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Thompson v. Dreszer12/3/2004
AFFIRMING
Three issues are presented in this appeal from a judgment based upon a jury verdict in a medical malpractice action: (1) whether appellants were entitled to a directed verdict; (2) whether it was a violation of CR 43.09 to allow appellees' experts to read the rebuttal testimony of one of appellants' experts prior to giving their testimony at trial; and (3) whether appellants were entitled to a default judgment against appellee Brenda Osborne, M.D. Finding no error in any of the arguments asserted, we affirm the judgment of the Jefferson Circuit Court.
The facts precipitating this appeal stem from the tragic death of a nine-month-old infant from bacterial meningitis. Appellants' negligence action against appellees was predicated upon the theory that the medical treatment rendered the infant child in the days leading up to his death fell below the prevailing standard of care. On July 19, 2000, appellant Nikita Thompson received a call from the daycare for her child Dalus Gaines, Jr. The daycare staff informed her that Dalus had a temperature of 102 degrees and that she needed to pick him up. Ms. Thompson took the child that afternoon to be seen by his regular pediatricians, Pediatric and Neonatal Specialists. Appellee Dr. Moises Dreszer examined the child. Dr. Dreszer testified at trial that the examination revealed nothing unusual in that Dalus had no temperature at that time and appeared to be acting normally. Dr. Dreszer stated that he specifically looked for "meningeal signs" but found none, and based on the history of temperature at the daycare, diagnosed Dalus with a viral syndrome which he recommended treating symptomatically. Ms. Thompson acknowledged that she was instructed to call the pediatricians' office if the child's condition worsened or if his temperature could not be controlled. Appellants maintain that Dr. Dreszer's failure to do blood or lab work in an effort to identify the source of Dalus's earlier fever breached recognized standards of medical care.
According to Ms. Thompson's testimony, the second instance of substandard treatment occurred at approximately 6:00 p.m. on the next day, when after her return home from work, Dalus's temperature was again elevated. Ms. Thompson then called PNS and spoke with a certified medical assistant trained for after-hours triage. The notes made by the technician indicated Ms. Thompson stated that Dalus's temperature was 103.4 degrees and that he had been seen at the office the previous day. Although Ms. Thompson testified at trial that she told the technician that Dalus had been vomiting, there is no mention of vomiting in the phone record. The notes concerning the conversation do indicate, however, that the child's mother stated that he was "acting fine" and had no symptoms other than the temperature. Appellants maintain that a properly trained person using appropriate telephone triage protocol would have sent the child to the emergency room at that point.
Appellants allege a third instance of substandard treatment occurred shortly after midnight when Ms. Thompson placed a second call to PNS. That call was routed to a pediatric nurse who handled Kosair Hospital's after-hours triage system and who performed this function for PNS after midnight. Ms. Thompson informed the nurse that Dalus had vomited and that he still had a fever. She stated that as directed by PNS she had been alternating Tylenol and Motrin and had given him Pedialyte. Ms. Thompson testified that she asked the nurse for a referral to take the child to the emergency room, but the nurse told her that it sounded like he had a virus and that she should take him to be seen by his doctor in the morning. The pediatric nurse testified tha
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