981); King 612 v. S.W.2d 133 entirely unsupported by evidence or rea 111 The in (Ky.App.2002). therefrom,” S.W.3d 877 sonable inferences West Vir in this Cain, provided structions to the case ginia & v. Equip. Tractor Co. 487 clearly adequate Kentucky’s were (Ky.1972),Appellants 911 under S.W.2d Furthermore, Ap such established standard. ignored and all in constructing Instead, pellants’ any specific failure to defi argument. cite ciency gen than a present litany provide any reasons that or to more their should be or mini objection excused eral to the of “bare practice an argument, mized. Suсh while bones” no reason to appropri- gives instructions us comparative pure negli- (Ky.1984). 5. The doctrine of S.W.2d 713 gence adopted Hays, v. Hilen Racing Park Ass’n Turfway of in- court. from method See depart our time-tested *12 667, 669 (Ky.1992). juries. Griffin, 834 S.W.2d structing the in this case in the evidence Viewing Jury’s No 6. The Verdict of it is Boyer, to Dr. light most favorable Liability Boyer for Dr. there was substantial evidence clear that jury’s claim that the favor. his supporting the verdict Boyer of Dr. was not verdict favor that it uncon- Appellants first contend by sufficient evidence that supported Boyer Dr. did not perform that troverted deny error for the trial court to it was Mi- physical examination of adequate an pursuant motion for a new trial to their wrist, as namely palpation chael’s a known 59.01(f). Appellants have identified CR Signifi- Snuff-Box Test.” the “Anatomic independent examples they of what three the cantly, Boyer not remember Dr. did of claim was uncontroverted evidence Dr. How- meeting with Michael. details of his his al Boyer’s negligence. These include ever, taken testify *13 that the deviation was not the cause or end, Appellants’ the of list “uncontro- proximate of opposing party’s cause the evidence, verted” though per- it musters injury. trial The court’s instruction to the haps strongest arguments the factual from jury clearly contemplated just on this issue jury might which a that Dr. Boyer infer such a scenario. It read: liable, was is incomplete in that it avoids any mention of the record that Defendant, Eiseman, M.D., The Walter might opposite a to lead conclu- stipulated has that he did meet his We, however, ignore sion. cannot the ex- duty radiologist of care as a when he istence of that simply, evidence. Stated Bayless’ x-ray 12, read Michael of March Appellants ignored obligation their to show 1995. Given Walter Eiseman’s failure to not based verdict was on comply you this if duty, with believe substantial evidence instead endeav- from the evidence that such failure was prove ored to to this that they Court had a causing substantial factor in Michael case. “better” injuries, Bayless’ you will find for Mi- Bayless against Eiseman; chael Walter Juror Misconduct otherwise, you will find for Walter Eise- Finally, claim it Appellants was error to man, M.D. deny their motion for a trial new because Bayless et al. v. St. Elizabeth Medical 59.01(b) CR permits such relief when there al., (Kenton Center et No. 96-CI-00438 jury.” has been “misconduct Specif- 2001) (Jury Cir. Ct. Jan. filed Instruc ically, claim Appellants that was miscon- 4). tions, light Instruction No. of these juror against duct for one to vote facts, their statement brief for Dr. Eiseman because the doctоr had that so instructed “[t]he [trial court] stipulated recognize that his failure they plaintiffs that should find for x-ray fracture of Michael’s wrist fell issue,” that inaccurate. Like appropriate below the of standard care and wise, juror claim their of misconduct is had been instructed as to that wholly without merit. “[tjhis state, illogical fact. Appellants vote prejudice a clear demonstrates bias CONCLUSION IV.
which ability forecloses the achieve a juror stipulations fair trial ignores when Appellants argue are entitled and a press court’s directive.” Appellants to a new trial due to the cumulative effect despite this claim the fact alleged at errors have occurred trial. concluded their Dr. Eiseman Having identify any favor error in failed injuries, liable for partially we affirm Court of proceedings, Ap- by albeit a vote 11-1. peals. by Appeals,
As noted Court authority COOPER, JOHNSTONE, legal support cite no SCOTT and WINTERSHEIMER, JJ„ ing They this claim. confuse Eise- concur. casting surgery associ- pain from versus GRAVES, J., separate opin- dissents wrist, it is LAMBERT, C.J., treating a fractured joins. ated with ion in which only this conclusion important to note that GRAVES, Dissenting Justice. healing pain associated with refers to the does not include itself, and majori- I the wrist from the Respectfully, dissent surgical proce- with the pain associated ty’s to affirm the “zero” verdict decision Mi- placing involved procedure suffering. dure. pain and anesthesia, cutting general under chael diag- Bayless improperly Michael thigh, harvesting a portion into Michael’s diag- sprained In this nosed with a wrist. inserting bone thighbone, nosis, him that doctor told metal permanent into his wrist with than sprained from a wrist could be worse undergone not have Michael would screw. bone, long рeriod could last a broken diag- if fracture had been surgery physician time. When a examines majority *14 The timely in a manner. nosed diagnosis, patient gives expert and an the pro- "withthis pain dismisses the associated patient naturally diagnosis. this trusts “performed it under cedure because was by all fourteen-year-old Bayless, who The Anesthesia, of general anesthesia.” particularly accounts does seem to be off, does, course, when it there wears and outspoken, did not reason undoubtedly one pain is associated when his Although pre-print- doubt doctor. procedure. an invasive undergoes such discharge paperwork ed on his stat- words testimony from There was uncontroverted if physician ed that should contact his he undergoing of Michael that he was fearful “returned,” his condition “worsened” or his him operation, аnesthesia made directly pain him physician told had vomit, somebody like hip his felt persist long for period would a of time. him a knife in stabbed and twisted Yet, parents this minor child and his were bone, and that his wrist felt like someone contributory negligent found to be for top By car” of it. “parked had a second-guess his treating their failure rationale, any majority’s pain associated im- physician sooner. As result of the long surgery negligible with invasive is so proper diagnosis, Michael had an untreat- preformed under surgery as is itself period. ed wrist fracture for a two-month (which general practice anesthesia is played baseball with a fractured wrist He day age). this and sprain, icing that he believed to be a taking and medi- down over-the-counter majority ignores the fact The also However, pain. he cation alleviate delay misdiagnosis resultеd ultimately for punished “playing treatment, turn of which in caused Michael through pain.” pain suffering for an addi- to endure and for affirming zero verdict Mi- Although period. tional two-month majority pain and fails to suffering, about may not have been vocal chael adequately key points several address wrist, defi- a fractured and pain, had necessarily ex- which indicate that Michael it. as result of experienced pain nitely suffering as a perienced pain more and an played certainly He would not have improper diagnosis of than he result postponed season and entire baseball properly had been would have his wrist known two months if he had treatment for place. in the diagnosed as fracture first onset, regardless from the of the fracture the fracture First, of or not he knew of considering Wyrick’s testi- whether of his significаnt at the end season. mony that there no difference long is, course, Pain and suffering are way jurors There no for recognized by jurisprudence. our “feel of a pain” plaintiff, Howev- and as a er, result, pain this case an “evidence” of such illustrates unfairness that is reduced may to factors such as how much an arise in calculating damages. these individual complains pain, nature, or the kind of By pain physical its suffering and is a sub- performs. activities individual jective addition, experience. pain and Michael, quietly Plaintiffs like who endure suffering abstract, real, is an impair- albeit pain activities, persist with their are ment. award pain and damages, punished a result. I as believe that a form then, seeks to measure abstract harm. this scheduling for noneconomic damages It requires jurors to the inherently assess suffering such pain will result subjeсtive another, pain suffering greater predictability and fairness and then determine the economic value of e.g., Bovbjerg, supra. awards. See this harm. noneconomic Pain clearly suffering estab- It is difficult an individual to mea- ease, thus, I lished find the “zero” sure pain, one’s own pain let alone the verdict to be erroneous. Yet, jurors required another. are to mea- sure with a another dollar LAMBERT, C.J., joins this dissent. amount without clear guidance from the Instead, guidance court. comes from the
attorneys pres- who broad latitude to
ent of pain suffering, and and
suggest how these damages should be cal- al.,
culated. Randall Bovbjerg See R. et.
Valuing and Limb in Tort: Schedul- Life
ing Suffering, Pain and U.L. Rev. Nw. Jr., KUBAJAK, Appellant Charles A. (1989). 908, 913-16 result, As a pain and suffering awards LEXINGTON-FAYETTE URBAN unpredictable are and varied. Although GOVERNMENT; COUNTY Hon. jurors should have to weigh discretion Roger Riggs, D. Administrative Law case, particular empirical facts of a evi- Judge; Compensation and Workers’ significant dence reveals inconsistencies in Board, Appellees. suffering Bovbjerg, аwards. su- No. 2003-SC-0974-WC.
pra, at 917 (analyzing the variance of jury findings in Florida and Kan- Supreme Kentucky. Court of City sas from many 1973-1987). As schol- Dec. noted, ars have this variance and lack of juror predictability awards runs con-
trary to rationality stability that is
a hallmark of the rule of See law. Paul V.
Niemeyer, Atoarás Pain Suffer-
ing: Centerpiece The Irrational Our System,
Tort 90 Va. L. Rev. 1401 (2004); Jr.,
Joseph King, H. Pain Suffering, Damages,
Noneconomic and the Goals of Law,
Tort 57 Smu L. Rev. 163 (2004). claims to have it not notes Wyrick’s con- free to disregard testimony point, evi tradicted on this uncontroverted dence of nature of the expressly accident itself since observed Michael and the procedures performed.” medical all” on one pain “denie[d] at occasion point Id. at 441. would first “having pain” We out that and was no on another. Second, because Hazelwood is a case claimed although from Michael Court of Appeals, binding following surgery prevent- on this his arm Court. But the facts in hand during Hazelwood are ed the normal use of this activities, markedly day-to-day also different from admitted the facts under
Notes
he did that notes (1) perform failures to the “Anatomi leged during included the com- the examination during cal Snuff-Box Test” Michael’s him pain,” to indicating ment “no wrist (2) examination, emergency diag to room likely that the test performed it was he through nose Michael’s broken wrist exam thoroughly he would have exam- because (3) x-ray, provide ination of the to ined of the bones in the wrist before each adequate discharge upon Mi instructions Further, Mi- such an observation. making chael’s release. Boyer palpat- chael that Dr. had admitted outset, At the would note we wrist, time ed areas of his each different role reviewing that our as a court is limit asking experienced any him if he acute ed: pain. appellate The role of the court when Boyer x-rays, As the Dr. testified for deciding negligence issues of this sort is physical that examination re- because to viewing limited evidence from a wrist, pain in vealed no acute standpoint prevail- most favorable to the would have or- did not believe that he ing party. negligence In such cases dered, examined, x-rays much less of jury this one the verdict of resolves joint. Although Appellants contend any testimony conflicts and also x-rays, he did in fact examine the such in the conflicts reasonable infer- not in- testimony does bar an inconclusive testimony ences to drawn from be other by in favor ference prevailing party.... favor of the Furthermore, jury may party. short, an appellate court must sub- Boyer a concluded that failure Dr. findings its stitute fact those of interpret x-rays was not properly support if there is evidence to causing injury substantial factor further them. to Dr. subse- to Michael due Eiseman’s Co., Light, Power Horton Union Heat & had Mi- quent admission that he misread (internal (Ky.1985) 690 S.W.2d x-ray. chael’s omitted). As above in our citations stated verdict, argue Boy- Dr. appellate Finally, Appellants zero discussion discharge instructions to Michael were ruling review of trial court on motion er’s subject brought pursuant inappropriate. Although there was some CR 59.01 standard, in- clearly disputed regarding and re- the verbal erroneous Boyer, dis- great given by to the trial Dr. quires deal deference structions charge form indicated that stipulation Michael man’s that his treatment fell physician should call his return or to the below the standard care with an admis- emergency room if his condition worsened injuries. sion that he is liable for Michael’s Because returned. Michael received so doing, ignore the possibility that notice, it such reasonable a party might admit to a deviation from Boyer’s conclude instructions the standard care but still avoid were sufficient. for an injury because the determines