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New Theories at Second Trial Not Ground for New Trial or Sanctions


A man fell and injured the upper left extremity. Four days later, a doctor performed surgery to repair a left humerus fracture. The fracture did not heal.

 

Three months later, the doctor performed a second surgery. Following that surgery, the man continued to experience pain.

 

About seven months later, the man sought treatment from another doctor. The second doctor prescribed antibiotics referred him to a multispecialty academic hospital out-of-state.

 

The man underwent two additional surgeries at the multispecialty academic hospital.

 

The man sued the first doctor for medical malpractice. The complaint alleged two primary theories of liability. First, the doctor made mistakes during the initial surgery that resulted in the failure of the fracture to heal. Second, following the second surgery, the doctor failed to timely identify an infection, which necessitated the two surgeries at the multispecialty academic hospital.

 

The case proceeded to a jury trial. The McCracken Circuit Court ended the proceedings in a mistrial because the doctor mentioned insurance several times in violation of the trial court’s order. Following the mistrial, the man moved the trial court to find the doctor in contempt, civilly and commonly, and for the imposition of sanctions and costs in the amount of $64,483.82. In support of the motion, the man argued that the doctor intentionally and repeatedly violated the trial court’s orders not to mention insurance, which forced the trial court to end the proceedings with a mistrial.

 

The doctor also filed a motion for sanctions and costs in the amount of $42,048.80. In support of the motion, the doctor argued that the man’s counsel was responsible for the mistrial because his questioning left the doctor with little choice but to mention insurance. The trial court abated the parties’ motions for sanctions and costs pending completion of a second jury trial.

 

Before the second trial, the trial court ordered the parties not to offer any evidence or theories of liability or defense that had not been previously admitted. During the doctor’s opening statement, the doctor’s counsel stated that the man developed an antibiotic resistant staph infection, MRSA, as a result of the second doctor’s treatment. The man objected, arguing that the statement about MRSA had violated the trial court’s order prohibiting either party from raising any new theories. The trial court permitted the doctor’s counsel to finish his opening statement.

 

After a hearing on the issue, the trial court admonished the jury to disregard any statements by attorneys during their opening arguments that were not supported by evidence in the record. The trial court specifically precluded the doctor from presenting any evidence that (1) the man had a second fracture between the last visit with the doctor and the first visit at the multispecialty academic hospital, (2) the sclerotic bone found in the man’s knee contributed to his shoulder condition, (3) the use of two plates by physicians at the multispecialty academic hospital to repair the fracture was improper, and (4) the physical therapist was an expert witness. Following some testimony, the trial court also precluded the doctor from presenting any evidence that there was more than one screw below the fracture line.

 

Counsel for the doctor repeatedly asked witnesses whether there were three screws below the fracture line. After one of these instances, the trial court admonished the jury that there had been no testimony that there were three screws below the fracture line and they should disregard any such statements. Immediately after the admonishment, counsel for the doctor said, “Ladies and gentlemen, you will have the x-rays. Take a look ... and you will see that below the fracture line there are three screws that go cortices to cortices.”

 

The jury returned a verdict in favor of the doctor. The man moved for judgment notwithstanding the verdict. The trial court denied that motion for two reasons. First, the man had not made a motion for directed verdict at the close of all proof. Second, despite the man’s argument that the doctor’s attorney “made inappropriate comments” and “elicited inadmissible evidence,” there was “sufficient evidence otherwise to have presented the case to the jury.”

 

The man moved for sanctions. The trial court granted the man’s motion for sanctions and awarded the man costs and attorney fees totaling $58,858.82. The trial court found the doctor personally liable for the sanctioned amount.

 

The man moved for a new trial. The doctor filed a motion to vacate the sanctions. The trial court denied the man’s motion for new trial and the doctor’s motion to vacate the sanctions.

 

The Court of Appeals of Kentucky reversed the trial court’s denial of the man’s motion for new trial. The appellate court affirmed the trial court’s imposition of sanctions against the doctor. The appellate court held that the introduction of new theories and defenses during the second trial was so egregious and permeated the trial to such an extent that the trial court’s failure to grant a new trial was an abuse of discretion.

 

The Supreme Court of Kentucky reversed the court of appeals and vacated the trial court’s imposition of sanctions. The court held that the trial court did not err in denying the man’s motion for a new trial and the trial court erred in assessing sanctions against the doctor.

 

The trial court did not err in denying the man’s motion for a new trial. A jury is presumed to follow an admonition. The trial court correctly admonished the jury that what the attorney said in the opening statements was not evidence and that the jurors should rely only on the evidence. The trial court’s one day delay in admonishing the jury was not in error. The trial court was in the best position to judge the adequacy of its admonition and the impact on the jury of any misconduct by the doctor’s counsel during opening statement. Regarding the doctor’s testimony about the number of screws below the fracture line, the man objected to the testimony, the court sustained his objection, and the man asked for no further relief. Regarding the doctor’s counsel’s statements during closing argument regarding the number of screws below the fracture line, the doctor’s counsel’s statements amounted to misconduct and the trial court admonished the jury. Whether the doctor placed one or three screws below the fracture line had no direct bearing on the argument that the doctor had failed to diagnose an infection. The court concluded that the trial court acted within its discretion in finding that the man had a fair trial despite the introduction of new theories and defenses during the second trial.

 

The trial court erred in assessing sanctions against the doctor. The trial court did not state in its order granting sanctions that it was holding the doctor in contempt and it did not state whether the doctor could purge himself of contempt. Following the second trial, the trial court’s order stated that it had treated the matter as civil contempt but decided to wait to impose sanctions to see if the doctor would cure or mediate his contempt. After the second trial the trial court converted its finding of civil contempt to criminal contempt. The court reversed and vacated the trial court’s order of sanctions for two reasons. First, although the trial court stated after the second trial that it agreed with the man that the doctor was in contempt following the first trial, the trial court never advised the doctor of that finding. After the first trial, the trial court merely stated that it would take the man’s motion for sanctions under advisement. Second, the trial court never advised the doctor that he could purge himself of his contempt or how he could do so. To constitute civil contempt, the party held in contempt must have the ability to purge himself of contempt at the time the sanction is imposed. The court found that because the trial court did not impose a sanction until after it was too late for the doctor to purge that contempt, the trial court’s order imposing sanctions on the doctor had to be vacated.

 

The Supreme Court of Kentucky reversed the court of appeals’ reversal of the trial court’s denial of the man’s motion for new trial and vacated the trial court’s imposition of sanctions against the doctor.

 

See: Jefferson v. Eggemeyer, 2017 WL 1536254 (Ky., April 27, 2017) (not designated for publication).

 

See also Medical Law Perspectives, June 2016 Report: How Risky Is Going to the Hospital? The Dangers and Liabilities of Healthcare-Associated Infections

 

See also Medical Law Perspectives, January 2012 Report: Hospital-Acquired Infections: Who Is Liable and Why?

 

 

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