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Pack v. Witten3/4/2005
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
Bonnie Pack appeals from a January 6, 2004, judgment of the Jefferson Circuit Court. Following a jury verdict in favor of the appellees, Dr. Carroll Witten, Jr., and Witten, Sherman & Catalano, PLLC, the court dismissed her claim of medical malpractice. On appeal, Bonnie contends that the trial court erred in failing to direct a verdict in her favor on the issue of Dr. Witten's alleged negligence. After our review of the record, we agree in part. Therefore, we affirm in part, vacate in part, and remand.
Bonnie Pack filed this action for medical negligence in her capacity as administratrix of the estate of James Pack, her deceased husband. James underwent hip replacement surgery on July 25, 2001. Dr. Witten, an orthopedic surgeon, performed the surgery and was assisted by his partner, Dr. Joseph Catalano. At the conclusion of the surgery while Pack was still anesthetized, Dr. Witten slipped in water in the operating room while holding Pack's leg, jerking the leg so severely as to dislocate the hip that had just been replaced. That dislocation was discovered in the recovery room. Both doctors returned to surgery and performed a closed reduction procedure, restoring the hip to its proper placement.
Pack continued to experience severe pain. His hip became dislocated again sometime after his release from the hospital on July 29, 2001. At his first post-operative appointment on August 13, 2001, Dr. Witten discovered the second dislocation and on that same day performed a second surgery --- an open reduction procedure. Prior to his release from the hospital after the second hip surgery, Pack's hip again became dislocated. Dr. Catalano performed a third surgery on August 19, using a larger ball and stem. Pack's hip remained stable after this surgery.
On November 30, 2001, Pack was given a prescription for methadone by a doctor at a pain clinic. After filling the prescription and taking an unknown number of pills, Pack died later that evening.
On April 16, 2002, Bonnie filed a lawsuit against Dr. Witten and his medical practice. She alleged that Dr. Witten was negligent in caring for her husband; that he caused Pack to suffer great pain and anguish and to sustain severe injuries; and that he had destroyed Pack's ability to labor and earn money. The matter was tried before a jury in December 2003.
In addition to the damages that Pack sustained as a result of his three hip surgeries, Bonnie sought to link her husband's death to Dr. Witten's care. She argued that Dr. Witten's treatment set in motion a series of disastrous events that culminated in Pack's death. Among the problems allegedly triggered by the treatment was Pack's recourse to strong pain medicine to cope with the pain associated with multiple surgeries. Bonnie presented expert testimony that Pack had died from the synergistic effect of the methadone, a narcotic, and xanax, a tranquilizer, both of which were prescribed for Pack by doctors other than Dr. Witten.
Dr. Witten's experts disagreed that Pack died from a toxic mix of drugs and instead presented testimony that Pack died as a result of a congenital heart condition. Dr. Witten also presented evidence that Pack had been using narcotic pain medication for many years prior to his involvement in Pack's medical treatment.
At the conclusion of the trial, the jury returned a verdict in favor of Dr. Witten and his medical practice. Bonnie's motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial was denied on February 18, 2004.
In this appeal, Bonnie argues that she was entitled to a directed v
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