Was hospital liable for failure to take more x-rays?(Hospital Law Case of the Month)

CASE ON POINT: Carmicle v. Casey County Hospital, 2008-KY-1210.095 (12/5/2008)-KY

ISSUE: In this unusual Kentucky case the courts were confronted with whether a hospital was negligent in failing to x-ray a greater area of the patient which would have allowed a diagnosis that the patient had a fracture, which have immediately prompted a call to the appropriate specialist to treat the patient. In addition, the patient included in her suit against the hospital allegations that the hospital was negligent in failing to have appropriate protocols in place to ensure that what happened to her would not occur. However, she may have failed in this regard by not having sufficiently qualified expert witnesses to testify as to the need for and/or whether the failure not to have protocols in place indicated that the hospital was negligent.

CASE FACTS: On November 27, 2002, Linda Carmicle was involved in a motor vehicle accident. Following the accident, she received treatment at Casey County Hospital and Westlake Regional Hospital for complaints of pain in her neck, back, and legs. During the course of her treatment, Carmicle underwent cervical spine x-rays. After her release from the hospital Carmicle sought additional treatment with a chiropractor, Dr. Erica Montgomery, who took additional cervical spine x-rays, which revealed a fractured vertebra. According to Carmicle, Dr. Montgomery advised her that the x-rays from the hospital did not extend to the level of the fracture Carmicle sustained. Dr. Montgomery referred Carmicle to Dr. Yamamoto, a neurosurgeon. Dr. Yamamoto also noted the cervical spine fracture and ultimately performed surgery. After her discharge from the hospital, Carmicle continued to suffer from low back and leg pain. She ultimately came under the care of a Dr. Moore, who treated her for her lower extremity complaints. According to Carmicle, Dr. Moore stated that she suffered a hematoma and sheer force injury to her legs and, because those injuries were not initially treated, they were permanent. Carmicle sued the hospitals as well as those who rendered treatment to her at the hospitals. Specifically, she alleged that the physicians failed to take x-rays that would have revealed a fracture to her lower cervical spine and failed to treat her for complaints of back and right leg pain. Further, she alleged that hospital staff members failed to consult with appropriate specialists or perform necessary tests. The hospitals and other defendants filed motions to dismiss the complaint The trial court granted the defendants' motions. Carmicle appealed.

COURT'S OPINION: The Court of Appeals of Kentucky affirmed that portion of the trial court's order granting summary judgment that disposed of Carmicle's claims arising from allegation that the hospitals violated the standard of care related to their rules, procedures, or protocols. The court reversed the trial court's order for summary judgment in all other respects and remanded the case back to the trial court.

LEGAL COMMENTARY: Despite the fact that Carmicle identified two experts whom she represented would address hospital protocol and healthcare administration, and set for the subject matter each expert would address, she did not state what opinion either physician had regarding the specific standard of care that applied to her claim or how any such standard of care may have been breached. Furthermore, Carmicle did not set forth the grounds for any such opinions. Therefore, the court found that the trial court was not guilty of any abuse of discretion and the trial judge's order granting summary judgment for the defendants had to be affirmed. The court also noted that Carmicle had not taken any depositions of any of the physicians or of any hospital personnel in support of her claim. As to the other aspect of her case Carmicle, following Dr. Montgomery's deposition, which was taken by the defendants, provided copies of her x-rays from Casey County Hospital to Dr. Montgomery and he updated his opinion. Carmicle then supplemented her answers to interrogatories with that opinion. The defendants contended that Carmicle did not go far enough because she did not take their depositions and offer those depositions to Dr. Montgomery for review. However, the court noted, nothing in the Civil Rules required Carmicle to do so. Under the Civil Rules, Carmicle adequately identified Dr. Montgomery and set forth what his opinion was and the basis for that opinion. That was all she was required to do. The court observed that while Dr. Montgomery's opinion might prove wanting in terms of credibility, that was an issue for the trier of fact, not the court, to determine on a motion for summary judgment. The court concluded that, when viewed in a light most favorable to Carmicle, the opinion of Dr. Montgomery and Dr Silverman created an issue of material fact. The trial court's order for summary judgment in favor of the defendants was an abuse of the trial court's discretion and was properly reversed.

A. David Tammelleo JD Editor & Publisher

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars oil medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition ill Martindale-Hubbell's Bar Register of Preeminent Lawyers. Marquis Who's Who in American Law. Who's Who in America and Who's Who in the World.

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