*1 NAZAR, al., Gregory M.D., B. et
Appellants/Cross-Appellees, BRANHAM, Executrix of the
Sheila Branham, Appel
Estate of Roe
lee/Cross-Appellant. 2004-SC-001015-DG,
Nos.
2005-SC-000834-DG.
Supreme of Kentucky.
April 2009. Rehearing
As Modified on Denial of
Aug. *2 Toner, Patrick R. James Groh-
Gerald Palmer, mann, Cathleen Charters Toner, PLLC, O’Bryan, Brown & Louis- ville, KY, Appellants/Cross- scalp Counsel for complica- without further Appellees. $11,900.00 tions. Branham incurred expenses medical result of the sur- Burke, Wesley Crosby Kevin Thomas gery. *3 Louisville, Faulkner, KY, Ap- Counsel for pellee/Cross-Appellant. surgery, After his second Branham filed Sigler,
James Allen Jonathan D. Pitch- Court, suit in naming Jefferson Circuit Dr. ford, Jr., Coltharp, James Richard Whit- Nazar, practice, Dr. Nazar’s medical Roberts, low, Straub, PLLC, Houston & Norton as alleged Defendants. Branham Paducah, KY, Curiae, Counsel for Amicus that the Defendants had committed medi- Society of Kentucky Interventional Pain cal malpractice by failing to remove the Physicians. scalp Durahook from his surgery. alleged He further that both Dr. Nazar Hume, R.
Bradley Beth Hendrickson and Norton were vicariously liable for the McMasters, Thompson & Simpson, Miller nursing staffs failure to PLC, Louisville, KY, remove the Dura- for Amicus Counsel scalp. hook from his Curiae, Following discovery, Kentucky Chapter The of Ameri- against Branham settled his claims Norton Surgeons. can College and the trial court entered an agreed or- Opinion by Special of the Court Justice them, der dismissing while preserving JEFFREY C. MANDO. against Branham’s claims Dr. Nazar. appeal This a is an from defense verdict Shortly settlement, after this Branham in a malpractice medical action. Appel- summary judgment moved for against Dr. lee/Cross-Appellant, Sheila Branham as Nazar, arguing that he was negligent as a Executrix of the of Roe Estate Branham having matter of law for left the hook in alleges Ap- [hereinafter that “Branham”] scalp during his In surgery. the alterna- pellant/Cross-Appellee, B. Gregory Dr. tive, Branham that Dr. argued Nazar was Nazar “Dr. commit- [hereinafter Nazar”] vicariously liable failure of the malpractice by ted medical re- failing to staff nursing op- to remove the hook. object scalp move an from Roe Branham’s motion, posing pre- Branham’s Dr. Nazar surgery. following alleged profession- experts: sented affidavits from two Harold al negligence occurred at Norton Audubon M.D., Smith, neurosurgeon, a and Susan Hospital on Febru- [hereinafter “Norton”] Howe, R.N., a surgical nurse. wit- Both 27, ary during an a operation which Nazar nesses stated Dr. had satisfied malignant tumor was removed from Bran- care, the applicable standard of even ham’s brain. The a surgery largely was though the Durahook remained in Bran- success, nearly percent 95-100 scalp ham’s a following As re- having tumor been Following extracted. sult, trial court denied Branham’s dis- however, surgery, complained positive motion. head, pain in initially his which was dis- trial, aspect missed as an attendant At Dr. his sur- Nazar testified that he gery. pain continued placed scalp When for several the hooks in Branham’s sought weeks Branham at- them. supposed further medical was to remove Durahook, stated, however, tention. Tests a revealed that also that he did count small, object metallic used to hold himself it general soft hooks because was apart during tissues for the operation, practice was left to do so. scalp. August On Nazar further testified he had no surgically any Durahook was from Dura- removed reason to assume that safety injectables,” but not pins, scalp. tips, vie left in Branham’s been
hooks had testified, Ball further patient’s scalp Durahooks. Ms. placed in the are Durahooks that if had counted items band under the she with rubber and fastened missing, she comes one fastening If the discovered operating table. so loose, tis- notified Dr. Nazar promptly slide under the can would Durahooks during surgery. staff could search and become concealed that he and sue operat- over the located. placed missing a towel item until was Because for the area, if a unable to see ing evi- Following the of this presentation Further- became unfastened. Durahook dence, parties’ trial denied the more, that the Dura- Dr. Nazar believed *4 verdict. motions for directed respective in the nurses’ were included hooks the refused to instruct The trial court also count, at the end of Bran- “sharps” liability theo- Branham’s vicarious jury on nurses’ upon he relied the surgery, ham’s jury then de- ry Dr. Nazar. against sharps all had been assurance that of the in favor of and returned verdict liberated removed. Nazar, finding that he had not breach- Dr. Howe, expert witness Susan Nurse ed the standard of care. Nazar, was Dr. testified that it called reluc Appeals appeal, On the Court not duty, and the sur- the staffs reversed the trial court’s denial tantly “sharps” ensure that all were geon’s, to summary judgment. motion for Branham’s In opin- after her surgery. accounted for Nazar, No.2003-CA- See Branham v. ion, the nurses should have counted (Oc 001110-MR, *2 WL they the fact that sharps despite hooks as 2004). An en banc Court tober explicitly
were
mentioned Norton’s
not
that
Laws
concluded
under
Appeals
hospital
also testified that
protocol. Howe
Harter,
(Ky.1975), Dr. Na
practices which
she
of no customs or
knew
a matter
law for
negligent
zar was
as
required surgeons
sharps during
count
in Branham’s
having left
Durahook
Thus, Howe
surgery.
or after
concluded
such, summary judgment
As
should
scalp.
reasonably
that
Nazar
relied on the
Dr.
Dr.
liabili
granted
been
as to
Nazar’s
have
to count the
nurses and scrub technician
ty
only have addressed
and the
surgery.
Durahooks
at 16-17.
damages.
Id.
expert,
Dr. Nazar’s
Dr. Harold
second
filed a mo
opinion,
this
Nazar
From
Smith,
the nurses should
testified
review,
discretionary
asking
tion for
as
be-
sharps
the Durahooks
counted
in his
verdict
Court to reinstate
duty of
typically
cause it
the nurs-
was
for
Branham filed a cross-motion
favor.
ing
sharps after sur-
staff to account for
liabil
discretionary review on the vicarious
Smith, therefore, opined that
gery. Dr.
ity
granted both
issue. We
motions.
responsible
counting
was not
Liability
A. Dr. Nazar’s Individual
relying
sharps
justified
and was
conduct the count.
deci
Appeals’
In defense
the Court
sion,
Laws v.
surgical
argues
Ball
under
Nurse Anna
technician
Harter,
(Ky.1975),Dr. Na
Daniels,
534 S.W.2d
Meshon
who assisted
law for
negligent as a matter of
surgery,
did -ar was
during testified
to remain in his
hospital
permitting
Durahook
policy
not
the hooks because
count
Laws,
surgical
In
protocol
scalp
did
it.
listed
require
Norton’s
plaintiff following
was left in the
specified
sponge
were
several
items which
“needles, blades,
surgery
by the defen
performed
bo-
thoracic
including:
“sharps,”
Meade,
surgeon.
Id. at 450. Before
605 Brand, Hilen, 339, (1909); fallacy.” Adm’r v. ancient 673 342 Barnett's S.W.2d 461, (1915); 616, noted, 464 Justice Ky. 165 177 S.W. As Leibson “[t]he common 84, Hospital, Ky. 128 is stagnant pool, v. Harlan law not a a moving Carter (1939). 174, Unfortunately, City stream.” (citing S.W.2d Id. Louisville v. Chapman, Ky., 74, (1967)). in made Laws no effort to distin- 413 S.W.2d Court rules, guish these decisions or to one When announced in Laws, line significance contrary prece- prove of this unworkable or inconsistent law, Further, legal dent. the court cited no with other it duty is the of this Court any ju- authority, Kentucky clarify from or other law common and direct its risdiction, se The support per development. its rule. the negligence per Because analysis authority lack se rule supporting announced in Laws is inconsistent ipsa does in with the loquitur Laws little instill confidence res approach we approach. adopt today, wisdom of its is now overruled. reception by lukewarm Laws rejected Because we have per subsequent Kentucky courts further un foreign cases, se rule in retained object our faith se negligence per dermines trial refusing court was correct in to hold Laws, years rule. Just two aas matter of law for loquitur res ipsa Court noted that a stan failing to remove the Durahook from Bran- apply surgi dard a where a case Branham, however, scalp. ham’s still ar in patient’s body cal was left dur blade gues that granted trial court should have ing kidney operation to remove a stone. summary judgment his motion for or his Hart, City See Somerset v. 549 S.W.2d motion for directed Summary verdict. (Ky.1977). This theme continued judgment only appropriate where the Chalothom, where the moving party establishes that there is no apply negligence per refused to se rule genuine issue material fact warranting distinguished its Latvs on facts. See R. jury. Ky. resolution P. Civ. process 56.03; at 393. Even in the see also Steelvest Inc. v. Seansteel Center, Inc., se applying negligence per rule in the Service 807 S.W.2d *7 482 case, present ex (Ky.1991). the Court of Similarly, motions for directed pressed of disapproval argued Laws and if appropriate moving party verdict are Nazar, hasty for demise. v. its Branham can establish that based on the evidence such, trial, No.2003-CA-001110-MR. As to presented at reasonable minds could promote a negligence per se rule now not differ on the proper resolution of the require 50.01; to adopt Ky. would us a rule that has case. See R. P. Spivey Civ. Sheeler, 667, never Kentucky (Ky.1974). been well-received 514 673 S.W.2d Instead, courts. we reaffirm the require, caselaw Both standards the re surgeon’s which leaves the of a to in viewing issue liabil construe the facts favor ity jury ipsa adopt non-moving res party. loquitur Kentucky for approach retained adequate Dr. Nazar presented evi
foreign object cases. both during dence before and trial which of adoption ipsa loqui-
Our the res created fact to issues sufficient defeat trial, tur standard renders the continued viabili Branham’s motions. Before Dr. Na- ty questionable. of Though expert stating Laws stare zar submitted affidavits care, inspires humility complied decisis in Court both he with the standard of precedent, despite for it respect established the failure to the Durahook remove trial, to pre- “does not commit us the sanctification At contradictory conflicting, question that it was or who testified expert one sented fact, questions like rely agency, for other practice doctors common However, by jury. where sharps for all used dur- be determined to account nurses expert [regarding parties’ who the facts relation and another testi- ing surgery ship] undisputed, question obli- are becomes it was staffs fied that for though even one law the court.” Scott to count Durahooks gation Wolford Co., (Ky. not Bus specifically listed Nickels S.W.2d these items were 1953). Here, though argued to the trial Even protocol. the Norton court that Dr. Nazar’s admissions that he of the Durahook Branham’s presence prima supervised charge the nurses and scalp facie evidence constituted testimony placement and removal the Dura- negligence, expert created he regarding Dr. lia- hooks demonstrated that was control question of fact Nazar’s bility injuries. Accordingly, they agents. of the nurses and were his for denying Disagreeing proved not err in Bran- that those admissions the trial court did summary agency relationship, Dr. contend judgment ham’s motions for manual, hospital’s verdict. ed that which di directed steps rects nurses to follow certain when Liability B. Nazar’s Vicarious surgeons, his assisting reliance on nurses to count the sharps showed that Having jury determined that Thus, agents. not par were his to resolve the correctly allowed issue dispute surrounding ties not the facts did liability, individual we must Nazar’s relationship— Dr. Nazar’s and the nurses’ now whether the determine that Dr. Nazar relied on the nurses permitted his been address vicari sharps they simply disagreed count the liability. The trial court twice rejected ous — whether or these facts established Branham’s contentions Dr. Nazar is Therefore, agency relationship. be vicariously liable conduct Nor surrounding parties’ cause the facts operation. ton’s his case, relationship undisputed were in this First, the court denied his motion for sum question an agency of whether rela mary judgment based on the doctrine of tionship existed between Dr. Nazar and respondeat superior, and second the court the nurses was a of law for the theory refused to instruct the on that Transportation, trial court. See CSX Inc. at the close of evidence. Branham v. Na Grayson, v. First Bank National zar, No.2003-CA-001110-MR. Because (“[a]s (Ky.App.1999) *8 ruled a that was liable as matter the surrounding relationship facts between law, of the of did not ad undisputed, and CTI are the CSXT trial majority dress this issue its opinion. properly made the of determination however, appeal, On his Branham renews agency the issue of rather than to submit claim that Dr. Nazar should be held vicari the jury”). ously liable for the failure of the staff to fulfill their duties the to remove A principal may be held vicari from his scalp. Durahook ously for the of liable acts his or agent,
To hold lia her held vicariously generally but is not liable the nursing negligence, independent ble for staffs for the conduct of an contrac Educ., Branham must Kentucky Dept. establish that nurses tor. Williams of 145, agents. (Ky.2003). were Dr. Nazar’s 113 151 An “Where S.W.3d indi dispute princi facts are in of if the agent and the evidence vidual is another
607 responsibility operation has the or con was in pal power pursuit of the health method, manner, patient, and of the of the trol details which was the goal end of agent’s City hospital, work. See Winchester both the doctor and the there was of If, King, (Ky.1954). 266 S.W.2d no conflict which terminated or suspended free agency an individual is to determine relationship nurses’ with the Therefore, principal hospital. how work is done and the cares the Court concluded result, only about the end then that indi that the nurses the agents remained of the independent an hospital vidual is contractor. See if they surgeon’s even were the Cull, (Ky. Pancake v. agents S.W.2d for the same Id. at act.
1960).
suggests
Branham
City
that
Somerset,
Relying
City
supra,
upon
requires
Somerset
the conclusion that a
that
dual
argues
nurses are the
surgeon
a hospital
and
principals
are dual
hospital
surgeon
and
agents
the nursing
staff which
the sur
assists
during
surgery. Like
facts in the
geon
an
during
operation. The decision
case,
plaintiff
Som-
present
City of
cannot be
to compel
read
such an outcome.
erset was a
had
patient who
the unfortu-
Somerset,
City
the court held that
experience
having
nate
item
where there
support
are facts sufficient to
body
during
operation.
left
his
a dual agency
relationship,
surgical nurs
case,
the present
S.W.2d at 816. Unlike
ing staff
bemay
agents
the dual
of both a
however, the
doetor
defendant
settled be-
surgeon
hospital.
and a
See 549 S.W.2d at
trial,
leaving only
hospital
fore
and
City
816-17.
displace
Somerset did not
nursing staff as defendants.
Id. Because
inquiry required
traditional
for all
the operating
was “authorized to
determinations,
agency
instead was
supervise
direct
staff in
oper-
upon
founded
it: agency relationships are
ating room[,]” it was assumed
that
created
party
when one
has
authority
Thus,
agents.
nurses were his
Id. at 816.
to control the details of
work.
another’s
the hospital
against liability by
defended
Winchester,
345;
266 S.W.2d at
Pan
arguing that the nurses could not
be
cake,
was,
at
392. Branham
agents
hospital
during
surgery
therefore, required
present
evidence
they
because
were
agents
the doctor’s
the facts
sup
and circumstances which
the time.
ported
theory
his
agency
relation
ship existed
between
Nazar and the
This Court rejected
hospital’s
nursing staff.
argument
held
though
the nurses
above,
were the “borrowed servants” of the sur
As stated
the trial court should
geon
operation,
granted
remained
Branham’s motion
sum-
agents
the hospital.
mary
The Court
judgment only
appeared
if it
law,
noted that under traditional agency
genuine
there was no
issue material fact
determinative,
the issue of
regarding
control is
liability
Dr. Nazar’s vicarious
trained,
since the nurses
paid,
were
and that
judg-
Branham was entitled to
*9
employed by
their
hospital
agency
Steelvest, Inc.,
the
sta ment as a matter of law.
Somerset,
City
standard,
tus was clear.
549
Due to issue. liability Branham’s vicarious
supporting correctly court likewise theory, the trial D. CONCLUSION jury. refused submit issue above, we For the reasons mentioned have their “A is entitled to party plaintiff judgment of the Court REVERSE if theory of submitted to the case Judgment and reinstate it.” Clark any there is evidence sustain Hqauck Co., trial court in favor of Nazar. Mfg. S.W.2d courts, however, have (Ky.1995). Trial deny requested authority instructions CUNNINGHAM, ABRAMSON, only to do will be and their decision so NOBLE, SCOTT, VENTERS, JJ.; an abuse discretion.
reversed for Special Justice JEFFREY C. Wilkey, Inc. v. Olfice A. Special Justice WALTER MANDO and (Ky.2005). BAKER, sitting. that he “su- Though Nazar testified JJ., SCOTT, ABRAMSON and placed staff and
pervised” the BAKER, Justice WALTER A. Durahooks, presented Special no other *10 concur. tending support agency to his evidence
609 VENTERS, in part ship J. and exists. Nazar concurs Id. admitted part in by separate opinion dissents in he the responsible for removal of JJ„ NOBLE, which and CUNNINGHAM all of the Durahooks used. He testified joins. the surgical staff nursing was under supervision his the during surgery. He MINTON, C.J.; SCHRODER, J, and depended upon them count the to Dura- not sitting. hooks as he removed them. The purpose counting for Durahooks to enable VENTERS, Justice, concurring in part he to ascertain proper- had dissenting part: and ly duty fulfilled his all to remove of them. I reasoning concur with and the sound that, It is the supervisor inconceivable as scholarly analysis expressed by Special during surgery, of nurses Dr. Na- rejection negli- Justice Mando in our zar did have the right control their Harter, gence per se rule of Laws v. thp counting Court, “sharps”. The (Ky.1975), adoption S.W.2d 449 of the Hart, stated: ipsa loquitor res neg- to medical approach It beyond is in this case cavil that the
ligence surgical objects issues from arising accurate accounting scalpel for blades is But, in patient. left I must respectfully “of surgeon mutual interest to both” the opinion majority dissent from the with re- and the hospital, accounting that such spect to the issue of Dr. Nazar’s vicarious i.e., “effects their liability purpose”, common for the failure of the accurately patient, staff to count the Dura- cure that the hooks patient’s removed from his scalp. operating issued no orders to staff accounting regard scalpel Majority The concedes that the dual blades which conflicted those of the agency City doctrine of Somerset v. Hospital. Consequently, the operating Hart, (Ky.1977) 549 S.W.2d is alive room staff acted as servants both the and well. But despite the substantial simi- surgeon and as a hospital matter of larity in the facts of Hart and instant law. case, the Majority concludes that Branham produce failed to sufficient evidence of an Id. at 817. agency relationship between In its conclusion that evidence was surgical nursing and the staff to justify insufficient, a jury even to warrant instruc- jury. submission The issue tion, Majority observes that the nurses of an agency relationship existence ais “made no Nazar’s mention orders
legal only conclusion to reached be operation” that Branham analyzing Wright facts. relevant no cited that Dr. Nazar evidence ordered Co., Payne Sullivan 839 S.W.2d or instructed the how to (Ky.1992). Where facts in dispute are operation. him during assist Those contradictory and the evidence is or con- simply facts he may indicate that flicting, agency is one of supervision been deficient in his jury. fact be determined nurses, way negate in no his role Transportation, CSX Inc. First Nation- supervisor as their their role his Bank Grayson, al I agents during would sub- (Ky.App.1999). right to control mit that Dr. considered critical element Nazar’s admissions resolve most determining agency whether relation- that issue in as a matter favor Branham *11 minimum, the matter law, jury. submitted have been NOBLE, JJ., join.
CUNNINGHAM SANDERSON, Appellant, Paul
David Kentucky,
COMMONWEALTH
Appellee.
No. 2007-SC-000537-MR. Kentucky.
Supreme
May Rehearing on Denial of
As Modified
1,Oct. 2009.