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TMS Scores Appellate Reversal

Nov 7th, 2018

TMS Scores Appellate Reversal of $21 Million Verdict

 

            TMS’ appellate team was recently victorious at the Kentucky Court of Appeals, obtaining complete reversal of a $21 million jury verdict. Catholic Health Initiatives, Inc., et al. v. Kevin Ray Wells, Sr., 2016–CA–001919 & 2017–CA–000081 (Ky. App. August 10, 2018). Thompson Miller & Simpson attorneys Todd Thompson, Brad Hume, and Chad Propst were the architects of the appeal. Along with Thompson and Hume, Millicent Tanner and Lon Hays served as trial counsel.

 

            The decision was significant not only because of the verdict reversal, but also because it offers important guidance on future healthcare litigation.

 

·         Future trials involving claims of hospital negligence and physician negligence should be bifurcated—the hospital’s negligence is derivative of the physician’s. A plaintiff must, in other words, prove the physician’s negligence before proceeding against the hospital.

·         Bifurcation is necessary even when the plaintiff settles his claims with the physician before trial.

·         Civil conspiracy is not a standalone tort—it requires an underlying tort. And the alleged action taken in furtherance of the conspiracy must be outlined in the jury instructions. Advertising, alone, is insufficient.

·         Civil conspiracy requires apportionment of fault.

·         Joint venture is a vicarious-liability theory—when the plaintiff settled with other defendants, the hospital could not be held liable for their negligence.

·         Punitive damages are subject to Fratzke disclosures and CR 8.01(2).

 

Wells recently asked the Kentucky Supreme Court to review the case on discretionary review and a decision is likely in early 2019. TMS looks forward to litigating the appeal before the Kentucky Supreme Court, if necessary. If the Supreme Court rejects the case, the Court of Appeals’ thorough opinion will undoubtedly influence future healthcare litigation, including medical-malpractice and negligent-credentialing claims.

 

            Any case or law updates will be outlined here.