Lewis v. Kenady

894 S.W.2d 619, 1994 Ky. LEXIS 142, 1994 WL 713108
CourtKentucky Supreme Court
DecidedDecember 22, 1994
Docket94-SC-180-DG
StatusPublished
Cited by14 cases

This text of 894 S.W.2d 619 (Lewis v. Kenady) 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
Lewis v. Kenady, 894 S.W.2d 619, 1994 Ky. LEXIS 142, 1994 WL 713108 (Ky. 1994).

Opinions

LAMBERT, Justice.

We are called upon to review the rulings of the circuit court and the Court of Appeals with respect to three admissions made or obtained by means of CR 36. This is a medical negligence case and in the trial court, pursuant to a jury verdict, judgment was rendered for the appellee physicians. The Court of Appeals affirmed. Upon our grant of discretionary review, appellant claims the CR 36 admissions at issue here establish her entitlement to a directed verdict rendering inadmissible any evidence on the matters covered by the admissions.

Appellant had been previously and successfully treated by appellee Dr. Kenady for colon cancer. A malignant breast tumor had also been removed. In a follow-up mammo-graphic examination, a new breast abnormality was discovered and appellant and appel-lee Kenady, agreed that additional surgery would be required. From that point, however, the facts are seriously disputed. In particular, there is a dispute as to whether appellant understood that Dr. Kenady would be performing a mastectomy. She contends that she authorized mastectomy only if there [620]*620was a positive biopsy, but he says that under the circumstances, the standard of care called for mastectomy and that appellant fully understood what would be done.

The surgery was not performed by Dr. Kenady, but by Dr. Schwartz, an equally qualified surgeon, after consultation with Dr. Kenady. The substitution was occasioned by an emergent circumstance. Dr. Kenady was away due to a death in his family. The hospital had advanced the operating schedule and anesthesia had been administered. Dr. Schwartz discovered the preparation and telephoned Dr. Kenady. Recognizing that appellant was at high risk for anesthesia, rather than keep her under until Dr. Kenady arrived or abort the procedure until another day and subject her to a second anesthesia, the doctors decided that Dr. Schwartz would-perform the operation. Regardless of other conversations which may have transpired between appellant and Dr. Kenady and statements appellant may have made to others with respect to her surgery, her written authorization was for a mastectomy. On pathological examination, the removed tissue was not found to be cancerous.

After suit was filed and while the litigation was still in relatively early stages, appellant served upon appellees certain written interrogatories and requests for admission. The interrogatories were seasonably answered, but there was no response to the requests for admission.1 Thereafter, the litigation proceeded with no mention by either side of the admissions. Discovery and evidentiary depositions were taken, pre-trial conferences were held, and the case proceeded toward trial. At a pre-trial conference eight months prior to trial and on request of the court, the parties each filed a pre-trial memorandum. In appellant’s memorandum, her version of the facts was stated -and nine legal issues were identified for trial. The issues so identified went to the heart of the case and some of the issues were covered by the requests for admission. Despite this, there was no mention of the admissions which .had by then been of record for two years or more.

The admissions first came to light during opening statement when appellant objected to a line of argument by appellees on grounds that the matter had been admitted. According to appellees, this came as a total surprise, but on examination of their files the admissions were found. Shortly thereafter, appellees moved to withdraw the admissions. At the hearing on their motion to withdraw, appellees’ counsel mysteriously stated “at the time [of the admissions] we felt it was appropriate to admit them.”

The trial court overruled the motion to withdraw the admissions and allowed them to be read to the jury. Nevertheless, the court held that the admissions were not conclusive, permitted appellees to present their evidence, and refused to grant a directed verdict on the basis of the admissions. However, there is no indication that appellant failed to present any evidence or otherwise prejudi-cially relied on the effect of the admissions. In fact, during her evidence in chief, appellant thoroughly presented her case on the matters covered by the admissions and not until near the end of her evidence in chief did she seek to read the admissions to the jury.

On appeal from the adverse final judgment, appellant claimed prejudice with respect to the trial court’s rulings on the requests for admission. She contended that the admissions were conclusive; that as a result, a directed verdict should have been granted; and that it was reversible error for the court to allow any other evidence relating to the matters admitted.

Affirming the trial court, the Court of Appeals focused on the absence of prejudice to appellant and held that the effect of the trial court’s ruling amounted to ordering withdrawal of the admissions except that plaintiff was allowed to use them anyway. It said:

Lewis was permitted to put on her proof as to these matters and did present fully developed evidence. The defense also offered their case, including the authorization for mastectomy signed by Lewis. There is no indication from the record that [621]*621Lewis was unprepared to go forward on these issues or had otherwise relied on the admissions to her detriment. Considering the fact that there was no showing of intentional delay or misfeasance on the part of the defendants it appears that their request to withdraw the admission should have been granted. The actions of the trial court were tantamount to a grant of the motion and, as such, were proper. In fact, the allowance of the presentation of the admissions inured to the benefit of the plaintiff as a grant of the motion would not have.

The CR 36 admissions at issue here are as follows:

1. It is a departure from accepted standards of medical care for a surgeon to perform a mastectomy without having the patient’s consent for the surgeon to perform a mastectomy.
2. A surgeon who performs a mastectomy on a patient without first obtaining the patient’s consent to his performing the mastectomy is not acting as a reasonable competent surgeon under the circumstances.
3. Defendant Richard Schwartz did not have the consent of Plaintiff Ellen Lewis to perform a mastectomy on her on October 17, 1988.

In support of her claim for reversal, appellant contends that these admissions are conclusive. As far as they go, and providing there was not an effective withdrawal or amendment, we have no disagreement with this. CR 36.02 declares the conclusive nature of the matter admitted and we see no room for farther refinement. There are other words and phrases which would be the functional equivalent of the language contained in the rule, but we believe “conclusively established” to be of sufficient clarity to dispense with elaboration. While we share much of the concern expressed by the Court of Appeals as to the propriety of requests for admission such as these,2 they are within the confines of CR 36. In short, the admissions herein are what they are and the rule means what it says. “Any matter admitted under Rule 36 is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” CR 36.02. Inasmuch as the trial court failed to recognize the conclusive nature of the matters admitted, or permit amendment or withdrawal of the admissions, the only options allowed by the rule, it was in error.

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Lewis v. Kenady
894 S.W.2d 619 (Kentucky Supreme Court, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
894 S.W.2d 619, 1994 Ky. LEXIS 142, 1994 WL 713108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-kenady-ky-1994.