Tapp v. Owensboro Medical Health System, Inc.

282 S.W.3d 336, 2009 Ky. App. LEXIS 52, 2009 WL 961113
CourtCourt of Appeals of Kentucky
DecidedApril 10, 2009
Docket2008-CA-000848-MR
StatusPublished
Cited by5 cases

This text of 282 S.W.3d 336 (Tapp v. Owensboro Medical Health System, Inc.) 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
Tapp v. Owensboro Medical Health System, Inc., 282 S.W.3d 336, 2009 Ky. App. LEXIS 52, 2009 WL 961113 (Ky. Ct. App. 2009).

Opinion

OPINION

ACREE, Judge.

Kristi Tapp and Donald Ard, Co-Administrators of the Estate of Kyndall Paige Ard, (the Estate) appeal from the February 25, 2008, final judgment of the Daviess Circuit Court dismissing their negligence action against Dr. Stephanie Russell (formerly Luellen) and Owensboro Medical Health Systems (OMHS) following a jury verdict in favor of the doctor and hospital. Because we find that the trial court did not abuse its discretion in making an eviden-tiary ruling pursuant to Kentucky Rules of Evidence (KRE) 702, we affirm.

Kyndall Ard was admitted by her pediatrician, Dr. Russell, to the pediatrics floor of OMHS at approximately 3:50 p.m. on February 19, 2003. She was diagnosed with a febrile illness, dehydration, and low platelet count. Hilda Young, RN, evaluated Kyndall. Nurse Young cared for Kyn-dall until her shift ended at approximately 11:00 p.m., when Kyndall’s care was assumed by Karen Davis, RN.

Conflicting accounts of the night’s events were testified to at trial. What can be determined from the record is that on the morning of February 20, 2003, Kyndall suffered a seizure. Soon thereafter she stopped breathing, and “Code Blue” (Code) emergency resuscitative procedures were implemented. Unfortunately, Kyn-dall could not be resuscitated.

Tapp and Ard, Kyndall’s parents, filed suit on behalf of the Estate on September 1, 2004, alleging OMHS and Dr. Russell were negligent in their care and treatment of Kyndall immediately prior to and during her admission to OMHS. A five-day jury trial began on February 11, 2008, to resolve the claims.

At trial, the Estate offered expert testimony from Jane Walker, RN. Nurse Walker opined that there had been several failures, including a crucial delay in calling the Code, on the part of the nurses caring for Kyndall and that these failures fell short of the standard of care expected of them.

OMHS offered the testimony of several experts, including Ann White, RN, and Dr. James Gay. Nurse White testified that both Nurse Young and Nurse Davis complied with the standard of care expected of them in their treatment of Kyndall. Dr. Gay testified that he was familiar with the standard of care expected of hospitals and their nurses in situations faced by the OMHS nurses. He opined that the nurses at OMHS exercised the degree of care and skill expected of them and specifically testified that the Code was called at an appropriate time.

The Estate objected to Dr. Gay’s credentials as an expert witness. The trial court overruled the objection.

A jury returned verdicts in favor of OMHS and Dr. Russell. The trial court entered judgment reflecting those verdicts and dismissing the claims. The Estate moved for a new trial against OMHS only. That motion was denied. This appeal followed.

The Estate presents one argument for reversal — the trial court erred by allowing Dr. Gay to testify regarding the nurses’ standard of care, contrary to Kentucky law in violation of KRE 702. We disagree.

*339 The qualification of a witness as an expert rests within the sound discretion of the trial court. KRE 702 provides that a witness qualified as an expert by knowledge, skill, experience, training, or education may provide opinion testimony if scientific, technical, or specialized knowledge will assist the trier of fact. “Any lack of specialized training goes only to the weight, not to the competency, of the evidence.” Owensboro Mercy Health System v. Payne, 24 S.W.3d 675, 677 (Ky.App.1999), quoting Washington v. Goodman, 830 S.W.2d 398, 400 (Ky.App.1992).

A trial court’s determination as to whether a witness is qualified to give expert testimony under KRE 702 is subject to an abuse of discretion standard of review. See Farmland Mut. Ins. Co. v. Johnson, 36 S.W.3d 368, 378 (Ky.2000); Fugate v. Commonwealth, 993 S.W.2d 931, 935 (Ky.1999); Murphy by Murphy v. Montgomery Elevator Co., 957 S.W.2d 297, 299 (Ky.App.1997). “An abuse of discretion occurs when a ‘trial judge’s decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles.’ ” Farmland Mut. Ins. Co., 36 S.W.3d at 378 (quoting Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000)).

The specifics of the Estate’s argument on appeal differ slightly from that presented to the trial court. At trial, the Estate’s only objection was that, because Dr. Gay was not a nurse, he lacked the “training or experience” or “education” to testify as to the standard of care to be met by nurses. This requirement of KRE 702 has been in the rule since its original adoption in 1992. On appeal, however, the Estate focuses on the 2007 amendment to KRE 702 that adds the requirement that the expert testimony be based on “sufficient facts or data,” be “the product of reliable principles and methods” and that the witness has “applied those principles and methods reliably to the facts of the case.” KRE 702 (2007). We will address each in turn.

The Estate’s objection at trial— that because Dr. Gay is not a nurse, he lacks training, education or experience that would make him competent as an expert — is without merit. “Any lack of specialized training goes only to the weight, not to the competency, of the evidence.” Washington v. Goodman, 830 S.W.2d 398, 400 (Ky.App.1992). Furthermore, there are “numerous reported cases where a physician has been held qualified to express an opinion on medical matters outside his area of expertise.” Owensboro Mercy Health System v. Payne, 24 S.W.3d 675, 677-78 (Ky.App.1999) (citations omitted). More significantly, however, we do not believe Dr. Gay’s testimony was outside his area of expertise. He testified that he is a board certified pediatrician practicing at Vanderbilt University. He completed a pediatric residency at Vanderbilt Children’s Hospital in 1981 and, since 1985, not only has he regularly treated children like Kyndall, he has taught his specialty as a faculty member at Vanderbilt, spending the bulk of his work life in that hospital-based practice environment, including the supervision of nurses. Dr. Gay testified that he is familiar with the standard of care expected of hospitals and their nurses under the circumstances faced by the nurses in this case. Such qualifications have been deemed sufficient by this Court to render a physician qualified. Id. The trial court found they were sufficient in this case.

On appeal, the Estate modifies its argument. Before us, the Estate points to the additional language of KRE 702 requiring that

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Bluebook (online)
282 S.W.3d 336, 2009 Ky. App. LEXIS 52, 2009 WL 961113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tapp-v-owensboro-medical-health-system-inc-kyctapp-2009.