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Gordon v. Kemper3/25/2005
TO BE PUBLISHED
OPINION AND ORDER
AFFIRMING IN PART REVERSING AND REMANDING IN PART APPEAL NO. 2002-CA-001983-MR AND DISMISSING CROSS-APPEAL NO. 2002-CA-002043-MR
This is an appeal from a Final Judgment entered by the Jefferson Circuit Court upon a jury verdict dismissing a medical malpractice action against Warren Kemper, M.D. Barry Gordon, individually and also as surviving spouse and personal representative of the estate of Lori Gordon, deceased, and Stuart Gordon, by and through his parent and next friend, Barry D. Gordon, and Samantha Gordon, by and through her parent and next friend, Barry D. Gordon (collectively referred to as appellants) bring Appeal No. 2002-CA-001983-MR from an April 3, 2002, Final Judgment of the Jefferson Circuit Court. Warren Kemper, M.D. brings Cross-Appeal No. 2002-CA-002043-MR from the April 3, 2002, Final Judgment of the Jefferson Circuit Court. We affirm in part and reverse and remand in part Appeal No. 2002-CA-001983-MR. We dismiss Cross-Appeal No. 2002-CA-002043-MR.
In early February 1996, Lori, then 38 years of age and otherwise in good health, suddenly experienced severe nausea, chest pain, and dizziness. By ambulance, Lori was transported to Baptist Hospital East in Louisville, Kentucky. She received a cardiovascular evaluation by Dr. George Stacy but was subsequently discharged without a firm diagnosis.
On April 14, 1996, Lori was at the movie theater with one of her children when the symptoms suddenly returned. The nausea and chest pain were so severe that an ambulance was needed. Lori was again taken to Baptist Hospital East, and the emergency room physician, Dr. Charles Smith, found nothing medically wrong with Lori. He prescribed Ativan for anxiousness and recommended she see an internist.
One day later, on April 15, Lori saw Dr. Kemper, an internist, at his office. At this time, Lori's weight was reported to be 137 pounds. Dr. Kemper ordered an ultrasound of the gallbladder to rule out gallbladder disease. He also prescribed Xanax for anxiety. Dr. Kemper subsequently interpreted the ultrasound to be within normal limits.
It appears that Lori and/or her husband called Dr. Kemper several times after April 15. Lori's symptoms continued to worsen. Because of the severity of Lori's symptoms, a family trip to Disney World was cancelled. The nausea had even caused Lori to pass out at her child's preschool. In late April 1996, Dr. Kemper ordered a Computed Axial Tomography (CAT) Scan of the abdomen; the CAT Scan report revealed a two-centimeter cavernous hemangioma on the right lobe of the liver and a two-centimeter right ovarian cyst. Dr. Kemper interpreted this report as being within normal limits. Having ruled out what he believed to be all physical causes for Lori's symptoms, Dr. Kemper opined that her symptoms were caused by anxiety and/or panic attacks. He believed Lori needed psychiatric care, not medical treatment for her condition.
In June and July 1996, Lori was examined by Dr. Larry Mudd, a psychiatrist. Dr. Mudd diagnosed Lori with an anxiety disorder and began to treat her with medication. In late August 1996, Lori's symptoms had not abated but continued to worsen, so she consulted with another internist, Dr. Robert Ellis. At this time, Lori's weight was reported to be 125 pounds. Having obtained no medical explanation for her symptoms, Lori saw a psychologist, Dr. Carroll Macy in September 1996, and consulted with another psychiatrist, Dr. Karen Head, in October 1996. In December 1996, Lori began treatment with yet another psychiatrist, Dr. Ken Davis. Dr. Davis also diagnosed Lori with anxiety. By December 1996, Lori's weight was reported to be 117 pounds.
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