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Bruce v. Marshall County Public Hospital District Corporation2/7/2003
NOT TO BE PUBLISHED
OPINION REVERSING AND REMANDING
Dolores M. Bruce, Administratrix of the Estate of Nicole M. Bruce, deceased, and Dolores M. Bruce, Individually, (hereinafter "Bruce") have appealed from the Marshall Circuit Court's January 31, 2002, Summary Judgment in favor of Marshall County Public Hospital District Corporation (hereinafter "MCH"). This appeal arose from a medical malpractice action brought as a result of the death of ten-year old Nicole Bruce (hereinafter "Nicole"). Having determined that there is a genuine issue of material fact to be decided by the jury and that summary judgment was inappropriate, we reverse and remand.
We will briefly outline the facts as they relate to the underlying matter. Nicole began experiencing episodes of vomiting and headaches in August 1998. Her mother, Bruce, sought treatment for Nicole's problems from Dr. John Tveite, a family practice specialist at the Marshall County Family Medical Center. She also received treatment from nurse practitioner, Misha Glendening, at the same location. Nicole underwent various diagnostic procedures, including an upper GI andaCT scan of the head. Nicole underwent the CT scan at Marshall County Hospital on November 17, 1998. Prior to the scan, Bruce signed a Marshall County Hospital form entitled "Consent to Admission, Examination and Treatment". In all Bruce, signed six of these forms when Nicole underwent outpatient diagnostic studies and when she was admitted to the hospital for treatment as an in-patient. Dr. William Wilson (hereinafter "Dr. Wilson"), a radiologist, interpreted the CT scan and determined that it was normal. He recommended consideration of an MRI with contrast if the persistent vomiting continued. Nicole was last admitted to the hospital on January 10, 1999, where she died on January 12, 1999. An autopsy revealed that she died as a result of a tumor in the fourth ventricle of her brain.
Bruce filed a civil suit in Marshall Circuit Court on January 11, 2000, alleging negligence in Nicole's care and treatment resulting in her death. The complaint named Dr. Tveite, Marshall County Medical Associates, PSC; Marshall County Family Medical Center, Inc.; Misha Glendening; Marshall County Hospital and Healthcare Foundation, Inc.; Dr. Wilson; and Radiology Associates of Murray, PLLC, as defendants. Over a year later, Bruce moved the circuit court to amend her complaint to name Marshall County Public Hospital Corporation, which owned and operated Marshall County Hospital, as an additional defendant. The circuit court allowed her to file the amended complaint in which she alleged both direct and ostensible agency negligence claims against MCH.
MCH moved for a summary judgment, arguing that Bruce had not identified any expert witness to establish that any MCH employees departed from the applicable standard of care and that Bruce could not rely upon an ostensible agency theory because of the language contained within the consent to treat form Bruce signed. Bruce responded to the motion, arguing that the language on the form did not provide her with sufficient notice. The circuit court allowed the parties to orally argue the motion and, on January 31, 2002, granted a summary judgment and dismissed the claims against MCH. This appeal followed.
On appeal, Bruce argues that the circuit erred in holding that MCH was not liable for the actions of radiologist Dr. Wilson. Citing Paintsville Hospital Company v. Rose, Ky., 683 S.W.2d 255 (1985), Bruce argues that she was entitled to assume that Dr. Wilson was an agent of MCH and that the consent to treat form, which she admits she did not read, nevertheless did not give her adequate notice that a physician not
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