FRANKFORT, Ky. (Legal Newsline) - A woman who settled part of her medical malpractice lawsuit for $1.2 million can’t drag the settling defendants back into the case while refusing to return the money, a Kentucky appeals court ruled.
Kimberly Johnson sued the Fleming County Hospital District, her doctors and their insurers for allegedly failing to diagnose her breast cancer in time. After she signed a settlement with the hospital’s insurers, a defense lawyer turned over a screenshot from the hospital’s computer system showing Johnson had never been notified of a scheduled biopsy. The lawyer said he didn’t produce the screenshot earlier because he couldn’t find anybody to authenticate it as a medical record.
Johnson asked the court for permission to file an amended complaint, adding the insurers to her ongoing malpractice lawsuit and accusing them of fraud, obstruction of justice, evidence spoliation and intentional inflection of emotional stress. The court rejected her request in 2019, saying Johnson couldn’t proceed with a lawsuit against the insurers unless the settlement was set aside and she paid back the $1.2 million they had paid her.
“Instead, Johnson wanted to set it aside and keep the money,” the appeals court said. Given her position, the trial court rejected her request to amend the complaint. Johnson then filed a separate lawsuit against the insurers, which the trial judge dismissed as an attempt to get around the previous court orders.
In a July 23 decision, the Kentucky Court of Appeals upheld the trial court’s decision. While the trial judge was “troubled by counsel’s decision not to turn over the screenshot during discovery,” the appeals court said, Johnson’s refusal to return the settlement proceeds made her request moot.
While there are exceptions to the general rule prohibiting plaintiffs from splitting their claims into separate lawsuits, the appeals court ruled, they don’t apply here. The screenshot turned up while the malpractice lawsuit was still pending, the court said, so the plaintiff should have raised them there rather than attempting to pursue them in a new case against the companies she’d already settled with.