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Riddle v. Owensboro Mercy Health System2/21/2003
NOT TO BE PUBLISHED
OPINION VACATING AND REMANDING
This is an appeal from an order dismissing a medical malpractice claim pursuant to CR 41.02(1) for failure to timely prosecute the action. Because the trial court failed to consider the factors set out in Ward v. Housman, Ky. App., 809 S.W.2d 717 (1991), in ruling on the motion to dismiss under CR 41.02(1), we vacate the order and remand for the court to reconsider the motion in light of the factors in Ward.
On October 28, 1997, appellant, Susan Riddle, filed the action herein on behalf of herself and her son alleging medical malpractice as a result of the defendants' failure to properly treat her for chicken pox while she was pregnant. The action was filed against: Owensboro Mercy Health System ("OMHS"), the hospital where she sought treatment; Emergency Physicians Group; Dr. Randall E. King; Dr. Victor Dunn; Green River District Health Department ("Green River"), a local health department from which Riddle also sought treatment; Dr. Laura Hazeltine, a physician at Green River; and Dr. Ronald Johnson, her family physician. In her complaint, Susan alleges that on October 31, 1996, when she was 25 weeks pregnant, she went to the emergency room at OMHS, operated by Emergency Physicians Health Group, and was diagnosed by Dr. Dunn as having chicken pox. According to Riddle, Dr. Dunn conferred with Dr. Randall King and they decided to send her home without any testing or medication. On November 2, 1996, Riddle again sought treatment at the emergency room at OMHS for her chicken pox which had worsened to the point where she had difficulty breathing and a high fever. At this time, Riddle was diagnosed as having varicella pneumonitis, a type of pneumonia associated with the chicken pox. Riddle was then transported to Norton Hospital in Louisville, where she received intense treatment for the pneumonia and where her son, Logan, was born prematurely at 29 weeks' gestation. Riddle maintains that the doctors at OMHS negligently failed to treat her on October 31, 1996, for chicken pox, and, as a result, she suffers from permanent respiratory problems as well as severe depression, and Logan suffers from various physical and developmental problems related to his mother's condition when he was in utero and his premature birth. Her claim against Dr. Hazeltine stemmed from her alleged failure to treat Riddle for the chicken pox. Likewise, Riddle claimed that Dr. Ronald Johnson negligently failed to treat her for chicken pox when she called seeking treatment therefor.
Without giving a detailed procedural chronology of the case, suffice to say that in the course of litigating the case, Riddle violated various discovery orders, resulting in the entry of six orders compelling discovery. Examples of such conduct were Riddle's failure to answer interrogatories, supplement discovery responses, produce documents, list expert witnesses, and make witnesses available for deposition. Moreover, from October of 1999 until October of 2001, Riddle filed nothing in the record in the case. It was not until after the defendants filed their motion to dismiss pursuant to CR 41.02(1) that Riddle filed her motion to vacate hearing on October 26, 2001, contending that they needed more time to have Logan evaluated to determine the extent of his injuries. Thereafter on November 29, 2001, Riddle filed a response to the motion to dismiss, citing Riddle's mental state and the inability to presently assess the extent of Logan's injury as reasons for the delay in the case. The response claimed that Logan was currently being evaluated to assess his developmental problems and cognitive limitations. Also attached to the motion was Susan Riddle's affidavit in which she
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