Bayless v. Boyer

180 S.W.3d 439, 2005 Ky. LEXIS 382, 2005 WL 3500034
CourtKentucky Supreme Court
DecidedDecember 22, 2005
Docket2003-SC-0250-DG
StatusPublished
Cited by27 cases

This text of 180 S.W.3d 439 (Bayless v. Boyer) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bayless v. Boyer, 180 S.W.3d 439, 2005 Ky. LEXIS 382, 2005 WL 3500034 (Ky. 2005).

Opinions

ROACH, Justice.

I. INTRODUCTION

This appeal arises from Appellants’ allegation of medical malpractice against Robert L. Boyer, M.D. and Walter Eiseman, M.D., for failing to diagnose a wrist fracture. At trial, Appellants, Michael J. Bay-less, II, and his parents, Michael J. and Deborah Bayless, were awarded damages for medical bills but no damages for pain and suffering. They appeal the decision of the Court of Appeals affirming the denial of their motion for a new trial in the Kenton Circuit Court. Appellants allege that numerous errors occurred, the cumulative effect of which entitles them to a new trial. Primarily, they claim: (1) that the jury’s “zero” verdict for pain and suffering damages was inappropriate; and (2) that limitations on the scope of questioning allowed by the trial court, particularly as related to the alleged bias of witnesses, were improper. In addition to their two central claims, Appellants raise several additional issues which we discuss below. Having reviewed each of Appellants’ claims of error, we conclude they are without merit. Thus we affirm the Court of Appeals.

II. BACKGROUND

Michael Bayless, II, fractured his right wrist while playing with friends on March [443]*44312, 1995. Later that night, his wrist became swollen and painful, so his mother took him to the emergency room of St. Elizabeth Medical Center (“Medical Center”).1

The triage nurse at the emergency room ordered an x-ray of Michael’s wrist. Dr. Robert L. Boyer examined Michael. Dr. Boyer’s notes of this examination included the entry “no wrist pain.” Deborah Bay-less’s testimony suggested that, in addition to his physical examination of Michael, Dr. Boyer had also examined x-rays of the boy’s wrist. Although Dr. Boyer did not remember any details of their meeting, he testified that because Michael had not complained of any acute pain during his brief examination, he thought it was unlikely that he would have reviewed the wrist x-rays. Dr. Boyer failed to diagnose the fracture and concluded instead that Michael had only a sprained wrist. He instructed Michael to wrap the injured wrist with an elastic bandage, apply ice, and take ibuprofen for pain. Pre-printed instructions on Michael’s discharge paperwork stated, “IF YOUR CONDITION WORSENS OR RETURNS, PLEASE CALL OR SEE YOUR PHYSICIAN OR RETURN TO THE EMERGENCY DEPARTMENT.”

The next day, Dr. Walter Eiseman, a radiologist under contract with the Medical Center, examined the x-ray of Michael’s wrist. He too failed to recognize the fracture. At trial, Dr. Eiseman stipulated that he had violated the standard of care applicable to him in failing to diagnose Michael’s broken wrist, but he argued that his failure to detect the fracture had not been a substantial factor contributing to Michael’s injury.

After his discharge from the hospital, Michael continued to lead a very active lifestyle as a member of his high school’s freshman baseball team. During this time, he claimed that he also experienced chronic pain in his wrist, routinely icing his arm and taking over the counter medications in an effort to relieve his symptoms. Despite his claim of constant pain, neither Michael nor his parents sought follow-up medical treatment until two months after his visit to the emergency room. Michael finally learned that he had a fractured wrist during a visit to his pediatrician. Although Michael testified at trial that the injury was not discovered until after the baseball season ended, this testimony was impeached by his prior deposition testimony which indicated that he had actually learned of the injury shortly before the end of the season and had continued to play.

After the season, Dr. John Wyriek, an orthopedic surgeon, evaluated and treated Michael’s fractured wrist. Because of the delay in diagnosis, movement and calcification of the fractured bone made treatment by casting the wrist impossible. Dr. Wy-rick subsequently performed surgery to repair the fractured bone. He testified that he had great confidence that the surgery was successful, that Michael would have normal strength in the wrist, and that the surgery had not rendered Michael any more susceptible to chronic pain or arthritis — in short, Michael’s surgical treatment was no less successful than had his wrist been treated promptly by casting.

At trial, the jury found no liability on the part of Dr. Boyer for his care and treatment of Michael. However, the jury concluded that Dr. Eiseman was liable for his negligence in Michael’s treatment. [444]*444The jury also found that Michael and his parents failed to exercise ordinary care for Michael’s safety and health, and apportioned liability between Dr. Eiseman and Appellants equally. The jury found damages of $9,802.16 based on the amount of his medical expenses, primarily the costs of the surgical procedure, but the jury declined to award any damages for Michael’s pain and suffering. The final judgment of the trial court against Dr. Eise-man was $4,901.08.

The trial court denied Appellants’ motion for a new trial, and the Court of Appeals affirmed on direct appeal. We granted discretionary review.

III. ANALYSIS

As noted above, Appellants allege numerous trial errors. The two primary issues — the appropriateness of the jury’s “zero” verdict for pain and suffering and the trial court’s restriction as to the scope of witness questioning — demand the greatest attention and will be discussed first.

A. “Zero” Verdict for Pain and Suffering

Appellants claim it was error for the trial court to deny their motion for a new trial on the issue of damages for pain and suffering. Appellants’ motion, pursuant to CR 59.01(d), specifically challenged the validity of the jury’s verdict of zero damages for Michael’s pain and suffering. Appellants claim that uncontroverted evidence of Michael’s pain from the surgery entitled them to an award for these damages. In response, Appellees argue that Appellants’ evidence was inconclusive and that the jury verdict was justified by testimony at trial.

It is well-established that appellate courts in this state review trial court rulings on a motion for new trial on grounds of inadequate damages under a “clearly erroneous” standard of review. See, e.g., Cooper v. Fultz, 812 S.W.2d 497 (Ky.1991). “Our decision in Cooper amounts to a recognition that a proper ruling on a motion for new trial depends to a great extent upon factors which may not readily appear in an appellate record. Only if the appellate court concludes that the trial court’s order was clearly erroneous may it reverse.” Turfway Park Racing Ass’n v. Griffin, 834 S.W.2d 667, 669 (Ky.1992) (emphasis added). Accordingly, we treat the decision of a trial court on this issue with a great deal of deference.

In addition, we recently rejected the notion that a jury verdict of zero for pain and suffering is inadequate as a matter of law in cases where a jury also awards damages for medical expenses. In Miller v. Swift, 42 S.W.3d 599 (Ky.2001), we held, “[t]he law in Kentucky ... does not require a jury to award damages for pain and suffering in every case in which it awards medical expenses.” Id. at 601. Relying heavily on Turfway Park,

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Bluebook (online)
180 S.W.3d 439, 2005 Ky. LEXIS 382, 2005 WL 3500034, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bayless-v-boyer-ky-2005.