This is an Advertisement

Articles Tagged with attorneys

Published on:

In a recent Kentucky Supreme Court case, a medical malpractice suit was filed by a couple against a doctor and his practice. The doctor had performed a thyroidectomy on the wife. She started experiencing breathing difficulties the night of the surgery. She was placed on a ventilator for four days and stayed in the hospital a total of 12 days. Post-surgery, she had trouble breathing and talking. She consulted with an otolaryngologist. He diagnosed her with right vocal cord paralysis. The couple filed a medical negligence lawsuit in connection with the thyroidectomy.

During discovery, the doctor asked whether other physicians had stated that he deviated from good medical practice. The plaintiffs’ response stated that a surgeon had verified there was a departure from the appropriate standard of care to cut or otherwise alter the vocal cord. The response cited various treating physicians. The doctor filed a motion to set the case for trial. The judge set a schedule requiring the couple to disclose expert witnesses on a particular date. The order by the judge did not contain a specific deadline for disclosure of expert witnesses. It did require quick and efficient witness disclosure.

Three years after the suit was filed the doctor moved for summary judgment. He argued they had failed to identify a surgeon who would testify he deviated from the standard of care. The plaintiffs filed a motion to reschedule the trial and to get an extension of time to list experts. They argued that summary judgment was not appropriate because evidence in the depositions raised genuine issues of material fact. The woman’s medical records showed he was being treated for hypothyroidism, or an underactive thyroid before the surgery. She consulted with an internist because she was short of breath and had palpitations. An ultrasound showed she had an enlarged right lobe of thyroid with a small lesion. She was referred to the defendant doctor to see whether removal of the gland was appropriate. She consulted with him once before the surgery and signed a consent form in connection with it. The form explained she had a “thyroid storm.” The internal medicine doctor said a thyroid storm is an emergency condition. The appropriate treatment is hospitalization and consultation with an endocrinologist. Surgery is not appropriate. Continue reading

Published on:

In an unpublished 2013 case, a couple sued a window screen manufacturer and the owners of an apartment building. Their toddler fell through an open window and died. A Kentucky trial court dismissed their claims, and the couple appealed. The issue in the case was whether a manufacturer of the screen that was in the open window owed the family the duty to warn or design its screens such that the child’s fall would be prevented.

The child who died was in a fourth-floor apartment in which his grandmother lived. The window was open, but the screen was in place. The window sill was 7 inches above the floor.

The screen did not have any warnings on it. Other screens in the building did have a label that warned parents that their child should not be near the open window. The toddler’s parents brought a wrongful death action against defendants including the window manufacturer and owners and managers of the apartment building. Continue reading

Published on:

In Kentucky, personal injury cases where negligence is alleged, a plaintiff must establish (1) a duty owed to the plaintiff, (2) breach of the duty, (3) that proximately causes injuries, and (4) actual damages. Negligence, including the element of causation, is never presumed in Kentucky. What happens, however, if some surprising act occurs to cause an accident that is not related to a defendant’s otherwise negligent conduct? A “superseding cause” can absolve a defendant if it is extraordinary and independent — that is not arising out of a negligently created condition.

In a recent unpublished opinion that illustrates how Kentucky looks at the issue of superseding causes, the Court of Appeals of Kentucky considered a case involving two accidents on opposite sides of an interstate highway. The first accident involved the defendant’s car, which she had driven into the median and hit the base of the eastbound bridge under the roadway. The second accident happened when the plaintiffs were driving eastbound. They had come to a total stop in a traffic jam after the defendant’s car’s accident. A tractor-trailer rear-ended their vehicle, killing a family member and injuring another.

The plaintiffs sued the defendant, claiming that her first accident directly and proximately caused their injuries and damages. The defendant moved for summary judgment, arguing that her accident had happened more than a mile away and that the traffic jam was the result of the emergency personnel’s response and the negligence of the tractor-trailer driver, not her driving. The defendant argued that both of these events were superseding causes of the plaintiffs’ injuries. The trial court agreed, ruling that the first responders had stopped traffic and the  tractor-trailer’s negligence were both superseding causes. Continue reading

Published on:

Insurance policies can be difficult for a layperson to interpret. There are a number of additional principles that govern insurance contracts, which insurers know, but their insured do not always understand. An experienced personal injury attorney can help make sure that you are not tripped up in a personal injury settlement with an insurer due to confusing policy terms or principles of which you may not be aware.

In a recent case, the Kentucky Supreme Court reviewed an appellate court’s opinion agreeing with the insurance company and against an injured person. In the case, the lower court’s grant of summary judgment dismissed a man’s claim for underinsured motorist coverage on the grounds that the underinsured motorist coverage was the result of a mutual mistake in making the insurance contract. Mutual mistake is a defense that an insurer may raise to show there is no coverage for an accident.

The man argued that the “mutual mistake” defense wasn’t available because the insurer failed to present clear and convincing evidence proving it mistakenly issued underinsured motorist coverage. He also argued that the insurer hadn’t plead mutual mistake with particularity and therefore it waived the defense. He also claimed the trial court should have permitted him to amend his complaint to include statutory bad faith. Continue reading

Published on:

A 2013 Tennessee motor vehicle accident case involved a collision between a car driven by plaintiff Ramey Long and an 18-wheeler owned by a trucking company. The plaintiff was driving around 5 a.m. in the left lane on Interstate 40. As she tried to pass it, the 18-wheeler and her car collided. Her car stopped in the left lane and stayed smashed and unable to be operated after the collision.The front left brake booster and tire of the truck were also damaged.

Another truck driver stopped at the scene and came over to help. The plaintiff got out of her car and crossed the interstate to get in the emergency lane.

At the same time Ms. Adair was traveling alone the same route in an SUV. They came to the accident and she brought the SUV to a stop in the right lane. However, a Greyhound bus rear-ended it, sending it into the emergency lane and an adjacent grassy area. The SUV hit the plaintiff, dragging her into a ditch. She suffered spinal fractures. Continue reading

Published on:

A “Daubert hearing” takes its name from a United States Supreme Court case titled Daubert v. Merrell Dow Pharmaceuticals, Inc. It refers to a hearing in which the trial judge evaluates whether testimony or evidence from a particular expert is admissible. The hearing occurs outside of a jury’s presence before trial. This type of hearing is often necessary in a pharmaceutical injury case where the plaintiff alleges the drugs prescribed caused serious harm.

In Kentucky, a trial judge must determine whether the expert will be testifying to (1) technical, scientific, or specialized knowledge that (2) will help the trier of fact understand a fact at issue in the trial. A hearing is not always required, but a trial judge can only rule without a hearing if the record before the court is complete enough to measure the proposed evidence against the standards of reliability and relevance. Evidence must be both reliable and relevant to be admitted.

A 2008 pharmaceutical injury case involving, among other issues, a Daubert hearing arose when a woman gave birth to her second child by cesarean section. She didn’t want to breastfeed, so her obstetrician prescribed the drug Parlodel to stop her lactation. She started the drug and was discharged from the hospital. A few days later, she experienced a headache and pain between her shoulders. The next morning, her mother found her dead. Continue reading