University of Kentucky Medical Center v. Hon Gary D. Payne Judge, Fayette Circuit Court

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED : NOVEMBER 1, 2007
NOT TO BE PUBLISHED
asuprMe (90urf of
2007-SC-000256-MR
UNIVERSITY OF KENTUCKY APPELLANTS
MEDICAL CENTER, ET AL.
ON APPEAL FROM THE COURT OF APPEALS
V. CASE NUMBER 2007-CA-000248
FAYETTE CIRCUIT COURT NO. 06-CI-04441
HONORABLE GARY D. PAYNE, ET AL. APPELANTS
MEMORANDUM OPINION OF THE COURT
AFFIRMING
University of Kentucky Medical Center and University Hospital of the
Albert B. Chandler Medical Center, Inc., being two of the 12 defendants named in a
medical negligence action filed in October of 2006 in Fayette Circuit Court, appeal
from the portion of the April 2007 Court of Appeals order which denied their petition
for writ of prohibition . Agreeing with the unanimous appellate panel's application of
this Court's decision in Hoskins v. Maricle , 150 S.W.3d 1 (Ky. 2004), we affirm.
Following a hearing on appellants' motion to dismiss in reliance upon
the sovereign immunity case of Withers v. University of Kentucky, 939 S .W .2d 340
(Ky. 1997), appellee Fayette Circuit Judge Gary Payne in December of 2006
entered an interlocutory order denying dismissal and permitting plaintiff to take
discovery on this issue. Similarly, following a hearing on appellants' subsequent
motion to vacate Judge Payne's order, appellee Fayette Circuit Judge James
Ishmael in January of 2007 entered an interlocutory order denying the requested
relief and allowing plaintiff 90 days in which to conduct discovery on the issue.
Anticipating a prompt opportunity to rule on the merits of the immunity issue, Judge
Ishmael expressly declined to include CR 54.02 recitations in the order in this
multiple party litigation .
Appellants attempted to appeal to the Court of Appeals as a matter of
right and also petitioned for a writ of prohibition from that court, which in a single
order in April of 2007 dismissed the appeal for lack of finality and denied
prohibition . By separate order, we have denied discretionary review of the
dismissal . Similarly, we affirm the appellate panel's application of Hoskins in
reasoning that the Fayette Circuit Court rulings were rendered within the jurisdiction
of that court over the subject matter of the pending medical negligence action and,
further, that appellants failed to show an abuse of trial court discretion irreparably
injuring them by permitting a brief period of discovery before deciding the immunity
issue. At this early stage of this case, we thus do not reach the question of the
propriety of the "collateral order" doctrine . In passing, we also note the passage of
over 90 days subsequent to the May 2007 order denying the temporary stay
requested by the appellants in this Court .
The denial of prohibition is affirmed .
All sitting . All concur .
ATTORNEYS FOR APPELLANTS :
Hon . Steven G . Kinkel
Hon. Melanie S. Marrs
Lynn, Fulkerson, Nichols & Kinkel
267 West Short Street
Lexington, KY 40507
ATTORNEYS FOR APPELLEES :
Hon . William R. Garmer
Hon . Jerome Park Prather
Garmer & O'Brien; LLP
141 North Broadway
Lexington, KY 40507
Hon . James D . Ishmael, Jr.
Judge, Fayette Circuit Court
503 Robert F . Stephens Courthouse
120 North Limestone Street
Lexington, KY 40507
Hon. Gary D . Payne
Chief Judge, Fayette Circuit Court
553 Robert F. Stephens Courthouse
120 North Limestone Street
Lexington, KY 40507