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Lavender v. American Physicians Assurance Corp.12/3/2004
VACATING AND REMANDING
SUMMARY
On May 24, 1997, L. Michael Lavender, M.D., delivered Linda Justice's son by crash cesarean section. Once Dr. Lavender opened Linda Justice in the operating room, he discovered that her uterus had ruptured. Secondary to the uterine rupture, Linda Justice's baby, Joseph, suffered a severe brain injury , and Linda Justice had to have a hysterectomy. At the time of the delivery, Dr. Lavender and his practice group, OB/GYN Specialists of Northern Kentucky, Inc. (OB/GYN), were insured by the P.I.E. Mutual Insurance Company (P.I.E.). But P.I.E. went out of business in the fall of 1997, and the doctors in the practice were left to find another insurance carrier. When completing his insurance application to the predecessor in interest of American Physicians Assurance Corporation (APAC), Dr. Lavender answered "No" to the following question: "Have any incidents occurred in your practice (treatment results less than anticipated, complications that prolonged treatment/ hospitalization, patient expressions of dissatisfaction, fee disputes, etc.), that, from your knowledge of the patient's situation, have any realistic potential of developing into a formal claim against you?" After being notified that Linda Justice filed a medical negligence action against Dr. Lavender, APAC filed a declaratory judgment action in which it contended that Dr. Lavender's answer to this question was a misrepresentation entitling it to rescind coverage. The trial court agreed with APAC and granted its motion for summary judgment. At issue in this appeal is whether genuine issues of material fact precluded summary judgment. Because we believe that they do, we vacate and remand for a jury trial.
LINDA JUSTICE'S LABOR AND DELIVERY
Linda Justice is the mother of three children. Her first two children were born by cesarean section. But she desired to have her third child, Joseph (Joey), by vaginal delivery. There are certain risks involved in having a vaginal birth after cesarean section (VBAC), one of which is a uterine rupture.
Linda Justice's due date with Joseph was in late-May of 1997. She sought prenatal medical care at OB/GYN. After discussing the risks of a VBAC with her, the doctors at OB/GYN eventually agreed to let her be a VBAC candidate.
Dr. Lavender was the group physician on call when Linda Justice went into labor on May 24, 1997. He allowed Linda Justice to proceed with the trial of labor, as she desired to do. But when Linda Justice complained of break-through abdominal pain after having been administered an epidural and fetal monitoring indicated the baby was in severe distress, Dr. Lavender attempted a vaginal delivery using forceps. But he could not deliver the baby that way, so he performed a crash cesarean section.
When Dr. Lavender opened Linda Justice in the operating room, he discovered that her uterus had ruptured. She had to have a hysterectomy and required blood transfusions.
Joey was blue and limp. His APGAR scores -- an indication of a baby's condition immediately after birth, a score of 7-10 considered normal and a score of 3 and below requiring advanced medical care and emergency measures --- were 1 at one minute, 3 at five minutes and 5 at 10 minutes. Joey's prognosis for months after his birth was "guarded."
In the early hours after Joey's birth, Linda Justice's sister, who used to work as a nurse in obstetrics and gynecology, asked Dr. Lavender if he used an internal uterine pressure catheter (IUPC) on Linda during her labor. The IUPC is an internal device that is most valuable if external monitors are not picking up contractions. Dr. Lavender replied that he did
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