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Urgent Care Physician; Patient Kidney Failure; Informed Consent


A sixteen-year-old boy suffered from nausea and vomiting, and an acute headache. He sought treatment at an urgent care clinic. The treating physician diagnosed the boy with gastritis, a condition in which the stomach lining becomes inflamed and irritated. The doctor administered Phenergan, an anti-nausea medication; Rocephin, an antibiotic; and a single 60 mg injection of Ketorolac Tromethamine (“Ketorolac”), a non-steroidal anti-inflammatory drug. After receiving treatment, the boy went home.

 

The next day, the boy was still experiencing nausea and vomiting and he returned to the urgent care clinic. The attending physician sent him to the emergency room. A CT scan was performed which revealed that he was suffering from renal cortical necrosis, an irreversible form of kidney failure. He was then transferred to Vanderbilt University Medical Center. While there, Miller was also diagnosed with pancreatitis. He remained at Vanderbilt University Medical Center for three weeks receiving three weekly treatments of dialysis. He then went home and began peritoneal dialysis each night. Approximately fifteen months later, he received a kidney transplant from a deceased donor.

 

The boy filed a medical malpractice suit against the treating physician. He alleged that the treating physician dispensed a toxic dose of Ketorolac, causing him to suffer renal failure.

 

Prior to trial, the treating physician submitted a motion for summary judgment on the issue of informed consent. It was the treating physician's position that Kentucky law did not require her to obtain the boy's informed consent because Ketorolac is a therapeutic drug not falling within the purview of the statute governing informed consent. The trial court denied the treating physician's motion and the case proceeded to trial.

 

It was the boy's position that the treating physician knew the risks associated with prescribing Ketorolac to a dehydrated patient, but proceeded anyway. The boy presented proof that the FDA had posted a Black Boxed Warning concerning Ketorolac. It stated that the drug is contraindicated in patients with advanced renal impairment, especially in those patients at risk for renal failure due to dehydration. The boy's expert witnesses opined that the boy was dehydrated prior to receiving the Ketorolac injection.

 

On the other hand, the treating physician put forth evidence that the boy did not appear to be dehydrated or volume depleted at the time of treatment. It was the treating physician's defense that pancreatitis was the cause of the boy's renal failure. During the trial, the treating physician moved the court to enter a directed verdict on the boy's informed consent claim. The boy did not object or respond to the treating physician’s motion. The trial court agreed with the treating physician that Kentucky law does not allow for a separate informed consent claim based on the administration of a therapeutic drug. The trial court also found that the boy had failed to present expert testimony that the treating physician deviated from the standard of care by not obtaining the boy's informed consent. For those reasons, the trial court ruled that the boy could not present to the jury his informed consent claim.

 

During his case-in-chief, the boy called an Atlanta-based pediatric gastroenterologist as an expert witness. The expert explained that pancreatitis would only cause irreversible kidney failure if it was classified as severe. The expert then identified and applied six different scales used to rate the severity of pancreatitis. In his opinion, the expert believed the boy's pancreatitis was mild to moderate. Consequently, the expert testified that pancreatitis was not the cause of the boy's renal failure. The expert opined that the Ketorolac injection was to blame.

 

The day after this expert’s testimony, a juror approached the bench and posed a question. The juror asked, “How long does pancreatitis have to be present in order for kidney failure to happen?” At this point, the boy was still presenting his case-in-chief. The boy informed the court that he would like to recall the expert to answer the juror's question. Unfortunately, the expert had already returned to Atlanta. The boy suggested that the parties depose the expert via speaker phone and then he would offer any relevant testimony on rebuttal. The trial judge ruled that the boy could not present the expert as a witness upon rebuttal.

 

The jury returned a verdict in favor of the treating physician. The instructions indicated that the jury did not believe that the Ketorolac injection was a substantial factor in causing the boy's kidney failure. The Warren Circuit Court entered a final judgment, which the boy appealed. The treating physician also cross-appealed the trial court's order denying her motion for a directed verdict and motion for summary judgment as to the boy's informed consent claim.

 

The Court of Appeals consolidated the matters. The boy presented the Court of Appeals with two issues. First, he argued that the trial court abused its discretion in disallowing the testimony of an expert witness to rebut or answer a juror's question. Secondly, he contended that the trial court erred in ruling that he could not present to the jury his claim of negligence based on the treating physician's failure to obtain informed consent. The Court of Appeals declined to address the boy's first issue, instead finding that the trial court committed reversible error as to the second issue. In regards to the treating physician's appeal, the Court of Appeals decided that the trial court properly denied both motions. The treating physician appealed.

 

The Supreme Court of Kentucky reversed the Court of Appeals and reinstated the judgment of the Warren Circuit Court. The court held that the trial court acted well within its discretion in prohibiting the boy from recalling his expert since his anticipated testimony did not qualify as rebuttal evidence and was arguably irrelevant. The boy failed to preserve for appeal the issue of whether the trial court erred in barring the boy from presenting to the jury his claim that the treating physician failed to obtain his informed consent.

 

The trial court acted well within its discretion in prohibiting the boy from recalling his expert since his anticipated testimony did not qualify as rebuttal evidence and was arguably irrelevant. It was within the sound discretion of the trial court to regulate the order of presentation of proof during a trial. Rebuttal evidence was evidence that tended to counteract or overcome the legal effect of the evidence for the other side. The sole reason the boy desired to recall the expert was to have him answer the juror's question, not to discredit any proof put on by the treating physician. In fact, the trial court did not allow witnesses for the defense to answer the juror's question. Thus, there would be no issue for the boy to rebut. Furthermore, rebuttal testimony offered by the plaintiff should rebut the testimony brought out by the defendant and should consist of nothing which could have been offered in chief. The boy was well aware of the treating physician's causation theory. If the boy believed the duration of pancreatitis was an important topic to explore, he should have done so in his case-in-chief. To seek answers to questions posed by jurors after a witness has been discharged invited confusion and chaos. At no point did the boy’s expert state that the duration of the boy's pancreatitis was a factor to take into account. Likewise, while the treating physician's experts testified that renal failure is a complication of pancreatitis, none of her experts discussed the effects of the disease's duration. Accordingly, the court found that the length of time the boy suffered from pancreatitis was not a critical issue.

 

The boy failed to preserve for appeal the issue of whether the trial court erred in barring the boy from presenting to the jury his claim that the treating physician failed to obtain his informed consent. Whether an informed consent claim could be based on the administration of a therapeutic drug was a novel question. However, the court refrained from evaluating the merits of this issue because the court found it was unpreserved for review. The boy failed to respond or object to the treating physician's motion for a directed verdict. Moreover, pursuant to CR 51(3), the boy failed to tender to the trial court an informed consent jury instruction or an objection to the trial court's final instructions. Thus, this issue was unpreserved and the Court of Appeals' opinion was reversed.

 

The Supreme Court of Kentucky reversed the Court of Appeals and reinstated the judgment of the Warren Circuit Court in favor of the treating physician.

 

See: Fraser v. Miller, 2014 WL 1512227 (Ky., April 17, 2014) (not designated for publication).

 

See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication

 

See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care

 

See also Medical Law Perspectives, June 2012 Report: Too Much, Too Little, Too Late: Injuries from Delays and Failures to Perform CT Scans or Overexposure to Radiation 

 

 

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