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Gordon v. Kemper3/25/2005
or in causing the underlying injury under Instruction 2. If the jury finds that the physician's breach of the standard of care caused the underlying injury, plaintiff would be entitled to damages ordinarily recoverable in a traditional malpractice action. However, if the jury finds that such breach was not a substantial factor in causing the underlying injury, the jury may then consider whether such breach caused a lost chance of recovery/survival under Instruction 3 and fix the exact percentage representing that lost chance under Instructions 4 and 5. The judge will then determine the amount of damages by multiplying the total damages by the percentage representing the lost chance of survival.
We thus conclude that it was reversible error not to instruct the jury upon Lori's lost chance of survival. Upon remand, the jury should be instructed under the above model instructions with the omission of Instruction 2. Instruction 2 essentially asks the jury whether Dr. Kemper's failure to exercise reasonable care was a substantial factor in causing Lori's injury . The jury was previously so instructed and answered in the negative. As we view appellants' specific allegations of error regarding the trial proceedings to be without merit, appellants are not entitled to retry whether Dr. Kemper's negligence caused the underlying injury.
As to appellants' remaining issues, we view them to be without merit.
Accordingly, we are of the opinion that appellants are entitled to a new trial upon the narrow issue of whether Dr. Kemper negligently failed to diagnose or treat Lori and whether such failure caused Lori to suffer a lost chance of survival. The jury should be instructed under the above model instructions with the exception of Instruction 2.
CROSS-APPEAL NO. 2002-CA-002043-MR
Dr. Kemper pursues what is commonly described as a "protective" cross-appeal. A protective cross-appeal is generally limited to legal issues that would arise if the judgment appealed from was reversed and remanded. See Michael E. Tigar & Jane B. Tigar, Federal Appeals Jurisdiction and Practice, ยง 6:10 (3d ed. 2003). On cross-appeal, Dr. Kemper raises the issue of whether the trial court should have excluded certain testimony of Dr. Ellis's expert witness, Dr. Peter L. Thurman. As Dr. Ellis settled with Lori, it is impossible for this precise issue to be raised again upon retrial. The law in this Commonwealth is clear that " e may not render advisory opinions concerning moot or hypothetical issues." Commonwealth v. Deweese, 141 S.W.3d 372, 375 (Ky.App. 2003). As Dr. Ellis is no longer a party, we conclude that any opinion upon the issue of Dr. Thurman's testimony would be merely advisory.
The Court hereby, sua sponte, ORDERS Cross-Appeal No. 2002-CA-002043-MR DISMISSED.
For the foregoing reasons, Appeal No. 2002-CA-001983-MR is affirmed in part and reversed and remanded in part for proceedings consistent with this opinion; Cross-Appeal No. 2002-CA-002043-MR is dismissed.
ALL CONCUR.
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