*1 C.J., STEPHENS, COMBS,
LAMBERT, LEIBSON, SPAIN and
WINTERSHEIMER, JJ., sitting.
All concur. BAYLIS, Appellant,
Elizabeth HOSPITAL, INC., William
LOURDES M.D.,
Wheeler, and Credit Bureau of Paducah, Inc., Appellees. Halicks, Paducah, appel- for Marianne lant.
No. 89-SC-974-DG. Schrock, McMurry W. Fletcher G. Kent Kentucky. Supreme Court Price, Smith, McMurry Living- & Kerry D. March 1991. ston, McCann, Paducah, A. for Douglas appellees.
LAMBERT, Justice. case,
In this issue medical plaintiff’s is whether causation defendants’ mo- sufficient withstand for At the close of tions directed verdict. chief, plaintiff’s defendants and their mo- moved for directed verdict Ap- The Court of tions were sustained. peals affirmed.
Appellant sought she suf anaphylactic shock as result of fered administering defendants’ contended that her the Keflex. She reflected aller records gic and that the time reaction to Keflex her, she prescribed for told the it was history that nurse her medical who took According penicillin she was 19, 1984, she appellant, on December complaining emergency room came to the little and with problems of stomach pre diagnosis, examination or going home After scribed the doctor. capsule, appellant collapsed one not, except extraordinary penicillin presented penicillin and 1. Evidence was circumstances, family antibiotic Keflex. are of the same Keflex drugs allergy to persons with a known and that
123 “necessity” that be shown as hospital requirement to the in a state and was returned Thomberry, in v. the case shock. Whittaker of 830, (1948). 209 498 This Ky. S.W.2d 306 plaintiffs in At the close of Wig- in adopted has the view found Court chief, the that an trial court determined more, Evidence, 1707 as follows: § proof had omit- essential element of been of a Guarantee “There is Circumstantial plaintiffs The trial held that ted. court Trustworthiness; are for the records witness, Boyarsky, had expert Dr. Saul life upon in affairs of made and relied opinion plaintiffs failed to state his that Moreover, day-to- death. amidst the in- by was caused reaction cases, hospital day of of details scores The court gestion of Keflex. said: ordinarily can physicians and nurses ballgame one all boils down to “[T]he memory few none recall from actual or thing, this and that is whether or not entered; specific they them- data hospitalization Keflex caused the rely upon of own selves the record their somebody got say in injury, and has to hence, action; call them to the stand to did, probability, parties it medical and the nothing or to ordinarily add little would right to to exami- have be cross information furnished the record that, says of that ei- nation that Commonwealth, v. alone.” See Buckler by deposition by having or him here ther 938. supra at in court.” therein, properly matters included court, Affirming Ap- to medical records are entitled the same peals Boyarsky held ex- that never produc- other dignity as forms of evidence opinion pressed degree his to a reasonable Thomberry, at trial. v. su- ed Whittaker probability of medical that pra. caused shock reaction. of Appeals plain- The Court concluded that long recognized has This Court expert merely reported tiffs the content hearsay evidence results admission hospital record on the element of causa- deprivation right to the fundamental tion. As confront and cross examine witnesses. issue, addressing dispositive
Prior to
such,
hearsay
have determined that
evi-
we
necessary
briefly
it is
discuss a miscon-
possess
have
must
characteristics or
dence
ception
appears
of law
con-
which
to have
sub-
been made under circumstances which
rulings.
In
tributed
erroneous
collo-
possibility
error.
stantially eliminate the
counsel,
quy
just
granting
Commonwealth,
with
Ky., 794
Barnes
verdict,
defendants’ motions for directed
(1990).
We have determined
S.W.2d
expressed
trial court
view that be-
satisfy
require-
that medical records
these
appellant’s
not
Therefore,
cause
medical record could
the trial court erred
ments.
examined,
admissibility
cross
its
be
nec-
that testimonial evidence was
its view
significance
or its
diminished2.
doubtful
support the medical record.
essary to
distinguishable
from our
It is
well settled
the medi
This cause
now
Transpor-
patient
record of
in a
v. J.B. Hunt
Young
cal
a
decision
tation, Inc., Ky.,
regular
under
781 S.W.2d
508-509
admissible
(1989),
hearsay
affirmed the trial
exception to the
which we
business entries
medi-
Commonwealth,
rejection
large
volume of
Ky., 541 court’s
rule. Buckler v.
after the
longer any
There is
records offered into evidence
S.W.2d 935
cal
said,
opinion
thing
my
They
it’s
medical
can’t cross
medi-
2. “THE COURT:
examine
people.
anaphalaxis
cross
cal records. You have to
examine
as the result
suffered
got
gets up
Keflex,
a doctor that
there
might
You’ve
have
ingesting
I don’t think ...
it
says
they
can cross examine him
so
changed
impeach
the doctor
he
admissible
telling
he’s
the truth about
and see whether
that,
you
something
can’t
like
but
his mind
as a doctor. You can’t cross
what he concludes
Otherwise, all these
that record.
cross examine
right
They've got a
examine medical records.
inquire
reports.
on medical
would be submitted
cases
diag-
making up
into
as to what went
depositions.”
to have
We wouldn’t even have
nosis,
says
even if it
flat out in
If
there.
directly
conclusion of the
but before de- Keflex was obvious.
Instead of
fendant had rested. We held that the trial
causation,
addressing
rejection
at the
court’s
of the records
time Boyarsky’s testimony
largely
ap-
dealt
prof-
and under the circumstances of their
*3
pellees’ negligence
prescribing
proper
fer amounted to a
exercise of discre-
patient
penicillin allergy
to a
with a known
tion.
Keflex,
appel-
and
and
reaction to
Despite
the trial court’s view
it was
adequately
appel-
lees’ failure to
assess
necessary
testimony, subject to
to have the
lant’s condition and review its own records.
examination,
physician
the
cross
of
who
examination,
findings
recorded his
on
beyond dispute
It is
that causation
ruling
basis for the
on the directed verdict
necessary
proof
any
element of
is a
appears
motions
the absence of testi-
be
Prosser,
negligence case. William L.
mony
probability
in terms of medical
Torts, 4th ed.
Handbook
the Law plaintiff’s allergic
Keflex caused
reaction.
(1971).
Ky., 370
Vaughn,
Johnson v.
accepted by
This view was
the Court of
(1963).
princi
accepted
591
It is an
S.W.2d
Court,
Appeals,
appellees argue
and in this
cases,
ple
that in most medical
Boyarsky merely reported
Dr.
the con-
proof
requires
testimony
of causation
adopt
of the
failed to
tent
record and
expert
the nature
of an
witness3 because
expressed
views
therein or state his own
jurors
inquiry
of the
is such that
are not
opinion as to causation.
competent
conclusions
to draw their own
Appellant’s testimony and the medical
from the evidence without
aid of such
day
ques-
record discloses that on the
Ky.,
expert testimony.
Harting,
Jarboe v.
tion,
by Dr.
who
she was seen
Wheeler
(1965);
775
Johnson
v.
397 S.W.2d
prescribed
con-
Keflex for her diverticulitis
supra.
evidence of causa
Vaughn,
While
taking
capsule,
dition. After
one Keflex
probability
rather
tion must be
terms
collapsed
hos-
she
and was returned to the
possibility,
have held that
than mere
we
arrival,
pital emergency
room.
she
prevail
should
over form
substance
pressure,
was found to have no blood
but
meaning,
than
that the total
rather
a word-
Epinephrine
was awake.
was administered
construction,
the focus
by-word
should be
signs
and her vital
returned. Dr. Roberts
Jones, Ky., 439
inquiry.
v.
Walden
diagnosed anaphalaxis with cardiovascular
(1968);
Hoffman, Ky.
571
Morris v.
S.W.2d
collapse, gastric
ulcer and
mitral
(1977). The standard of
App.,
When panel the probability. A unanimous he answered: Appeals Court of affirmed the decision allergic to and she “She was nev- judge. the trial got it. had in er have She been emergency that same room before with A indicates that review allergic an reaction to Keflex. There is ill in took Baylis became 1984 and an antibi- giving just no excuse for a the had over otic called “Keflex” which she left emergency her hospi- prescription same room the same from an from dentist. old allergic that her She suffered a reaction and went to tal same made before, it was determined danger emergency room where because there a al- A allergic to Keflex. probably she was killing it most her and almost did.” later, she the office of Dr. few weeks called Appellees argue fervently that this testi- concerning problems Wheeler her stomach mony only proper went standard of surgery and informed that he was was Boyarsky that care and Dr. did not offer an hospital go if she would but that independent opinion as to cause of the might emergency room he be able alleged injuries. While the answers emergen- her Upon see her. arrival at may entirely responsive not have been room, cy was examined and asked she questions questions asked and allergic any She she were medication. may inartfully themselves have been stat- penicillin, replied she was ed, above, Boyarsky in the Dr. emergency room which noted ingestion his of Keflex stated view Following consultation records. further appellant’s anaphylactic caused shock. given Phenergan. X-rays, and she was the record careful examination of Mylicon Ke- prescribed and Wheeler also case, regard in this and with due for the for her to call flex instructions and left above, unable principles outlined we are to him. accept appellees’ From the tes- contention. hospital, pre- her Baylis left the obtained timony given sur- and circumstances scriptions, home and took a dose of went rounding shock in anaphylactic the onset of had an immediate reaction Keflex. She reasonably a could have appellant, jury family back to and was taken her was a appellees’ negligence found diagnosed emergency where she was room proximate cause of the condition. anaphylactic with cardio- having shock as collapse. Baylis was treated for
Having determined that the court below vascular fairly quickly. Fol- responded trial affirming court’s directed shock and erred stay, final verdict, lowing three-day hospital judgment is reversed car- diagnosis “anaphylaxis shock with ulcer, collapse, gastric diovascular TYLER, Appellant, Robert James prolapse, history
mitral valve diverticulosis, hernia, hysterec- hiatus tomy.” hospital When her bill was riot COMMONWEALTH paid, it was turned over to the credit bu- Kentucky, Appellee. brought Baylis suit to collect. reau which No. 90-SC-471-MR. alleging filed this action and her husband were both the Wheeler Supreme Kentucky. Court of negligent. 14, 1991. March evidence, the At the conclusion of her judge directed a verdict in favor of the ground Baylis had defendants on part of her
not established an essential
claim, to-wit: of Keflex reaction for which
caused *5 seeking damages.
she is Appeals unanimously af-
The Court of
firmed, stating that causation and medical by expert
malpractice must be established ap- unless the is so layman general knowl-
parent that a recognizing
edge it. would have trouble panel that the medi- further observed
cal must establish that causation merely possible. Bay- and not trial, Boyarsky, lawyer
lis’ urologist,
and a never stat- board-certified
ed that reaction was the ingestion
result of the of Keflex. Appeals
It is clear
panel examined the evidence and unani- judge
mously agreed with the trial proving
Baylis’ burden of causation was It this Court not
not established. behooves judgment
to substitute its for that of reviewing judge. Certainly a court sufficiency right to consider the
has the majority here has ex-
the evidence but
ceeded its traditional limits. appellate
The role of an court review- a motion for
ing granting or denial of lim- verdict in a case is
directed viewing the evidence from a stand-
ited par- prevailing
point most favorable Light Heat Power
ty. Horton v. Union &
Co., Ky.,
I affirm the decision the Court would the circuit court. Appeals