Jewish Hospital, an Assummed Name of Jewish Hospital & St. Mary's Healthcare, Inc. v. Karen Reddington, Individually ( 2023 )


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  •                    RENDERED: MAY 12, 2023; 10:00 A.M.
    NOT TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2022-CA-0579-MR
    JEWISH HOSPITAL, AN ASSUMED
    NAME OF JEWISH HOSPITAL & ST.
    MARY’S HEALTHCARE, INC.; AND
    KENTUCKYONE HEALTH, INC.                                         APPELLANTS
    APPEAL FROM JEFFERSON CIRCUIT COURT
    v.                HONORABLE MITCH PERRY, JUDGE
    ACTION NO. 17-CI-000253
    KAREN REDDINGTON,
    INDIVIDUALLY; AND KAREN
    REDDINGTON, AS EXECUTRIX OF
    THE ESTATE OF DONALD PATRICK
    REDDINGTON, SR.                                                    APPELLEES
    OPINION
    AFFIRMING
    ** ** ** ** **
    BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND ECKERLE,
    JUDGES.
    THOMPSON, CHIEF JUDGE: Jewish Hospital, an assumed name of Jewish
    Hospital & St. Mary’s Healthcare, Inc., and KentuckyOne Health, Inc.
    (“Appellants”), appeal from a judgment of the Jefferson Circuit Court entered on
    March 23, 2022, and from the circuit court’s order denying Appellants’ post-trial
    motions entered on April 29, 2022. Appellants argue that the circuit court erred in
    1) failing to grant summary judgment; 2) giving the jury improper negligence and
    missing evidence instructions; 3) allowing the use of privileged documents
    contrary to the law of the case; and, 4) improperly allowing the jury to hear
    evidence of Appellants’ subsequent remedial policy change. Appellants seek an
    opinion reversing the judgment on appeal and remanding the matter for a new trial.
    Having heard the oral arguments of counsel, and after careful review, we find no
    error and affirm the judgment on appeal.
    FACTS AND PROCEDURAL HISTORY
    On April 29, 2016, Donald Reddington (“Mr. Reddington”) had
    surgery at Appellants’ hospital to repair a torn rotator cuff. After surgery, Mr.
    Reddington developed complications and was intubated. He was admitted to the
    intensive care unit (“ICU”). On May 10, 2016, Mr. Reddington received a
    tracheostomy and began to make some improvement.
    About 10 days later, and based on his improvement, Mr. Reddington’s
    treating physician, Dr. John Wesley McConnell, transferred Mr. Reddington to an
    intermediate care floor. Mr. Reddington’s pulse oximetry was monitored every
    four hours.
    -2-
    On May 22, 2016, and while monitored by cardiac telemetry, Mr.
    Reddington’s tracheostomy tube became dislodged and he began to asphyxiate.
    Mr. Reddington’s primary room nurse, Rachel Ruppel, was in the cafeteria when
    the tracheostomy tube became dislodged. Ms. Ruppel would later state that she
    had previously handed off Mr. Reddington’s care to nurse Val McGee. Ms.
    McGee denied that Ms. Reddington’s care was handed off to her, and testimony
    was later adduced that Ms. McGee was with Ms. Ruppel in the cafeteria.
    Sometime after Mr. Reddington’s tracheostomy tube became
    dislodged, a cardiac alarm sounded at the nurses’ station which was about 11 feet
    from Mr. Reddington’s room. Nurse Angelique Kahn-Brown heard the alarm, and
    responded to Mr. Reddington’s room. She discovered that the tracheostomy tube
    was dislodged, and observed that Mr. Reddington was not breathing and his skin
    was blue. Ms. Kahn-Brown called a “code blue” to summon immediate assistance
    for Mr. Reddington. At about this time, Ms. Ruppel received a text that Mr.
    Reddington’s cardiac leads were off.
    Medical personnel responded to the code blue and attempted to
    resuscitate Mr. Reddington with CPR and ventilation. Ms. Kahn-Brown initiated
    these procedures before the code blue personnel arrived. As no appropriate
    tracheostomy tube was available, a new tube had to be retrieved from Appellants’
    central supply. Mr. Reddington was re-intubated and resuscitated, but had suffered
    -3-
    a hypoxic brain injury due to a lack of oxygen. He never regained consciousness,
    was subsequently removed from life support, and died.
    Several months later, Karen Reddington,1 individually and as the
    executrix of the estate of Mr. Reddington (“Appellee”), filed the instant medical
    negligence action against Appellants in Jefferson Circuit Court. Appellee sought
    damages for Mr. Reddington’s pain, suffering, and mental anguish, as well as for
    medical expenses, funeral costs, and loss of consortium. Protracted litigation
    followed, resulting in a jury trial conducted in February and March of 2022. The
    jury returned an award in favor of Appellee in the amount of $3,913,180.55.
    Appellants’ post-judgment motions were denied, and this appeal followed.
    ARGUMENTS AND ANALYSIS
    Appellants first argue that the Jefferson Circuit Court committed
    reversible error in failing to grant its motion for summary judgment. They assert
    that Appellee failed to produce any expert testimony related to medical causation,
    with Appellee instead arguing that its experts’ opinions on standard of care
    breaches were sufficient. According to Appellants, Appellee’s experts testified
    that they would not offer any opinion on causation at trial. At most, Appellants
    assert that Appellee’s experts testified as to physician conduct, for which
    Appellants were not responsible. Though Advance Practice Registered Nurse
    1
    Karen and Donald Reddington were married.
    -4-
    (“APRN”) Robert Rogers testified as to causation, Appellants argue that Rogers
    did not offer expert testimony to a reasonable degree of medical probability, and
    did not express an opinion that Appellants’ conduct was the proximate cause of
    Mr. Reddington’s death. The focus of Appellants’ argument on this issue is that
    without any sworn testimony on causation regarding Appellants’ conduct,
    Appellee was forced to cite its expert disclosures as the sole source of expert
    opinion on causation. Appellants argue that even when viewing the evidence in
    Appellee’s favor, summary judgment was appropriate because Appellee did not
    offer any affirmative expert evidence relating to causation and Appellants’
    conduct.
    In response, Appellee argues that Appellants failed to comply with
    Kentucky Rules of Civil Procedure (“CR”) 76.12(4)(c)(v),2 which requires at the
    beginning of the argument a statement with reference to the record showing
    whether the issue was properly preserved for review and, if so, in what manner.
    Appellee notes that Appellants failed to identify in either the Notice of Appeal or
    its brief any written order denying its July 21, 2021 motion for summary judgment.
    Further, Appellee contends that even if Appellants identified in the record an order
    2
    CR 76.12(4)(c)(v) was replaced by the Kentucky Rules of Appellate Procedure (“RAP”)
    32(A)(4) effective January 1, 2023. We will refer to these rules interchangeably as the context
    requires.
    -5-
    denying summary judgment, such an order would not be appealable because it was
    subsumed by the judgment.
    Appellants have not complied with the former CR 76.12(4)(c)(v),
    which required,
    [a]n argument conforming to the statement of Points and
    Authorities, with ample supportive references to the
    record and citations of authority pertinent to each issue of
    law and which shall contain at the beginning of the
    argument a statement with reference to the record
    showing whether the issue was properly preserved for
    review and, if so, in what manner.
    Appellants’ argument section of the brief does not contain a statement
    at the beginning with reference to the record showing whether each issue was
    properly preserved for review and, if so, in what manner.
    “A brief may be stricken for failure to substantially comply with the
    requirements of these rules.” RAP 31(H)(1). The rule requiring an argument
    section including a statement of preservation is a substantial requirement of RAP
    32 encompassed by RAP 31(H)(1).
    When a party fails to abide by the Rules of Appellate Procedure, we
    may choose “(1) to ignore the deficiency and proceed with the review; (2) to strike
    the brief or its offending portions . . . ; or (3) to review the issues raised in the brief
    for manifest injustice only[.]” Hallis v. Hallis, 
    328 S.W.3d 694
    , 696 (Ky. App.
    -6-
    2010) (citation omitted); see also Ford v. Commonwealth, 
    628 S.W.3d 147
    , 153-55
    (Ky. 2021).
    It appears that either the Jefferson Circuit Court made no ruling on
    Appellants’ summary judgment motion or, if it made the ruling, it was not
    designated in the appellate record. In either instance, as Appellants have not cited
    the circuit court’s response, if any, to its motion for summary judgment, there is
    nothing for us to review. The duty rested with Appellants to insist upon a ruling,
    and the failure to do so constitutes a waiver of the motion. Transportation Cabinet
    Bureau of Highways, Com. of Ky. v. Leneave, 
    751 S.W.2d 36
    , 38 (Ky. App. 1988).
    Per Hallis, 
    supra,
     we have reviewed Appellants’ argument on this
    issue for manifest injustice only. “Manifest injustice” requires a showing that a
    different result was probable, or that the error in the proceeding was of such
    magnitude as to be “shocking or jurisprudentially intolerable.” Martin v.
    Commonwealth, 
    207 S.W.3d 1
    , 3-4 (Ky. 2006).
    Appellants’ motion for summary judgment centered on causation, i.e.,
    its claim that even when viewed in a light most favorable to Appellee, Appellee
    could not present sufficient expert testimony at trial to demonstrate that
    Appellants’ negligence proximately resulted in Mr. Reddington’s death. Appellee
    tendered expert witness disclosures in pre-trial proceedings, and these experts
    testified at trial in a manner sufficient to persuade the jury on Appellee’s
    -7-
    negligence claim. Further, Appellants did not move for a directed verdict on
    causation at the close of Appellee’s evidence nor the close of all of the evidence.
    Having closely examined the record and the law on this issue, we do not find that a
    different result was probable, nor that the purported error in the proceeding was of
    such magnitude as to be shocking or jurisprudentially intolerable but for the
    alleged error. Martin, supra. Accordingly, we find no manifest injustice.
    Appellants next argue that the circuit court committed reversible error
    in improperly submitting Instruction No. 4 to the jury. This instruction stated:
    It was the duty of Jewish Hospital, by and through its
    employees, to establish and follow procedures regulating
    the administration of care to patients, including Donald
    Reddington, and to exercise the degree of care and skill
    ordinarily expected of a reasonable prudent hospital by
    and through its employees acting under similar
    circumstances.
    Appellants argue that this instruction improperly placed two duties on it – one
    specific and one general; that is, 1) to create and follow procedures regulating the
    administration of care to patients, and 2) to exercise ordinary care. Appellants
    contend that there is no duty under Kentucky law to create and follow procedures
    relating to patient care. In support of this proposition, Appellants direct our
    attention to Lake Cumberland Regional Hospital, LLC v. Adams, 
    536 S.W.3d 683
    ,
    695 (Ky. 2017). Appellants assert that simple, “bare bones” instructions are
    -8-
    required under Kentucky law, and that Instruction No. 4 demanded more of
    Appellants than the law requires. On this basis, they request a new trial.
    As with its first argument, Appellants failed to preserve this argument
    for appellate review as formerly required by CR 76.12(4)(c)(v). Again, our options
    are to ignore the deficiency and proceed with the review; to strike the brief or its
    offending portions; or, to review the issues raised in the brief for manifest injustice
    only. Hallis, supra. As it is clear from the record that Appellants challenged
    Instruction No. 4 below, and Appellee so acknowledges, sanctions for violating CR
    76.12(4)(c)(v), which include striking Appellants’ brief and dismissing his appeal,
    are not warranted. See Baker v. Campbell County Board of Education, 
    180 S.W.3d 479
    , 482 (Ky. App. 2005). Accordingly, we will consider this claim of error as if it
    were properly preserved.
    The focus of Appellants’ argument on this issue is its contention that
    the Jefferson Circuit Court erred in imposing upon Appellants a novel and
    improper duty to establish and follow patient procedures. We do not read Adams,
    supra, and the related case law as holding that such an instruction is improper.
    Rather than holding that an instruction on hospital policy or procedures is
    improper, Adams held that the plaintiff therein was not entitled to such an
    instruction.
    -9-
    Humana of Kentucky, Inc. v. McKee, 
    834 S.W.2d 711
     (Ky. App.
    1992), is instructive. In McKee, a teenage boy, by and through his parents, alleged
    that when he was an infant, Humana was negligent in failing to diagnose the
    child’s treatable metabolic disorder via a PKU test which proximately resulted in a
    lifetime of disability. After the boy and his father were awarded a multimillion-
    dollar judgment, Humana argued on appeal that a jury instruction improperly set
    forth two duties – one to establish and follow procedures and another to exercise
    ordinary care.
    In rejecting Humana’s argument, a panel of this Court determined that
    the phrase “in establishing and following procedures” in the instruction did not
    create an additional duty, but merely qualified Humana’s duty to exercise ordinary
    care. The Court said:
    Finally, Humana argues that Instruction No. 2b had the
    effect of demanding more of it than the law requires
    because it not only imposed a duty upon the hospital to
    exercise ordinary care in administering the PKU test, but
    it also imposed a duty upon the hospital to establish and
    comply with procedures regulating the administration of
    the test. However, we agree with the trial court that the
    phrase “in establishing and following procedures” in
    Instruction No. 2b did not impose a separate legal duty
    upon Humana but, rather, merely served as qualifying
    language which the court utilized in defining Humana's
    duty to exercise ordinary care. Moreover, we reject
    -10-
    Humana’s argument that Instruction No. 2b violates the
    dictates of Rogers v. Kasdan, supra, in any respect.[3]
    Id. at 722-23.
    McKee stands for the proposition that instructional language
    addressing the duty to establish and follow procedures merely qualifies the
    underlying duty of ordinary care. Such language does not create a new and
    unwarranted duty contrary to established precedent. Instruction No. 4 contained
    qualifying language similar to that addressed in McKee, and did not create a new
    duty unsupported by the case law. We find no error.
    Appellants’ next claim of error centers on physical and electronic
    records of Mr. Reddington’s cardiac function recorded in the minutes leading up to
    and during the code blue event. In addition to appearing on monitors, Mr.
    Reddington’s cardiac function was recorded electronically in his hospital room, at
    the nurse’s station, and in a remote telemetry unit. Appellants’ code sheet also had
    a space to preserve cardiac rhythm strips. Multiple lay and expert witnesses would
    later testify that common practice or policy was to print and/or electronically
    preserve such records after a code blue in order to memorialize the event. The
    3
    Rogers v. Kasdan, 
    612 S.W.2d 133
    , 136 (Ky. 1981), stated that a jury instruction “should not
    contain an abundance of detail, but should provide only the bare bones of the question for jury
    determination. This skeleton may then be fleshed out by counsel on closing argument.”
    -11-
    recordings at issue, however, were not retained by Appellants, and Appellants’
    failure to retain the records became an issue at trial.
    At the close of the proceedings, the Jefferson Circuit Court gave the
    jury Instruction No. 3, a spoliation instruction, which stated:
    If you find from the evidence that the cardiac rhythm
    strips or records should have been preserved for the
    period immediately prior to and during Mr. Reddington’s
    code event, and if you further find from the evidence that
    Defendant, Jewish Hospital, intentionally and in bad faith
    lost or destroyed the cardiac rhythm strips or records, you
    may, but are not required to, infer that the information
    recorded in the cardiac rhythm strips would be, if
    available, adverse to Defendants and favorable to the
    Plaintiff.
    Appellants argue that by issuing the Instruction No. 3, the circuit court
    committed reversible error because, 1) no documents were missing “utterly without
    explanation” as addressed in University Medical Center, Inc. v Beglin, 
    375 S.W.3d 783
    , 790 (Ky. 2011), as modified on denial of reh’g (Mar. 22, 2012); 2) Appellants
    were not on notice that the documents were relevant to any litigation when the
    records were not retained, which is consistent with Appellants’ customary retention
    policy; and, 3) there was no evidence of bad faith.
    Beglin does not support Appellants’ claim of error on this issue. In
    Beglin, a jury determined that University Hospital was negligent, by and through
    its employees, in causing the death of Jennifer Beglin. The jury awarded Beglin’s
    estate over $9,000,000 in compensatory and punitive damages. On appeal, the
    -12-
    hospital argued that the trial court’s spoliation instruction was erroneous. That
    instruction stated:
    If you find from the evidence that an incident report was
    in fact prepared by Nurse Barbara Cantrell recording
    material information about Mrs. Beglin’s surgery, and if
    you further find from the evidence that University
    Medical Center, Inc. d/b/a University of Louisville
    Hospital, intentionally and in bad faith lost or destroyed
    the incident report, you may, but are not required to, infer
    that the information recorded in the incident report would
    be, if available, adverse to University Medical Center and
    favorable to the plaintiffs.
    The Kentucky Supreme Court determined that the spoliation instruction in Beglin
    was proper. The Court stated that,
    [t]his remains the approved instruction in both criminal
    and civil cases. See Monsanto Co. v. Reed, 
    950 S.W.2d 811
    , 815 (Ky. 1997) (“Where the issue of destroyed or
    missing evidence has arisen, we have chosen to remedy
    the matter through evidentiary rules and ‘missing
    evidence’ instructions.”) All agree that the Sanborn[4]
    instruction accurately sets forth the elements necessary to
    permit a jury to draw an adverse inference from missing
    evidence.
    The text of the instruction further demonstrates
    two important factors relevant to our review. First, the
    instruction contemplates that the jury will engage in fact-
    finding (“If you find from the evidence . . .”), thereby
    implying that, like any other issue, if there is a factual
    dispute in relation to the issue, the jury will resolve the
    disagreement. This obviously implies that, under our
    law, the trial court does not make any final and
    4
    Sanborn v. Commonwealth, 
    754 S.W.2d 534
     (Ky. 1988), addressed the form for a missing
    evidence instruction.
    -13-
    conclusive factual determination upon the elements of a
    missing evidence instruction. Second, the adverse
    inference portion of the instruction is optional (“you may,
    but are not required, to infer . . .”). The approved
    instruction does not impose upon the jury a duty to draw
    the adverse inference even when it believes the evidence
    was intentionally disposed of.
    As a final note, the instruction did not require the
    jury to affirmatively indicate in the jury verdict forms its
    findings or determinations in relation to the instruction.
    We therefore do not know if the jury found for or against
    University Hospital under the instruction and,
    consequently, whether it had any impact at all on the
    verdicts. It is possible that the jury concluded that the
    report was lost innocently, and did not hold the
    disappearance of the report against University Hospital.
    Beglin, 375 S.W.3d at 788 (emphasis in original) (footnote omitted).
    Instruction No. 3, now before us, closely mirrors the instruction in
    Beglin. Like the Beglin instruction, Instruction No. 3 contains the same or similar
    “[i]f you find from the evidence” and “you may, but are not required to, infer”
    language. And as with the Beglin instruction, Instruction No. 3 did not require the
    jury to make a “yes” or “no” response, but allowed it to make or not make an
    inference from the evidence. Per Beglin, we are not persuaded by Appellants’
    argument that Instruction No. 3 was erroneous and requires a new trial.
    Appellants’ assertions that they were not on notice that the documents were
    relevant to any litigation when they were not retained, and that they did not act in
    bad faith, do not alter that conclusion.
    -14-
    Appellants’ next argument is that the circuit court erred in allowing
    the use of privileged documents at trial contrary to the law of the case. During the
    course of litigation, Appellants sought and received a writ of prohibition barring
    Appellee from entering Appellants’ root-cause analysis report (“RCA”) into
    evidence. Jewish Hospital v. Perry, 
    626 S.W.3d 509
     (Ky. 2021). The RCA
    process was initiated several weeks after Mr. Reddington’s death by then interim
    risk manager, Melanie Woodring, after it became apparent that Appellee might file
    a lawsuit. A group of hospital personnel, including Ms. Woodring, the Chief
    Medical Officer, the Director of Nursing, and the Assistant Nurse Manager –
    together referred to as the “Code E Team” – evaluated the care received by Mr.
    Reddington, reviewed the professional competency of hospital staff, and
    determined whether changes in care were warranted. Appellants argue that the
    circuit court improperly allowed evidence to be admitted at trial in violation of the
    writ.
    Again, Appellants have not preserved this matter for appellate review
    in the manner required by the former CR 76.12(4)(c)(v). See Hallis, 
    supra,
     for the
    reasons why compliance with the briefing rules is not merely a convenience to the
    Court, but is a necessity for carrying out the ends of justice. Per Hallis, we will
    review this claim of error for manifest injustice.
    -15-
    Appellants direct our attention to Kentucky Revised Statute (“KRS”)
    311.377(2), which states:
    At all times in performing a designated professional
    review function, the proceedings, records, opinions,
    conclusions, and recommendations of any committee,
    board, commission, medical staff, professional standards
    review organization, or other entity, as referred to in
    subsection (1) of this section, shall be confidential and
    privileged and shall not be subject to discovery,
    subpoena, or introduction into evidence, in any civil
    action in any court, including but not limited to medical
    malpractice actions . . . . The confidentiality and
    privilege protections of this subsection shall only be
    available to a person or entity that attests to participating
    in a patient safety and quality improvement initiative[.]
    Appellants argue that per KRS 311.377(2) and the Supreme Court’s writ of
    prohibition in Perry, supra, that the Jefferson Circuit Court improperly admitted
    into evidence at trial information contained in the RCA report, and/or related
    information from Appellants’ Incident Report and QRS Alert.5 The Incident
    Report was completed by nurse McGee about one day after the code blue event
    and served as a basis for the subsequent physician peer review. Appellants assert
    that all information contained in or relating to the RCA report, Incident Report, and
    QRS Alert, as well as any related witness testimony, was privileged and should not
    have been admitted at trial. While acknowledging that none of the privileged
    5
    The writ of prohibition rendered by the Kentucky Supreme Court in Perry, supra, barred only
    the admission of the RCA. Appellants state that a QRS Alert is a policy change.
    -16-
    documents were admitted into evidence, Appellants assert that the circuit court
    improperly allowed into evidence certain witness testimony which paralleled the
    content of the privileged documents.
    In addition to not preserving this argument for review as required by
    the former CR 76.12(4)(c)(v), Appellants do not cite or otherwise quote any
    specific testimony it finds objectionable. No specific rulings rendered by the
    circuit court at trial, if any, are cited or preserved. Rather, Appellants provide
    several footnotes in which they claim that privileged information was improperly
    revealed at trial, but no specific testimony is quoted or cited therein.
    Appellants direct our attention to motions in limine filed about two
    months prior to trial, but these are not preserved and not addressed in the Notice of
    Appeal. Further, Appellants acknowledge that none of the purportedly privileged
    documents were admitted into evidence at trial.
    As noted above, “manifest injustice” requires a showing that a
    different result was probable, or that the error in the proceeding was of such
    magnitude as to be “shocking or jurisprudentially intolerable.” Martin, 207
    S.W.3d at 3-4. Based on the entirety of the record, including the uncontroverted
    testimony regarding the events leading up to and including the code blue and Mr.
    Reddington’s subsequent death, we do not conclude that the result of the
    -17-
    proceeding would have been different but for the alleged error, nor that the error
    was shocking or jurisprudentially intolerable.
    Lastly, Appellants argue that the QRS Alert was inadmissible by
    operation of Kentucky Rules of Evidence (“KRE”) 407, which states:
    When, after an event, measures are taken which, if taken
    previously, would have made an injury or harm allegedly
    caused by the event less likely to occur, evidence of the
    subsequent measures is not admissible to prove
    negligence, culpable conduct, a defect in a product, a
    defect in a product’s design, or a need for a warning or
    instruction. This rule does not require the exclusion of
    evidence of subsequent measures when offered for
    another purpose, such as proving ownership, control, or
    feasibility of precautionary measures, if controverted, or
    impeachment.
    This argument parallels Appellants’ preceding argument. It was not
    preserved for review, and Appellants acknowledge that the QRS Alert document
    was not entered into evidence. We find no error.
    CONCLUSION
    Appellants were not entitled to summary judgment, and the circuit
    court did not err in its negligence and missing evidence instructions. We find no
    basis for concluding that the circuit court improperly admitted privileged
    documents into evidence, nor that any testimony was violative of the writ of
    prohibition. For these reasons, we affirm the March 23, 2022 judgment of the
    Jefferson Circuit Court, and April 29, 2022 order denying post-judgment relief.
    -18-
    ECKERLE, JUDGE, CONCURS.
    CENTRULO, JUDGE, CONCURS IN RESULT ONLY AND FILES
    SEPARATE OPINION.
    CENTRULO, JUDGE, CONCURRING IN RESULT: Respectfully, I
    concur in result only. I believe that the alleged errors were sufficiently referenced
    for our appellate review. Our appellate court rules require a reference to the
    location in the record at the beginning of each argument. The references herein
    were largely in footnotes and/or the appendix, but I believe that was sufficient to
    allow our full review.
    However, I agree with the majority that the summary judgment denial
    was not properly preserved below as there was no ruling ever entered on that
    motion. Moreover, as to the other alleged errors, those are all matters that rest
    within the discretion of the trial judge. Appellant claims the trial court erred in
    placing two duties on the hospital with the wording of Instruction No 4. However,
    the trial court considered arguments on the instructions by both parties, reviewed
    case law and pattern instructions, and clearly considered the evidence presented
    over nine days of trial. The trial court then instructed the jury in keeping with the
    standard jury instruction manuals and with medical malpractice case law. I agree
    with appellant that the better language would have been “that the hospital has a
    duty IN establishing and following procedures” rather than the use of AND in
    -19-
    setting forth the duty of ordinary care. However, it did not rise to the level of an
    abuse of discretion.
    Similarly, regarding the spoliation instruction given to the jury, we are
    limited in our review on appeal. Trial courts are vested with wide discretion in
    deciding what admonitions and instructions to the jury are appropriate under the
    evidence and attendant circumstances. Our standard of appellate review is for
    abuse of discretion. As the majority noted, University Medical Center v Beglin,
    
    375 S.W.3d 783
     (Ky. 2011), is dispositive on this issue, and the Beglin court opted
    for a flexible standard that grants wide discretion to the trial court . Norton
    Healthcare, Inc. v. Disselkamp, 
    600 S.W.3d 696
    , 730 (Ky. 2020). Similarly, the
    appellant cannot prevail on its argument as to improper references to subsequent
    remedial measures as the trial court gave the proper admonition to the jury
    consistent with Davenport By & Through Davenport v. Ephraim McDowell
    Memorial Hospital, Inc., 
    769 S.W.2d 56
     (Ky. App. 1988).
    I turn now to the argument on admissibility of privileged information
    (as determined by the Supreme Court earlier in Jewish Hospital v. Perry, 
    626 S.W.3d 509
     (Ky. 2021)). On this point, Jewish Hospital again did not obtain a
    ruling on its motion in limine pertaining to two documents, the Incident Report and
    the QRS Alert. Instead, the trial court passed consideration of admissibility of
    those items until trial. At trial, the trial court did not allow the documents to be
    -20-
    admitted at trial, but did allow testimony from several witnesses regarding facts
    contained in those two documents. That testimony was without any
    contemporaneous objection, and that testimony did not violate the Supreme
    Court’s ruling in Perry. The text of that opinion makes it clear that their review
    was limited to the admissibility of a root cause analysis report only.
    For the foregoing reasons, I concur with the Opinion affirming the
    judgment which upholds the jury verdict herein.
    BRIEFS FOR APPELLANTS:                     BRIEF FOR APPELLEE:
    B. Todd Thompson                           Jack Conway
    Eleanor M. B. Davis                        Louisville, Kentucky
    Joseph A. Wright
    Louisville, Kentucky                       Kevin C. Burke
    Jamie K. Neal
    ORAL ARGUMENTS FOR                         Louisville, Kentucky
    APPELLANTS:
    ORAL ARGUMENTS FOR
    Joseph A. Wright                           APPELLEE:
    Louisville, Kentucky
    Jack Conway
    Louisville, Kentucky
    -21-