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Cavana v. Love6/17/2005
AFFIRMING
BEFORE: KNOPF, TAYLOR, AND VANMETER JUDGES.
This is an appeal and cross-appeal from a judgment of the Campbell Circuit Court confirming a jury verdict and award in a medical malpractice case. The appellant, Joan Cavana argues that the trial court erred by giving the jury a comparative fault instruction and by denying her motion for a new trial after the jury awarded her only nominal damages for pain and suffering. The cross-appellant, Dr. Timothy A. Love, argues that the trial court erred by denying his motion for a directed verdict on the issue of liability. Finding no error, we affirm.
On August 16, 2000, Cavana went to the emergency room at St. Luke Hospital East in Fort Thomas, Kentucky, complaining of abdominal pain. Dr. Love, her treating physician, ordered an ultrasound of Cavana's gallbladder and diagnosed her abdominal pain as gallbladder disease. Dr. Love then discharged Cavana with instructions to consult with a general surgeon and with her family physician. Cavana returned to the emergency room ten weeks later, on October 30, 2000, complaining of abdominal pain and shortness of breath. Cavana's treating physician on that date ordered an electrocardiogram (EKG), which indicated that she had previously suffered a heart attack.
Thereafter, Cavana brought this action against Dr. Love and St. Luke Hospitals. She alleged that Dr. Love was negligent because he failed to order an EKG and diagnose her heart attack on her first visit. As a result, Cavana asserts that she has suffered permanent and irreversible heart damage. She sought damages for lost income, lost earning capacity, and pain and suffering.
St. Luke Hospitals settled with Cavana prior to trial. The matter then proceeded to a jury trial on December 1-5, 2003. The jury found that Dr. Love was negligent in his treatment of Cavana, but it also found that Cavana failed to exercise ordinary care for her own health and safety. The jury apportioned 90% of the fault to Cavana and 10% to Dr. Love. The jury awarded Cavana $1,500.00 for past lost wages, $75,000.00 for lost earning capacity, and nothing for pain and suffering. After conferring with counsel, the trial court advised the jury that nothing for pain and suffering was inadequate as a matter of law. Thereafter, the jury returned with a verdict of $1.00 for pain and suffering. Based upon the jury's verdict and apportionment of fault, the trial court entered a judgment for Cavana in the amount of $7,650.10. Subsequently, the trial court overruled Dr. Love's and Cavana's motions for judgment notwithstanding the verdict and for a new trial. This appeal and cross-appeal followed.
Cavana first argues that the jury should not have been instructed on the issue of comparative negligence. She concedes, as a matter of law, that comparative fault is applicable to all negligence claims, including her medical negligence claim. But Cavana argues that there was no evidence that the damage to her heart was caused by her delay in seeking treatment.
Similarly, Dr. Love asserts that he was entitled to a directed verdict. He concedes that there was evidence to support Cavana's claim that he was negligent in failing to diagnose her heart attack on August 16, 2000. Rather, he argues that there was no evidence to support her contention that his negligence caused any additional damage to her heart.
Both Cavana's appeal and Dr. Love's cross-appeal address the sufficiency of the evidence justifying the trial court's submission of the issues of liability and comparative fault to the jury. The purpose of a motion for judgment notwithstanding the verdict is the same as that of a motion for directed verdict
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