... and Justice for All

A Fair and Impartial Jury; Kentucky Supreme Court Reverses Medical Malpractice Verdict for Defendant

Krystal Meredith was only 20 years old, 37 weeks pregnant and suffering from severe abdominal pain; three times she went to Norton Hospital, where she was treated first by Dr. James Haile and then by her regular OB/GYN, Dr. Luis Velasco. On her third visit, blood work was done and it revealed an ongoing infection. Labor was induced and a healthy baby delivered. However, Krystal continued her decline and exploratory surgery revealed the source of her abdominal pain: a ruptured appendix and abscess. From this she developed acute respiratory distress syndrome and passed away.

A Jefferson County jury returned a verdict in the medical malpractice case that followed Krystal's death. But was the jury fairly constitute? The Kentucky Supreme Court ruled it was not and ordered a new trial in Grubb v Norton Hospital, No 2010-SC-532 (May 23, 2013).

During jury selection one prospective juror indicated that his son had an employment relationship with the parent Corporation of Norton Hospital and expressed doubt about his ability to be impartial. Another prospective juror indicated that she had been a patient of an expert witness for the defense and indicated reservations and reluctance about her ability to fairly serve as a juror. The court also ruled that this juror should have been excused for cause. 

The court ruled that harmless error analysis was inapplicable. Also, the plaintiffs had properly and fully made the record as to the issue by identifying to sitting jurors whom they would have removed had any peremptory strikes remained. Accordingly, the case was remanded to Jefferson Circuit Court for another trial.

This case is the latest installment in the Court's jurisprudence regarding jury selection. In Shane v. Commonwealth, 243 SW3d 336 (Ky 2007), it held that "exercise of peremptory strikes is a substantial right and ... that harmless error analysis is inapplicable where a peremptory strike is used to remove a juror who should have been excused for cause." Subsequently, in Gabbard v. Commonwealth, the court held that a party must indicate on their strike she the additional juror whom it would have removed have the motion to strike been granted. "Together, Shane and Gabbardreinstated the rule which had been briefly overruled" by the court's decision in Morgan v. Commonwealth, 189 SW3d 99 (Ky. 2006). Grubb advises this rule applies alike to civil cases. 

Robert L. Abell
www.RobertAbellLaw.com 

 

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BRB Coverage Comes Before Med Pay Coverage, Court of Appeals Rules

Does BRB coverage come before med pay coverage in an auto policy? The answer made a difference to whether the statute of limitations had lapsed on a tort claim in Cole v. Fagin, No 2012-CA-797 (April 19, 2013), where the Court of Appeals ruled that BRB coverage came first and reversed a summary judgment.

Susan Cole was wise and bought plenty of auto insurance; she had a policy with Grange Insurance that included $10,000 in basic reparations benefits (BRB) coverage, $5000 in Med Pay as well as underinsured and uninsured motorist coverages.  She was injured in an auto accident on July 1, 2009, and received treatment for injuries at a hospital.  Grange mailed her a BRB application the next day.  A week later, Grange's adjuster wrote Cole's lawyer and informed him that "payment for her medical expenses" would be under the Med Pay coverage "since there is a one year statute on that coverage."  Cole later mailed the adjuster her completed BRB application.  There was some further correspondence between Cole and Grange but, according to the Court of Appeals, "nothing else in the record ... indicates what coverage the parties was being utilized while Grange was paying Cole's medical expenses from August 6, 2009 to October 22, 2009, which totaled $3,976.57."  

Cole filed suit on October 13, 2011, against Fagin for negligence and against Grange for only partially paying her claim for Med Pay and BRB benefits under her policy.  Both Fagin and Grange moved to dismiss on statute of limitations grounds where the circuit court sustained.  

The Court of Appeals framed the issue as follows: "whether Cole received $3,976.57 from Grange for her medical expenses due to her Med Pay or BRB coverage." The Court of Appeals reversed the circuit court finding that BRB coverage applied before Med Pay coverage and explained as follows:

An auto accident tort claimant "has no tort claim whatsoever for any element of damages to the extent that those damages have been paid, or could have been paid, through BRBs under her existing coverage." ... Because the MVRA requires Cole's accrued medical expense reimbursements of $3,976.57 to be considered BRBs at the end of any tort litigation, (i.e., for the purpose of determining her damages), to avoid absurdity it follows that the MVRA likewise requires Cole's accrued medical expense reimbursements of $3,976.57 to be considered BRBs at the beginning of any tort litigation (i.e., for the purpose of the statute of limitations codified at KRS 304.23-230)."

Robert L. Abell
www.RobertAbellLaw.com  

Questions Arising from Richie Farmer Prosecution

It sure seems that Richie Farmer has made a real mess of the practically limitless goodwill that comes from being a UK basketball player and having your jersey hung from the Rupp Arena rafters. The federal criminal indictment is the latest shoe to drop. 

That said, though, one can see the potential mischief possible in using the federal criminal statute under which Farmer is charged, one that makes it possible to criminally charge a government or elected official who "misapplies" government funds. This would seem a point subject to endless argument, and one best resolved at the ballot box. 

So I discussed these concerns in greater length in a column published in the Lexington Herald-Leader, In Farmer Case, We Could Push So Far As to Criminalize Politics.

Robert L. Abell
www.RobertAbellLaw.com 

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The Most "Pro-Business" Supreme Court Since World War II

"Corporations Find A Friend In the Supreme Court" reports Adam Liptak in the New York Times. The article draws heavily on a study published in the Minnesota Law Review, How Business Fares In the Supreme Court, and written by, among others, long-time federal appeals court judge Richard A. Posner.  

Robert L. Abell
www.RobertAbellLaw.com 

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