Ky. SC affirms $500K med-mal verdict

Jessica M. Karmasek Oct. 29, 2010, 10:52am


FRANKFORT, Ky. (Legal Newsline) - The Kentucky Supreme Court last week affirmed the judgment of a lower court in favor of a couple who filed a wrongful death action following the stillborn birth of their child.

The appellees, Lisa Ann and Aaron Hillman, had received a judgment in Bell Circuit Court in their lawsuit against the appellant, Dr. Jerry Woolum, and his medical practice.

However, the appellant challenged the judgment on four grounds: two evidentiary admissions, the denial of a directed verdict, and juror misconduct.

The state's high court, in their opinion filed Oct. 21, found no reversible error, and upheld the judgment.

The Hillmans alleged medical malpractice against Woolum for his treatment of the pregnancy after the mother, Lisa Ann, was diagnosed with pregnancy-induced hypertension, also known as preeclampsia.

As of July 2002, everything had appeared normal with the pregnancy, according to an ultrasound. At the time, Woolum set Lisa Ann's due date as Sept. 16.

When she attended her regularly scheduled appointment in August 2002, she learned she had a heightened blood pressure reading of 140/100. At the time, the doctor diagnosed her condition as pregnancy-induced hypertension.

Woolum informed her that her condition was dangerous and could lead to toxemia and seizures, and instructed her to stay on bed rest and visit him biweekly or immediately if she noticed any problems. Nonetheless, the doctor decided not to advance her due date to before 37 weeks.

Over the next few weeks, the woman's condition worsened. Eventually, both she and the doctor agreed to deliver the child on Sept. 3, almost two weeks sooner than the original due date.

On the night of Sept. 2, prior to her scheduled appointment, Lisa Ann went into labor.

After checking into the hospital, nurses could not find a heartbeat for the child. It was then delivered stillborn.

Woolum did not recommend an autopsy, but concluded the child had been dead for at least 24 hours. He told the couple at the time that the cause of death was Lisa Ann's preeclampsia, although at trial he offered an alternative theory.

The couple then filed their wrongful death action, alleging that the doctor committed medical malpractice by postponing delivery after Lisa Ann had been diagnosed with pregnancy-induced hypertension.

It was at that time that the couple's doctor countered that the cause of death was a genetic disease, trophoblasts, which affected the placenta and which was untreatable.

In a 9-3 verdict, the Bell County jury found for the Hillmans, awarding them $500,600 in damages.

A new trial was then ordered on a matter unrelated to the appeal at issue. After the parties reached a settlement on that matter, the court entered a final judgment, which was subsequently appealed.

The state's appeals court affirmed on all issues implicating liability, including two claims of evidentiary error, the appellant's motion for a directed verdict, and his claim of juror misconduct.

The Court then granted further review on those issues.

Deputy Chief Justice Mary C. Noble, who authored the Court's opinion, wrote that the doctor contended the couple presented insufficient evidence that the fetus was viable and therefore he was entitled to a directed verdict.

However, the Court noted, the couple did present expert testimony that a fetus delivered at 31 weeks -- the point at which the doctor discovered Lisa's high blood pressure -- could survive.

"With direct expert testimony that the fetus was viable, there is no doubt the evidence was sufficient for the jury to conclude the same," Noble wrote.

Woolum's other claim was of juror misconduct -- although he admitted any error was through no fault of the jurors themselves.

During jury deliberations, two jurors became ill, complaining of chest pains and blood pressure spikes. They were sent to the hospital for treatment. Deliberations were postponed for six days until the jurors returned from their treatment.

Being so, Woolum contended the delay in deliberations was grounds for mistrial and that the coincidental onset of juror high blood pressure in a trial about the treatment of high blood pressure biased the jury against him.

Woolum's first point is actually a due process claim, the Court said.

"The court individually questioned each juror whether he or she had been affected in any way by the delay and no problems were reported," Noble wrote.

As for his second theory of juror misconduct, the Court ruled that "no bias can be discerned from the coincidental development of high blood pressure among two jurors."

In fact, they noted that the two jurors to have experienced high blood pressure fell on opposite sides of the verdict.

"As that split suggests, there is no cause to believe a juror with high blood pressure is more or less sympathetic to a doctor's treatment of high blood pressure during pregnancy," the Court determined.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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