White v. Norton Healthcare, Inc.

435 S.W.3d 68, 2014 WL 2619973, 2014 Ky. App. LEXIS 104
CourtCourt of Appeals of Kentucky
DecidedJune 13, 2014
DocketNo. 2013-CA-000023-MR
StatusPublished
Cited by4 cases

This text of 435 S.W.3d 68 (White v. Norton Healthcare, 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
White v. Norton Healthcare, Inc., 435 S.W.3d 68, 2014 WL 2619973, 2014 Ky. App. LEXIS 104 (Ky. Ct. App. 2014).

Opinion

OPINION

JONES, Judge:

Appellant Lavonne White, in her individual capacity and as guardian and best friend for her minor daughter, D.R.W. White (Daughter), asks us to review the Jefferson Circuit Court’s order granting summary judgment in favor of Appellees Norton Healthcare, Inc. (Norton), Kosair Children’s Hospital (Kosair), Dr. Wayne Rice, Dr. Alfonso Nichols, Elizabeth A. Hattab, RN., Charlotte Abrams, RN., and Dr. Jennifer Le. For the reasons set forth below, we affirm.

I. Facts and Procedural Background

On the evening of Saturday, December 19, 2009, White took Daughter to Kosair’s emergency room (ER) for treatment. White told ER personnel that Daughter was “out of control.”

Psychiatric Triage Nurse Elizabeth Hat-tab performed an initial psychiatric nursing evaluation of Daughter, at which time Daughter reported that White “hits her with a belt and today pushed her and scratched her arm.” Nurse Hattab noted that a scratch was “evident” on Daughter’s upper right arm. Nurse Hattab then interviewed White. White confirmed that she had physically disciplined Daughter with a belt, and further reported that Daughter only responds to physical force, and that “[m]y child seeks pain.” Additionally, White reported that Daughter may have been sexually abused by the son of a friend and White indicated that she suspected a history of mental illness in the family.

Based on her initial examination and interviews, Nurse Hattab suspected that Daughter may have been abused. As a result, she completed a suspected abuse/neglect reporting form and contacted Child Protective Services (CPS). Her records indicate that she called CPS at 8:20 p.m. that evening and was told by CPS personnel that the on-call caseworker was unavailable, but would return her call. Before she left for the evening, Nurse Hattab noted in the triage form that a return call from CPS was expected, but had not yet been received.

Dr. Wayne Rice, an ER physician, also examined Daughter while she was in the ER. Dr. Rice’s notes indicate that Daughter reported that White hit her with a belt, and White confirmed this happened regularly. On examination, Dr. Rice noted linear abrasions on Daughter’s upper left arm, the back of her left thigh, and mid back. As part of his examination, Dr. Rice photographed the areas he believed indicated possible abuse. Dr. Rice noted that a nurse had contacted CPS, but CPS had not yet contacted Kosair.

[71]*71Nurse Hattab and Dr. Rice concurred that the best course of action would be to admit Daughter to 6C, the Ackerly (psychiatric) Unit for further observation. Daughter was admitted to the Ackerly Unit by Dr. Shelby, the on-call physician, at 11:00 p.m. that evening.1

The following morning, Sunday, December 20, 2009, White approached Nurse Charlotte Abrams in the Ackerly Unit and requested to take Daughter home. Nurse Abrams contacted Dr. Alfonso Nichols, the Medical Director of the Ackerly Unit. Nurse Abrams informed Dr. Nichols that Daughter had been admitted the previous evening after White brought her to the ER and emergency personnel suspected that Daughter had been abused by White. Nurse Abrams further informed Dr. Nichols that CPS had been contacted, but not yet responded. Based on this information, Dr. Nichols, by telephone, ordered that a 72-hour hold be placed on Daughter; Nurse Abrams then completed an involuntary custody form hold. When hospital personnel refused to release Daughter over to White, she became upset and had to be escorted out of the hospital.

Later that day, Dr. Jennifer Le, the child psychologist on duty, interviewed Daughter for approximately two hours and conducted a physical examination. According to Dr. Le’s notes, Daughter reported that both of her parents hit her with the non-buckle end of a belt, up to three times per week and hit her on the legs, buttocks, and lower and upper back. Dr. Le’s physical examination revealed abrasions and scars on Daughter’s arms, legs, and upper body. Dr. Le discussed her findings with White who admitted striking Daughter with a belt. Dr. Le completed another suspected abuse/neglect reporting form and faxed it to CPS that evening.

The following day, Monday, December 21, 2009, a CPS case worker interviewed Daughter. The CPS worker discharged Daughter to be released to her parents. White, however, unwilling to wait for Daughter to be medically discharged, signed Daughter out against medical advice (AMA). The following day, Dr. Le filed another suspected abuse/neglect reporting form because White had removed Daughter from the hospital AMA.

On December 20, 2010, White, individually and on behalf of Daughter, filed a complaint in Jefferson Circuit Court against Drs. Rice, Le, and Nichols; Nurses Hattab and Abrams; Kosair; and Norton alleging medical negligence and violation of KRS2 620.080, the statute that governs reporting suspected child abuse.

On September 28, 2011, the trial court entered an order granting each of the defendants named in White’s complaint summary judgment. The trial court reasoned that White had not satisfied her burden of proof of any alleged medical negligence, and that there was no evidence that any of the named defendants acted in bad faith. The trial court’s order states:

[I]t is impossible to conclude that any of the Defendants acted in bad faith individually or in concert, with respect to examining [Daughter], reporting suspected abuse to CPS, placing the involuntary hold on [Daughter] or discharging her. At the hearing, when asked to identify bad faith by Defendants, Plaintiff’s counsel read various portions of the Complaint. He point out Ms. White’s inability to leave with [Daughter] whenever she wanted; Dr. Le’s conducting a physical examination of [Daughter] with[72]*72out Ms. White’s consent; Dr. Le’s photographing injury sites consistent with suspected abuse; Dr. Le’s accessing [Daughter’s] medical records after her discharge; and the failure to inform Ms. White of her rights under KRS 645.030(1) as examples of bad faith violation of the statute. However, contrary to the Plaintiffs’ argument otherwise, these allegations, in and of themselves, do not tend to show bad faith. The Plaintiffs are unable to explain how these actions indicate what the real motivation was other than taking steps to protect a child whose parent brought her to the emergency room for behavioral issues that may be related to abuse at home. Indeed, under the Plaintiffs interpretation of the statutes, a health care provider must ask the person suspected of abuse for permission to conduct an examination that could uncover evidence that person is abusing the child. This is a conclusion the Court is confident the Legislature did not intend.

White filed a motion to alter, vacate or amend arguing summary judgment was premature and that the named defendants did not comply with the statutory provisions of KRS 620.080-620.050, including the provisions regarding an involuntary hold. The trial court denied White’s motion. This appeal followed.

II. STANDARD OF REVIEW

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435 S.W.3d 68, 2014 WL 2619973, 2014 Ky. App. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-norton-healthcare-inc-kyctapp-2014.