Jones v. Overstreet

371 S.W.3d 727, 2011 WL 3516837, 2011 Ky. App. LEXIS 136
CourtCourt of Appeals of Kentucky
DecidedAugust 12, 2011
DocketNo. 2010-CA-000920-MR
StatusPublished
Cited by1 cases

This text of 371 S.W.3d 727 (Jones v. Overstreet) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Overstreet, 371 S.W.3d 727, 2011 WL 3516837, 2011 Ky. App. LEXIS 136 (Ky. Ct. App. 2011).

Opinion

OPINION

MOORE, Judge:

Janet and Ronald Jones appeal a defense verdict in their medical negligence action against Stephen K. Overstreet, M.D., Stephen K. Overstreet, M.D., PLLC, and Humana Insurance Company (collectively “appellees”). The sole issue on appeal is whether the trial court committed reversible error in admitting a wire into evidence on the basis that the wire qualified as a true replica of the instrument that allegedly caused the injuries at issue in the appellants’ action. Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Dr. Overstreet performed an esophageal dilation procedure at Baptist Hospital Northeast on Janet’s esophagus for what Dr. Overstreet suspected was a mid-esophageal stricture. The appellants describe the specifics of this procedure in their brief:

After [a] diagnostic, upper endoscopy [is performed], a guide wire is placed through the endoscope (which has an open channel) past the area of the suspected stricture in the esophagus and into the stomach. After the wire is properly positioned under direct visualization, the endoscope is slowly removed while the wire is simultaneously advanced in order to maintain the position of the wire in the stomach. After the endoscope is removed, the position of the wire is confirmed by using distance markings placed on the wire by the manufacturer or by using fluoroscopy (x-ray). The wire is held in position at the patient’s incisors by an assistant, and the dilator is then loaded onto the back of the wire and lubricated. The physician must then firmly secure the wire outside the patient and advance (push) the dilator over the guide wire past the suspected stricture. If subsequent, larger dilators are used, the initial dilator is removed, and the wire is held in place at the incisors by an assistant. The placement of the wire is re-checked by using the wire markings or fluorosco-py, and the process is repeated. When the dilations are completed, the wire and dilator are removed together.
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[A] Savary-Gilliard wire is utilized as a safety device to guide the passage of the dilators. It is manufactured and designed with a flexible, floppy [spring] tip. The tip is at the front end of the wire and is inserted into the patient. When used properly, the flexible, floppy [spring] tip is also intended and designed as a safety device. The flexible, floppy [spring] tip is wider in diameter than the remainder of the wire and the dilator so the dilator cannot be pushed beyond the wire. The flexible, floppy [spring] tip is soldered to the rest of the wire, and if there is excessive movement or bending of the wire at this junction, a sharp edge can be created or the tip [730]*730may even break off completely. The wire can be of different lengths, but it is typically 160 centimeters long. It has markings (bands) in 20 centimeter increments indicating the distance from the floppy [spring] tip (front end) of the wire in relationship to a fixed point on the patient — the incisors. In most patients, the wire is inserted to the band with three marks or approximately 60 centimeters from the tip of the wire to the patient’s incisors. The wire is manufactured and designed to be a reusable medical device.

Immediately following Janet’s procedure, Dr. Overstreet consulted with a general surgeon, Dr. Thomas Hart, because Janet was complaining of abdominal pain. Dr. Hart’s consult note states that Dr. Overstreet felt moderate resistance upon passage of the second dilator during the procedure and that Dr. Overstreet had noticed that the initial guide wire was “somewhat kinked” when he removed it from Janet’s esophagus. Janet was transferred to Baptist Hospital East for further evaluation and treatment. She was seen by Dr. Marc Marcum, a general surgeon. Dr. Marcum suspected that the guide wire that Dr. Overstreet had used in Janet’s procedure had caused a stomach or duodenal perforation. During surgery, Dr. Mar-cum found evidence of a perforation.

The appellants filed a medical negligence suit in Jefferson Circuit Court against Dr. Overstreet and his practice, and the case proceeded to trial. Both of the appellants’ experts, Drs. Alvin Zfass and Patrick Okolo, testified that Dr. Over-street’s method of marking, securing, and controlling the guide wire during Janet’s procedure fell below accepted standards of care and had caused the guide wire to move beyond the stomach, bend into a sharp edge at the front end, and perforate Janet’s duodenum.

The appellees argued that Dr. Over-street had met the applicable standard of care when he performed Janet’s procedure. The appellees’ experts, Dr. William Emlich, Jr., Dr. Kashif Haider, and Dr. Overstreet himself testified that (1) a perforation is a known risk of the dilation procedure and could occur even when the physician does not breach the applicable standard of care; (2) there was no evidence that the guide wire even reached Janet’s duodenum; and (3) the perforation may have been caused by something unrelated to the procedure, ie., a duodenal ulcer.

At trial, Dr. Overstreet testified that he had performed Janet’s esophageal dilation procedure with a Savary-Gilliard guide wire and polyvinyl dilators. However, the original guide wire that Dr. Overstreet had used during Janet’s procedure was unavailable for trial; Dr. Overstreet testified that, to his knowledge, Baptist Hospital Northeast had disposed of it. As such, both parties equally utilized sample Sa-vary-Gilliard guide wires to prove their respective theories of this case. In particular, both parties had virtually every expert use sample guide wires to perform simulations of Janet’s procedure for the jury, and the sample guide wires were manipulated and bent during those simulations. Aside from those demonstrations, Dr. Zfass, the appellants’ expert, also allowed a juror to touch part of a sample guide wire. At one point in his demonstration, Dr. Zfass held a sample guide wire in his mouth. And, both Drs. Emlich and Haider demonstrated the flexibility of the spring tip at the front end of a sample guide wire by probing it into their hands. Dr. Haider remarked that the spring tip “couldn’t even pop a balloon.”

Near the end of Dr. Haider’s testimony, the appellees’ counsel asked Dr. Haider whether the sample guide wire that he had [731]*731been demonstrating with was representative of the type of guide wire that Dr. Overstreet would have used in Janet’s procedure. Dr. Haider stated, “I would think so. I mean, this is the guide wire that we use. Yes, sir.” Thereafter, the appellees sought to introduce the sample guide wire into evidence. The appellants objected.

The matter of whether the sample guide wire was admissible as evidence was postponed. The parties argued this issue before the trial court on the following day.

Appellees’ Counsel: Your honor, we, we did check the tapes, or CD’s last night. We did find the area where Dr. Over-street acknowledged that this particular wire is indeed of the same type that was utilized and we’ve got that marked for the court so that we can mark the wire as an exhibit. Um, and above and beyond that, I will tell the court if the plaintiff has rested, that it is the intention of the defense to rest as well.
The Court: Alright.
Appellants’ Counsel: Let me address the wire issue, your honor. Um, with respect to the wire issue, um, the wire that we have here that Mr.

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371 S.W.3d 727, 2011 WL 3516837, 2011 Ky. App. LEXIS 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-overstreet-kyctapp-2011.