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Jones v. Stern1/28/2005
REVERSING AND REMANDING
This is a medical malpractice case in which Bobbie Jean Jones, individually and as Administratrix of the estate of Richard Wayne Jones, deceased, appeals from a judgment entered upon a jury verdict adjudging Gopal Rastogi, M.D., not liable in the death of Richard, and adjudging James Stern, M.D., 5% liable in same. As against Dr. Stern the judgment awarded the appellant $4,750.25 plus 5% of costs expended in the litigation. The appellant contends that the trial court erred by permitting an apportionment of fault to a non-settling nonparty; by failing to include an instruction for loss of future income; by permitting Dr. Alan Graham to testify as an expert witness on behalf of the appellees; and in its allocation of costs. Because the trial court erred by including the non-settling nonparty Jefferson County physicians in the apportionment instruction, we reverse and remand for a new trial.
On December 17, 1998, bariatric weight reduction surgery was performed on Richard by Gerald Larson, M.D., at Norton Hospital in Louisville, Kentucky, in Jefferson County. The procedure used was the vertical banded gastroplasty method. Richard weighed approximately 500 pounds and underwent the surgery due to his obesity. It appears that during the procedure Dr. Larson perforated Richard's stomach along the staple line.
Richard was discharged from Norton Hospital on December 24, 1998, and returned to his home in London, Kentucky, in Laurel County. On December 26, 1998, Richard was taken by ambulance to Marymount Hospital in London complaining of severe abdominal pain. He was admitted to the hospital by Dr. Rastogi and, among other things, given IV fluids. Dr. Stern was consulted regarding treatment.
On December 27, 1998, Dr. Stern contacted Dr. Larson, and Richard was transferred to Norton twenty-seven hours after his presentation at Marymount. Norton Hospital doctors attempted to stabilize Richard and surgery was performed, at which time they discovered a stomach perforation and massive amounts of purulent fluid in the body cavity, with infection. Approximately five liters of pus was drained from Richard's stomach cavity and the perforation was repaired. Richard lived a few more hours and was pronounced dead at 6:32 a.m. on December 30, 1998.
The appellant filed a medical malpractice suit against Dr. Larson, John Kuhn, M.D., and Norton's Hospital in Jefferson County, and against Dr. Stern, Dr. Rastogi, and Marymount in Laurel County.
The Jefferson County trial was held first, and commenced on September 23, 2003. Though not defendants in the Jefferson County case by reason of venue, Dr. Stern and Dr. Rastogi were included in the apportionment of fault instructions in that case. The Jefferson County jury exonerated Dr. Larson and Dr. Kuhn in Richard's death. Having exonerated the Jefferson County doctors, the jury proceeded to make no apportionment of blame against Dr. Stern and Dr. Rastogi.
The Laurel County trial commenced on January 7, 2004. Similar to the situation in the Jefferson County trial, though Dr. Larson and Dr. Kuhn were not defendants to the action, they were included in the apportionment instruction. The jury returned a verdict determining, as to Richard's death, that Dr. Stern was 5% at fault, that Dr. Rastogi was not at fault, that Dr. Larson was 85% at fault, and that Richard was 10% at fault. The appellant was awarded a judgment against Dr. Stern of $4,750.25 (5% of $95,005.00) plus 5% of costs expended in the litigation. This appeal followed.
The appellant's principal argument is that the trial court erred by giving an apportionment of fault instruction which included Dr. Lar
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