Dennis Thomas, as Administrator of the Estate of Glenda Thomas v. University Medical Center, Inc. D/B/A University of Louisville Hospital

RENDERI;
2018-SC-000454-DG
DENNIS THOMAS, AS ADMINISTRATOR OF APPELLANT
THE ESTATE OF GLENDA THOMAS,
DECEASED, AND DENNIS THOMAS,
INDIVIDUALLY
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2016-CA-001557-MR
JEFFERSON CIRCUIT COURT NO. 09-CI-07333
UNIVERSITY MEDICAL CENTER, INC. APPELLEES
D/B/A UNIVERSITY OF LOUISVILLE
HOSPITAL; NEUROSURGICAL INSTITUTE
OF KENTUCKY, P.S.C.; TODD W. VITAZ,
M.D., SARAH C. JERNIGAN, M.D., AND
AASIM KAZMI, M.D.
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
Dennis Thomas, in his capacity as Administrator of the estate of his
deceased wife, Glenda Thomas, and in his individual capacity, appeals the
decision of the Jefferson Circuit Court to exclude from evidence a Root Cause
Analysis (“RCA”) and to grant a directed verdict in favor of Neurosurgical
Institute of Kentucky, P.S.C. (“NIK”). The Court of Appeals affirmed the decision
of the Jefferson Circuit Court. Having reviewed the record and considered the
arguments of the parties, we hereby affirm the decision of the Court of Appeals,
though for different reasons.
I. BACKGROUND
On August 15, 2008, fifty-year-old Glenda Lee Thomas underwent an
anterior cervical discectomy and fusion procedure, which required a surgical
incision on her neck. The surgery was performed at University Medical Center,
Inc. (“UMC”) by Dr. Aasim Kazmi, a sixth-year neurosurgical resident, under
the supervision of Dr. Todd Vitaz, the attending surgeon.
After the operation, Mrs. Thomas was transported to the post-anesthesia
care unit (“PACU”). She arrived at approximately 2:30 PM. The PACU record
indicates that her breathing was unlabored and regular. At around 5:00 PM
that day, Mrs. Thomas was discharged from the PACU and transferred to the
medical floor. The PACU records indicate that, at the time of discharge, she
was in good condition and oriented, with clear speech and controlled pain.
At approximately 8:00 PM, a nurse noted in Mrs. Thomas’s chart that
she suffered from dyspnea (shortness of breath), labored breathing, and pursed
lips. Soon after, Dr. Sarah Jernigan, a fifth-year neurosurgical resident,
examined Mrs. Thomas. Dr. Jernigan noted swelling in Mrs. Thomas’s neck
and complaints of worsening shortness of breath. However, Dr. Jernigan also
noted that Mrs. Thomas’s speech was fluent, she did not require increased
oxygen, and she was not short of breath during conversation. Dr. Jernigan
further noted that a firm hematoma, three to four centimeters at its largest
diameter, was centered on the neck incision. Dr. Jemigan ordered a steroidal
drug and an x-ray.
2
At approximately 9:00 PM, after the x-rays were completed, Dr. Jernigan
returned to Mrs. Thomas’s bedside. Jernigan noted that Mrs. Thomas was now
wheezing, “having more difficulty breathing,” and could no longer carry on a
conversation. Dr. Jernigan ordered Mrs. Thomas back to the operating room for
wound exploration.
The anesthesiology resident then made his way to Mrs. Thomas’s room to
perform a pre-operative assessment of Mrs. Thomas. As he arrived on her floor,
Dennis Thomas, Mrs. Thomas’s husband, ran out of her room, stating that
“she can’t breathe.” The anesthesiologist and Dr. Jernigan went immediately to
Mrs. Thomas’s bedside and began using an AMBU bag, a manual resuscitator.
The doctors also called a Code 900 and opened the neck incision to evacuate
the hematoma. The Code team arrived but struggled to intubate Mrs. Thomas.
She was taken to the operating room for a tracheostomy and exploration of the
neck wound.
Unfortunately, Mrs. Thomas suffered from anoxic encephalopathy, or
brain injury from lack of blood flow. She passed away a few days later, after
supportive care was withdrawn.
Dennis Thomas, in his capacity as administrator of his wife’s estate and
in his individual capacity, filed a medical negligence suit against UMC, Drs.
Vitaz, Jemigan, and Kazmi, and NIK, a private neurosurgery practice of which
3
Dr. Vitaz was a member.1 He later added claims of negligent training and
supervision.
During discovery, UMC revealed the existence of a “Root Cause Analysis
and Action Plan.”2 This RCA report consists of a chart, in which a series of
questions are asked and answered. For example, beside a box listed
“Equipment factors” is a question: “How did the equipment performance affect
the outcome?” The response listed on the RCA chart is “None.” When asked if
equipment performance was a “Root Cause,” the response is “N” or no. The
RCA asks a series of similar questions, such as “What factors directly
contributed to the outcome?” and “To what degree was the physical
environment appropriate for the processes being carried out?”
At issue in this case is the response to the question “What human factors
were relevant to the outcome?” The reply to this question states, “Medical
management of airway in postoperative patient.” When asked if this was a root
cause, the response is “N” or no. However, in response to the question “Take
action?” the report references “1,” or Action Plan Item No. 1. The Action Plan is
attached to the RCA. Action Plan Item No. 1 states, under the “Risk Reduction
1 By amended complaint, Thomas added as defendants Drs. Mark Glasgow (the
attending anesthesiologist who responded to the Code 900) and Maya Leggett (an
attending physician who responded to the Code 900). However, by order entered April
3, 2012, the trial court granted motions for summary judgment filed by both doctors,
thereby dismissing them from this case. In August 2012, Thomas filed a second
amended complaint, which did not include Drs. Glasgow or Leggett.
2 Throughout the record, the RCA report is sometimes referred to as an
“RCA/sentinel event report.” The document itself is titled “Root Cause Analysis and
Action Plan,” but for ease of reference, we refer to the entire document as the RCA.
4
Strategies” category, “Respiratory/Airway/Assessment Skills: Inservice
education for nursing staff and surgical resident staff to recognize signs and
symptoms of mechanical airway obstruction.” Under the “Responsible
Person(s)” heading, the response is “Nursing Education Residency Coordinator;
Department of Neurosurgery and Department of Anesthesia.” Under the
“Measures of Effectiveness” heading, the response is “Measure: Inservice
education will be provided in November 2008.” Finally, under the “Evaluation
Schedule” heading, it is noted that “100% of individuals involved in incident
will have inservice education by Nursing Education or Attending-level for
Department of Neurosurgery residents and Anesthesia residents.” Later,
depositions of the individuals involved in Mrs. Thomas’s care revealed that
those individuals did not receive the recommended inservice training.
UMC ultimately filed a motion in limine to exclude the RCA report as a
subsequent remedial measure under Kentucky Rule of Evidence (“KRE”) 407.
By order dated January 19, 2016, the trial court granted that portion of UMC’s
motion relating to the RCA report. The court explained, however, that “in
keeping with KRE 407, the Court recognizes that there may be circumstances
under which information contained in the Root Cause Analysis and Action Plan
may be, or become, admissible.” The trial court directed Thomas’s counsel to
first approach the bench “to discuss the application of KRE 407 outside the
presence of the jury,” should such a situation arise.
5
Thomas later sought clarification of the trial court’s ruling, requesting
that the RCA be admissible under KRS 411.186(2)(e)3 as post-incident conduct
in support of his claim for punitive damages. By order dated June 16, 2016,
the trial court explained,
Insofar as this proposed use [under KRS 411.186(2) (e)] seems to be
incongruous with the public policy underlying the subsequent
remedial measures rule codified under KRE 407, this was not the
particular circumstance the Court had in mind when issuing the
previous ruling. Be that as it may, [the] Court nevertheless
continues to appreciate that the information developed/revealed in
the course of the RCA may be relevant, probative and admissible.
However, as is the case in every case, the Court is obliged to weigh
the probative value of any such information against any attendant
prejudicial impact.
In the instant case, the fact that an RCA was conducted is of no
evidentiary value. The information developed/revealed in the
course of the RCA is of minimal probative value in terms of the
allegation that Mrs. Thomas’ [sic] death was the result of negligent
conduct by the Defendants. Rather, and somewhat morbidly, the
probative value of same lies in a case where someone dies under
similar circumstances after the Defendants’ RCA in Mrs. Thomas’
[sic] case. Were this that case, the Court would be obliged to permit
the Plaintiff to introduce evidence from the RCA. Because it is not,
and in light of the prejudicial impact associated with the
information, the Court is not inclined to revisit its previous ruling
excluding same from the Plaintiff’s case-in-chief.
The trial court noted, however, that “the information may be used to impeach
or rebut testimony offered or elicited by the Defendants.”
The matter proceeded to an eight-day jury trial in June 2016. At the
close of evidence, the court granted a directed verdict in favor of NIK. NIK, a
3 Under this statute, in cases in which the trier of fact concludes that punitive
damages should be awarded, the trier of fact must assess those damages by
considering a variety of factors, including “[a]ny actions by the defendant to remedy
the misconduct once it became known to the defendant.” KRS 411.186(2) (e).
6
private neurosurgery practice, had been sued for the negligence of its agents,
as well as its own negligent training and supervision of neurosurgical residents
Drs. Kazmi and Jernigan. The trial court found that insufficient evidence had
been presented to support these claims.
The jury returned verdicts in favor of the remaining defendants. Thomas
moved for a new trial, arguing that the RCA was improperly excluded from
trial. The trial court denied the motion.
Thomas then appealed to the Court of Appeals. He argued that the trial
court improperly precluded use of the RCA as substantive evidence of
negligence and as impeachment evidence. The court affirmed the circuit court’s
judgment. In doing so, it held, “As a general matter, formulating a plan to
require additional training’ qualifies as a ‘subsequent measure’ within the plain
meaning of [KRE 407].” The Court of Appeals cited no authority to support this
statement, and it is unclear from what source the quoted portions originate.
The Court of Appeals then explained that UMC’s “lack of follow through
on mandating additional training undermines [Thomas’s] claim that the RCA
and Action Plan were probative of [UMC’s] fault.” “If a defendant is deemed to
speak through its actions and does nothing,” the court explained, “it admits
nothing” The Court of Appeals therefore concluded that “the trial court
committed no abuse of discretion by excluding the RCA and Action Plan from
evidence; these documents had little probative value and would have distracted
the jury from the relevant issues presented.”
7
Lastly, the Court of Appeals addressed Thomas’s argument that the trial
court erred in granting a directed verdict in NIK’s favor. The Court of Appeals
declined to fully analyze this issue, noting that any error was harmless, as the
jury ruled in favor of the physician-defendants.
This Court granted discretionary review.
H. ANALYSIS
Thomas now argues that (1) the trial court erred in excluding the RCA
under KRE 407; (2) the Court of Appeals misconstrued the evidence in the
record and improperly considered and applied KRE 403; (3) the trial court
erred in excluding the RCA when offered for impeachment purposes; and (4)
the trial court erred in directing a verdict in favor of NIK. We address each
argument in turn.
A. The trial court erred in excluding the Root Cause Analysis under
KRE 407; however, that error was harmless.
KRE 407 states, in full,
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.
In other words, evidence of a subsequent remedial measure is not admissible to
prove liability. Under the plain language of the rule, a subsequent remedial
measure includes a “measure” taken after an event “which, if taken previously,
8
would have made an injury or harm allegedly caused by the event less likely to
occur.”
In this case, the trial court excluded the RCA under KRE 407. The Court
of Appeals affirmed, holding that “formulating a plan to require additional
training” qualified as a “subsequent measure” under the rule, though the court
cited no authority for this statement. Thomas now argues that the Court of
Appeals overlooked that portion of KRE 407 which requires that the
“subsequent measure” actually be remedial, or in other words, the requirement
that the subsequent measure “would have made an injury or harm allegedly
caused by the event less likely to occur.” Thomas argues that the mere
contemplation of additional training does not make the harm “less likely to
occur.” Thus, Thomas argues, the trial court erred in excluding the RCA under
KRE 407, and the Court of Appeals erred in affirming that decision.4
Typically, when reviewing a trial court’s evidentiary rulings, our review is
limited to a determination of whether the trial court abused its discretion.
Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000)
4 In its brief to this Court, NIK argues for the first time that the RCA is
inadmissible under the peer review privilege of KRS 311.377, and thus, that this issue
is moot, as the RCA would not be admissible on remand. NIK points to the most
recently amended version of this statute, which expressly applies the peer review
privilege to medical malpractice actions. We will not consider NIK’s argument,
however, because the amendment that NIK relies on did not go into effect until July
14, 2018, well after the June 2016 trial in this case. At the time of the trial, the
statute did not apply to medical malpractice actions like the current case. Because we
are not remanding this case, we need not decide whether the RCA would now fall
within the scope of KRS 311.377, and we decline to provide an advisory opinion on
whether this statute would preclude admission of similar investigatory reports in
future medical malpractice cases.
9
(citations omitted). However, in this case, we must first determine, as a matter
of law, whether a post-incident investigatory report like the RCA falls within the
scope of KRE 407. Accordingly, the immediate issue before us is a question of
law, which we review de novo. Saint Joseph Hosp. v. Frye, 415 S.W.3d 631, 632
(Ky. 2013) (citation omitted).
This Court has not yet addressed the question of whether post-incident
investigatory reports like the RCA in this case qualify as a subsequent remedial
measure under this rule. However, KRE 407 largely mirrors Federal Rule of
Evidence (“FRE”) 407.5 Accordingly, we consult federal case law interpreting
FRE 407 when interpreting our own KRE 407.
For example, the Evidence Rules Review Commission’s notes to KRE 407
cite to a Fourth Circuit case, in which that court stated, “The rationale behind
Rule 407 is that people in general would be less likely to take subsequent
remedial measures if these repairs or improvements would be used against
them in a lawsuit arising out of a prior accident. By excluding this evidence
defendants are encouraged to make such improvements.” KRE 407, Editors’
Notes (quoting Werner v. Upjohn Co., Inc., 628 F.2d 848, 857 (4th Cir. 1980)).
Simply put, then, “(t]he rationale behind the rule is a public policy concern.
Evidence of certain remedial efforts is not admissible so that parties will
perform remediation without concern for any possible court action.” Tilford v.
5 Prior to 2011, KRE 407 was identical to FRE 407. In 2011, FRE 407 was
amended, but the Advisory Committee notes state that this amendment was stylistic
only. Accordingly, we continue to examine federal court decisions interpreting FRE
407 when interpreting KRE 407.
10
Illinois Cent. R. Co., Nos. 2010-CA-000334-MR, 2010-CA-000380-MR, 2011 WL
2436742, *4 (Ky. App. June 17, 2011) (citing Com., Cabinet for Health and
Family Services v. Chauvin, 316 S.W.3d 279, 303 (Ky. 2010) (Abramson, J.,
dissenting)). See also Frye v. CSX Transp., Inc., 933 F.3d 591, 604 (6th Cir.
2019) (“[A] party should not be dissuaded from minimizing the risk of future
harm for fear that such remedial measures will be used against the party to
establish its liability for the originating accident.”)
As to whether investigatory reports should be excluded under FRE 407,
only a small number of jurisdictions have considered the issue. Of those federal
courts that have addressed it, some have held that such reports do not qualify
as a subsequent remedial measure under the rule. For example, in Rocky
Mountain Helicopters, Inc. v. Bell Helicopters, 805 F.2d 907 (10th Cir. 1986), the
trial court admitted a report that had been compiled after the helicopter
accident giving rise to the suit. Id. at 918. The plaintiffs argued that the
accident was caused by the fatigue failure of a certain helicopter part, and the
report summarized a post-accident “stress study” about this particular part. Id.
After the report, the helicopter part was redesigned, though references to that
redesign were excluded from trial. Id.
The Tenth Circuit ultimately affirmed the trial court’s decision to exclude
evidence of the redesign but admit the report. It explained,
It would strain the spirit of the remedial measure prohibition
in [FRE] 407 to extend its shield to evidence contained in post-
event tests or reports. It might be possible in rare situations to
characterize such reports as “measures” which, if conducted
previously, would reduce the likelihood of the occurrence. Yet it is
11
I
usually sounder to recognize that such tests are conducted for the
purpose of investigating the occurrence to discover what might
have gone wrong or right. Remedial measures are those actions
taken to remedy any flaws or failures indicated by the test. In this
case, the remedial measure was not the [study] of the [helicopter
part] but rather the subsequent redesign of the [part]. As noted
above, references to redesign were excluded at trial.
Id. In support of this analysis, the Court also noted that “the policy
considerations that underlie Rule 407, such as encouraging remedial
measures, are not as vigorously implicated where investigative tests and
reports are concerned.” Id. To the extent such concerns arise, “they are
outweighed ... by the danger of depriving Injured claimants of one of the best
and most accurate sources of evidence and information.”’ Id. at 918-19
(quoting Westmoreland v. CBS Inc., 601 F. Supp. 66, 68 (S.D.N.Y. 1984)).
Other federal and state courts have ruled similarly on the admission of a
post-incident investigatory report.6 Like the Tenth Circuit, these courts have
6 See, e.g., Brazos River Auth. v. GE Ionics, Inc, 469 F.3d 416, 431 (5th Cir.
2006) (declining to extend FRE 407 to investigations “which by themselves do not
make the accident less likely to occur”); Benitez-AUende v. Alcan Aluminio do Brasil,
S.A., 857 F.2d 26, 33 (1st Cir. 1988) (holding that report at issue was “‘internal
investigatory report’ of the sort not protected by Rule 407”); J.M. v. City of Milwaukee,
249 F. Supp. 3d 920, 932 (E.D. Wise. 2017) (holding that the investigation leading to
the remedial act of employee discipline did not fall within scope of FRE 407); Aranda v.
City of McMinnville, 942 F. Supp. 2d 1096, 1103 (D. Or. 2013); (“By it [sic] terms, [FRE
407] is limited to measures that would have made the harm less likely to occur; it does
not extend to post-incident investigations into what did occur.”); Westmoreland, 601
F. Supp. at 67 (“The fact that subsequent remedial measures are excluded as
admissions of fault does not mean that competent evidence resulting from an internal
investigation of a mishap must also be excluded.”); Bergman v. Kemp, 97 F.R.D. 413,
418 (W.D. Mich. 1983) (explaining that FRE 407 did not bar admission of investigatory
report because report was “not a measure taken which is an indicia of a change that
was made to make an event less likely to occur or to correct a previous condition,” nor
did it cause any change); Bullock v. BNSFRy. Co., 399 P.3d 148, 158 (Kan. 2017) (“[I]t
is not unusual for some evidence to include information that is permissible, such as
investigative conclusions, and information that is impermissible, such as [the
recommended remedial measure of] employee discipline.”); City of Bethel v. Peters, 97
12
concluded that investigatory reports alone do not qualify as subsequent
remedial measures under FRE 407. Essentially, these courts reason that such
investigations and reports, if performed prior to the accident, would not “have
made an injury or harm allegedly caused by the event less likely to occur,” as
required by the rule. When the report references a remedial measure or
recommends some remedial action, a few of these courts have chosen to redact
the offending portion of the report, thereby allowing the remainder of the report
into evidence.7
Conversely, other jurisdictions that have considered this issue have held
that such investigatory reports qualify as subsequent remedial measures and
must be excluded in full, regardless of whether the reports recommend
remedial measures.8 The Supreme Judicial Court of Massachusetts has
P.3d 822, 827 (Alaska 2004) (holding that post-incident report, with “corrective action”
section redacted, was admissible); Fox v. Kramer, 994 P.2d 343, 352 (Cal. 2000)
(noting that the majority of courts “distinguish between an investigation and actual
steps taken to correct a problem; postevent investigations do not themselves
constitute remedial measures, although they might provide the basis for such
measures”); J.B. Hunt Transp., Inc. v. Guardianship of Zak, 58 N.E.3d 956, 966 (Ind.
Ct. App. 2016) (“The majority of jurisdictions agree that a post-incident investigation
and report of the investigation do not constitute inadmissible subsequent remedial
measures.”).
7 See, e.g., Prentiss & Carlisle Co., Inc. v. Koehring-Waterous Div. of Timberjack,
Ina, 972 F.2d 6, 10 (1st Cir. 1992) (“The fact that the analysis may often result in
remedial measures being taken (as occurred here) does not mean that evidence of the
analysis may not be admitted.”); Bullock, 399 P.3d at 158 (“[I]t is not unusual for some
evidence to include information that is permissible, such as investigative conclusions,
and information that is impermissible, such as [the recommended remedial measure
of] employee discipline.”); Peters, 97 P.3d at 827 (holding that post-incident report,
with “corrective action” section redacted, was admissible).
8 See Maddox v. City of Los Angeles, 792 F.2d 1408, 1417 (9th Cir. 1986)
(holding that internal affairs investigation and measures taken as a result were
remedial measures under FRE 407); Alimenta (U.S.A.), Inc. v. Stauffer, 598 F. Supp.
934, 940 (N.D. Ga. 1984) (holding post-incident report to be a “subsequent remedial
13
provided an explanation of the rationale behind this minority view. That court
affirmed the exclusion of an investigation into the causes of an incident
involving a public bus. Martel, 525 N.E.2d at 664. It acknowledged that,
traditionally, a subsequent remedial measure is a repair, such as fixing a
broken elevator or improving the design of a product. Id. However, the court
explained, “we think that good public policy also requires the exclusion of the
results of the defendant’s investigation into the causes of an accident involving
its bus. Although not itself a ‘repair’ of a dangerous condition, the investigation
is the prerequisite to any remedial safety measure.” Id. Thus, the court
reasoned, “[t]he investigation is inextricably bound up with the subsequent
remedial measures to which it may lead, and questions of admissibility of
evidence as to each should be analyzed in conjunction and answered
consistently.” Id. The court felt that to rule otherwise “would discourage
potential defendants from conducting such investigations, and so preclude
safety improvements, and frustrate the salutary public policy underlying the
rule.” Id.
While we similarly seek to encourage the investigation of accidents and
the improvement of dangerous conditions, we do not believe that the
aforementioned policy purpose justifies a broad, blanket exclusion of post-
incident investigatory reports under KRE 407. Nevertheless, like
Massachusetts, we are concerned that the admission of an investigatory report
measure” because it was prepared for the purpose of improving company procedures);
Martel v. Mass. Bay Transp. Auth., 525 N.E.2d 662 (Mass. 1988).
14
might “discourage potential defendants from conducting such investigations,
and so preclude safety improvements, and frustrate the salutary public policy
underlying the rule.” Martel, 525 N.E.2d at 664. Simply put, we do not want
potential defendants to shy away from self-critical analyses and improvements
for fear that the same can be used against them in a civil suit. Such self-critical
analysis is a key step in improving safety conditions, procedures, and
outcomes.
Against this concern, we balance the concerns expressed by the Tenth
Circuit. Like that court, we acknowledge that, under some circumstances, the
policy considerations of the rule may be outweighed by “the danger of depriving
'injured claimants of one of the best and most accurate sources of evidence and
information.’” Rocky Mountain Helicopters, 805 F.2d at 918-19 (quoting
Westmoreland, 601 F. Supp. at 68). However, we do not believe that such policy
concerns will always be outweighed by this danger. Rather, we believe that an
investigatory report may sometimes provide relevant and reliable evidence
about the incident in question, but in other cases, the report may prove to be
“very poor proof of negligence or defectiveness.” See In re Air Crash Disaster, 86
F.3d 498, 529 (6th Cir. 1996) (explaining that, in addition to encouraging
safety upgrades, another purpose of this exclusionary rule is to “bar[] a class of
evidence that is very poor proof of negligence or defectiveness.” (citing 2
Weinstein’s Evidence § 407, 13-14)). For example, in some cases, an
investigatory report may describe what happened, but provide very little insight
into why it happened. That report may be of limited value; it does not
15
necessarily aid the plaintiff in demonstrating negligence or liability. In those
cases, the policy considerations behind the rule may outweigh the desire to
provide injured claimants with evidence.
Accordingly, in considering whether a post-incident investigatory report
should be excluded under KRE 407, we are mindful of two competing interests:
the desire to encourage potential defendants to investigate and improve their
practices and safety conditions, and the interest in ensuring that tort victims
may access and use relevant and reliable evidence. We do not believe, however,
that we must forsake one set of concerns to achieve the other. Rather, we
believe that the admission of a post-incident investigatory report should be
considered on a case-by-case basis. More specifically, we believe that the
analysis turns on whether the report recommends a remedial change and
whether that change is implemented.
To demonstrate this point, we consider the possible scenarios in which
this issue might arise. In some cases, like the one before us, a post-incident
report recommends some remedial measure, and that measure is not taken—
whether as a result of an intentional decision not to act or an unintentional
failure to act. In that situation, the report itself is merely a “prerequisite to any
remedial safely measure.” Martel, 525 N.E.2d at 664. It is an analysis of what
went wrong or what factors influenced the outcome and what can be improved.
In most cases, this information alone would not have made the incident less
likely to occur; the incident is only less likely to occur if some action had been
taken in response to that information. In this scenario, the report generally will
16
not qualify as a subsequent remedial measure “which, if taken previously,
would have made an injury or harm allegedly caused by the event less likely to
occur.” KRE 407. Thus, generally speaking, KRE 407 would not prevent the
admission of the report when its suggested remedial measures are not taken.
We acknowledge, however, that “[i]t might be possible in rare situations
to characterize such reports as ‘measures’ which, if conducted previously,
would reduce the likelihood of the occurrence.” Rocky Mountain Helicopters,
805 F.2d at 918. Accordingly, the question of whether an investigatory report
in this scenario qualifies as such a measure must be left to the sound
discretion of the trial court.
In other cases, however, an investigatory report includes a
recommendation for some remedial measure, and that measure is taken. As
noted above, a small number of courts have considered this same scenario and
concluded that the reports are admissible under KRE 407, so long as
references to the recommended remedial measure are redacted. These courts
reason that an investigation’s conclusions can be severed from the
recommended, implemented remedial measure. We disagree.
On this point, we note again that the investigatory report is a
“prerequisite to any remedial safety measure.” Martel, 525 N.E.2d at 664. It is
the first step in the remedial process, and without more, the process is
incomplete. Once those recommended remedial steps are taken, however, the
remedial process is completed, and the report is no longer a mere prerequisite.
We hold that, at that point, the report is so inextricably intertwined with the
17
subsequent remedial measure that it must be excluded as such under KRE
407.
We believe that this holding aligns with the policy rationale behind KRE
407, namely, to encourage defendants to take remedial measures. See Werner,
628 F.2d at 857 (describing policy rationale behind FRE 407). Alleged
tortfeasors should be encouraged to not only conduct self-critical analyses but
to perform the recommended remedial measures because doing so can prevent
the full investigatory report from being used in a subsequent civil suit to prove
liability.
We also believe that this holding aligns with the limited Sixth Circuit
precedent addressing this issue. For example, in Wilson v. Beebe, 770 F.2d 578
(6th Cir. 1985), the Court found that a post-shooting report, in which a police
officer was found to have acted contrary to his training, was not excludable
under FRE 407. Id. at 590. That Court briefly explained, “The report did not
recommend a change in procedures following the shooting; it was a report of
that incident and nothing more.” Id.
Later, in In re Air Crash, the Sixth Circuit considered the applicability of
FRE 407 to an internal memorandum drafted two months after an airplane
crash. The memorandum explained that a flight crew check of the takeoff
warning system on board that particular plane model was not necessary
because the system’s fail light should warn crews about any system failure. 86
F.3d at 531-32. The report also discussed the company’s recommendation to
buyers of another plane model to perform such a system check prior to take
18
off. Id. at 531. This recommendation had been made in response to an earlier
plane crash. Id. The Sixth Circuit held that the memorandum should be
excluded, explaining, “It is obvious that the memorandum is part of a
discussion about whether [the airplane manufacturer] should recommend the
check in the future—and such a change in policy is a subsequent remedial
measure within the meaning of Fed.R.Evid. 407.” Id. at 532 (citing Hall v.
American Steamship Co., 688 F.2d 1062, 1066 (6th Cir. 1982)). Thus, the Sixth
Circuit has drawn a distinction between reports that recommend changes in
procedure, which thereby become “part off that discussion, and reports that
make no such recommendation.
For the reasons set forth above, we disagree with that portion of the
Court of Appeals’ opinion holding that the mere act of formulating a plan to
require additional training, such as creating an RCA report, necessarily
qualifies as a subsequent remedial measure automatically subject to exclusion
under KRE 407. Rather than adopt that approach, we direct our trial judges to
consider this issue on a case-by-case basis. When the report provides a
recommendation for improvement, which is then implemented, the entire
report should be considered a subsequent remedial measure under KRE 407.
However, in those cases in which a post-incident investigatory report provides
a recommendation for improvement, but such recommendation is not acted
upon, the report likely will not trigger exclusion under KRE 407. We again note
that this should be considered on a case-by-case basis.
19
With this holding in mind, we next consider whether the trial judge in
the present case abused his discretion in excluding the RCA. The RCA
recommended inservice training, but that training was not performed. Stated
another way, the RCA was the first step in the remedial process, but that
process was not completed. Because the recommended remedial measure was
not taken, it is impossible for the RCA to become so inextricably intertwined
with that measure that the RCA must be excluded. Furthermore, had a mere
recommendation for additional training taken place before Mrs. Thomas’s
surgery, that recommendation—without more—would not have made her death
less likely to occur. In fact, the RCA notes only that “medical management of
airway in postoperative patient” was a human factor “relevant to the outcome.”
The report states that these human factors were not the root cause of Mrs.
Thomas’s death, and it does not opine that changes to the medical
management of the airway would have necessarily made Mrs. Thomas’s death
less likely to occur. For these reasons, we hold that, under the facts of this
case, the RCA did not qualify as a subsequent remedial measure under KRE
407.
Accordingly, the trial court erred in excluding the RCA under KRE 407.
We find this error to be harmless, however, as the RCA was properly excluded
under KRE 403, as explained below.
B. The Court of Appeals’ KRE 403 analysis was not improper, and the
Root Cause Analysis was properly excluded under KRE 403.
Under KRE 401, relevant evidence is defined as “evidence having any
tendency to make the existence of any fact that is of consequence to the
20
determination of the action more probable or less probable than it would be
without the evidence.” Under KRE 402, “[a]ll relevant evidence is admissible”
unless otherwise excluded by the law or our rules of evidence. “Evidence which
is not relevant is not admissible.” Id. However, under KRE 403, even relevant
evidence may be excluded “if its probative value is substantially outweighed by
the danger of undue prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, or needless presentation of cumulative
evidence.”
Thomas argues that the Court of Appeals erred by misconstruing the
evidence in the record and misapplying KRE 403 to that evidence. First,
Thomas points to the following excerpt from the Court of Appeals’ opinion: “The
question, then, is whether an entity’s contemplation of a measure that it
ultimately decides not to take could reasonably be inferred as an admission of
fault. Logically, the answer is no. If a defendant is deemed to speak through its
actions and does nothing, it admits nothing” Thomas argues that the Court of
Appeals improperly assumed that UMC made an affirmative decision to forgo
the proposed inservice training, when it is equally plausible that UMC simply
neglected to follow through with the recommended training. However, even if
the Court of Appeals improperly assumed one version of events over the other,
we fail to see how this distinction impacted that court’s analysis.
Next, Thomas argues that the Court of Appeals inaccurately stated that
the circuit court excluded the RCA under KRE 403. According to Thomas, the
trial court did not find that the RCA’s prejudicial impact outweighed its
21
probative value. Rather, in the trial court’s January 19, 2016 order granting
UMC’s motion in limine with respect to the RCA, the court references only KRE
407. In the trial court’s June 16, 2016 order, the court does reference KRE 403
and considers the “minimal probative value” of the RCA and “the prejudicial
impact associated with the information.” However, that order addressed
Thomas’s motion for clarification, in which he sought to admit the RCA to
establish punitive damages, not to demonstrate liability. Thus, the trial court
did not directly apply KRE 403 when considering UMC’s motion in limine,
instead excluding the RCA under KRE 407.
Nevertheless, we may affirm the lower court for any reason available in
the record. Ky. Farm Bureau Mut. Ins. Co. v. Gray, 814 S.W.2d 928, 930 (Ky.
App. 1991) (citation omitted). We therefore turn to the KRE 403 issue at hand.
On this point, Thomas argues that the Court of Appeals erred in concluding
that the probative value of the RCA stemmed from UMC’s failure to provide the
proposed training. Thomas asserts that the probative value actually stemmed
from UMC’s apparent belief that such training was needed in the first place.
We do not necessarily disagree with Thomas’s assertion that the RCA’s
probative value stemmed from its recommendation to perform additional
training. However, this probative value was minimal. The RCA stated that
human factors relevant to the outcome—meaning relevant to Mrs. Thomas’s
death—included “[m]edical management of airway in postoperative patient.”
The Action Plan portion of the report recommended inservice education “to
recognize signs and symptoms of mechanical airway obstruction” for all
22
individuals involved in the incident. Thus, the RCA was probative of the human
factors “relevant to” Mrs. Thomas’s death and what actions could be taken in
response to those human factors. However, the RCA clearly states that these
human factors were not a root cause of Mrs. Thomas’s death. In addition, the
report found no root cause of her death. This finding diminishes the probative
value of the report—the RCA does not tend to show that human error or
negligence was a cause of Mrs. Thomas’s death.
Against this limited probative value, we consider the prejudicial impact of
the RCA, as well as the potential for confusion of the issues or misleading the
jury. See KRE 403. In this case, a jury could easily become confused or
distracted by the distinction between human factors “relevant to the outcome”
and human factors that are the root cause of the outcome. In other words, the
jury is likely to assign unfair weight to the RCA, thereby unduly prejudicing the
defendants. Given this potential for undue prejudice, we cannot say that the
trial court abused its discretion in excluding the RCA.
In sum, we believe that the Court of Appeals properly considered KRE
403 and the RCA was properly excluded under that rule.
C. The trial court did not err in excluding the Root Cause Analysis
when offered for impeachment purposes.
Though KRE 407 excludes evidence of subsequent remedial measures, it
“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.” Accordingly, in
this case, the trial court excluded the RCA under KRE 407 but explained that it
23
could be admitted to impeach or rebut the testimony of the defendants’
witnesses. Thomas now argues that the trial court erred in excluding the RCA
when offered at trial to impeach the testimony of UMC’s corporate
representative. We disagree.
At trial, Thomas called as a hostile witness Cynthia Lucchese, UMC’s
Director of Nursing Support Services and its designated corporate
representative. Thomas’s counsel asked Ms. Lucchese whether the nurses
involved in Mrs. Thomas’s care needed “additional training on airway
management” as of August 15, 2008, the date of the incident. Ms. Lucchese
responded, “No, sir.” Counsel then approached the bench and Thomas’s
attorney requested to use the RCA to impeach Ms. Lucchese. He argued that
UMC, via Ms. Lucchese, had denied that its nurses needed additional training
on airway management while the hospital’s RCA investigation concluded that
they did need additional training.
The trial court denied the request, explaining that “it’s not really
impeachment” because Ms. Lucchese only stated that the hospital believed that
its nurses were adequately trained. The trial court explained that the RCA’s
conclusion “that they should probably have additional training is not the same
as saying that they did not have enough training” as of the date of the incident.
The judge clarified, however, that Thomas could call an expert to provide an
opinion on the adequacy of the nurses’ training.
We agree with the trial court that Thomas’s proposed use of the RCA did
not qualify as proper impeachment under our rules. Our evidentiary rules
24
allow “[t]he credibility of a witness [to] be attacked by any party, including the
party calling the witness.” KRE 607. To do so, a party may question a witness
on his or her bias, interest, or hostility, including the witness’s relationships,
personal and monetary interests in the outcome of the case, and susceptibility
to corrupting influences9; certain prior convictions10; prior conduct11; and prior
inconsistent statements.12 We have also stated that one may present
contradicting evidence to impeach a witness regarding a material fact. Trover v.
Estate of Burton, 423 S.W.3d 165, 174 (Ky. 2014) (citation omitted). However,
to do so, the proffered impeachment evidence must actually contradict the
witness’s statements. Commonwealth v. Jackson, 281 S.W.2d 891, 895-96 (Ky.
App. 1955) (citing 3 Wigmore on Evidence § 1040 (3rd ed.)), overruled on other
grounds by Jett v. Commonwealth, 436 S.W.2d 788 (Ky. 1969).
Here, Ms. Lucchese opined that the nurses involved in Mrs. Thomas’s
care did not need additional training on airway management as of August 15,
2008, the date of Mrs. Thomas’s surgery. The drafters of the RCA, on the other
hand, suggested such training for all individuals involved, but there is no
statement in the RCA that the nurses needed such training on the day of Mrs.
Thomas’s surgery. In other words, the RCA concluded that the nurses might
9 See Robert G. Lawson, The Kentucky Evidence Law Handbook §4.10 (5th ed.
2013).
10 See KRE 609; Lawson, supra, at § 4.30.
11 See KRE 608; Lawson, supra, at § 4.25.
12 See KRE 613 (providing prerequisites for introduction of prior statements);
Lawson, supra, at § 4.15.
25
benefit from additional training, but it did not go so far as to say that the
nurses’ training was otherwise inadequate. Simply put, then, the RCA does not
directly contradict Ms. Lucchese’s opinions as stated. As such, it could not be
used as contradictory evidence to impeach Ms. Lucchese. We therefore hold
that the trial court did not err in excluding the RCA for the proposed
impeachment of Ms. Lucchese.
D. The trial court did not err in granting a directed verdict for the
Neurological Institute of Kentucky, P.S.C.
We have previously explained that “a motion for directed verdict . . .
should be granted only if ‘there is a complete absence of proof on a material
issue in the action, or if no disputed issue of fact exists upon which reasonable
minds could differ.'" Jewish Hosp. & St. Mary’s Healthcare, Inc. v. House, 563
S.W.3d 626, 632 (Ky. 2018) (quoting Morales v. American Honda Motor Co.,
Inc., 151 F.3d 500, 506 (6th Cir. 1998)). When considering such a motion, the
trial judge must draw all fair and reasonable inferences from the evidence in
favor of the party opposing the motion. Id. at 630 (citing Argotte v. Harrington,
521 S.W.3d 550, 554 (Ky. 2017)). On appeal, the reviewing court must consider
whether, under the evidence as a whole, it would be clearly unreasonable for a
jury to find for the plaintiff. Id. (citing Argotte, 521 S.W.3d at 554).
In his original complaint, Thomas alleged that NIK, by and through the
actions of its agents, including Dr. Vitaz, was negligent in the care and
treatment of Mrs. Thomas. Thomas later added claims of negligent supervision
and training against UMC, NIK, and Dr. Vitaz. He specifically alleged that NIK
26
and Dr. Vitaz, who is a member of the NIK practice, were negligent in the
supervision, training, and monitoring of Drs. Kazmi and Jemigan, two
residents at UMC.
At the close of proof, NIK moved for a directed verdict on the basis that it,
as a Corporate entity, was not obligated to supervise or train the hospital’s
neurosurgical residents. It argued that Thomas had failed to present proof that
NIK had any duty to supervise the hospital’s resident doctors. The trial judge
found that “there’s nothing in the record” to support Thomas’s claims against
NIK. Referring to the duty to supervise, the judge explained, “They didn’t sign
up for that. It’s not reasonable to believe that they did. There is insufficient
proof to believe that they did.” The trial court therefore granted the motion for
directed verdict.13
Thomas now argues that the record contained contradictory evidence on
this issue, and the question of NIK’s liability therefore should have been
decided by the jury. Specifically, Thomas points to language in a Professional
Services Agreement between UMC and NIK. Thomas also points to the trial
testimony of Dr. Christopher Shields, a professor of neurosurgery at the
medical school and a physician-member of NIK. Based on this testimony and
the contract language, Thomas argues that the directed verdict was improper.
13 Though the parties’ arguments and the trial judge’s statements from the
bench focused on the negligent supervision claim, we note that no claims against NIK
were presented to the jury. We therefore conclude that the trial court granted a
directed verdict on all claims against NIK.
27
The Court of Appeals declined to consider this issue because the jury
ultimately found in favor of all defendants. Thus, the Court of Appeals
concluded, any error in granting the directed verdict was harmless. This was
an appropriate analysis for the underlying medical negligence claim against
NIK, as that claim necessarily relied on a vicarious liability theory. In other
words, NIK would only have been liable if its agents were negligent, and here,
the jury found no such negligence.
Claims of negligent training and supervision, on the other hand, are
based on the employer’s independent negligence. MV Transp., Inc. v. Allgeier,
433 S.W.3d 324, 336 (Ky. 2014). We therefore consider whether, under the
evidence as a whole, it would be clearly unreasonable for a jury to find for
Thomas on this claim. House, 563 S.W.3d at 630 (citing Argotte, 521 S.W.3d at
554).
We turn first to the contract language cited by Thomas. As an initial
matter, we note that “[t]he construction and interpretation of a contract,
including questions regarding ambiguity, are questions of law to be decided by
the court.” First Commonwealth Bank of Prestonsburg v. West, 55 S.W.3d 829,
835 (Ky. App. 2000) (citation omitted).
Thomas first points to the “Background Statement” of the contract.
Paragraph A of that section describes the hospital and Paragraph B describes
NIK and its “physician-shareholders and physician-employees who will provide
services under this Agreement,” referred to as the Practitioners. Thomas
focuses on Paragraph C, however. That paragraph provides in full:
28
To better serve [UMC], [University of Louisville School of Medicine]
and the community, [NIK] and the Practitioners have agreed to
expand their current professional practice to provide additional
clinical supervision to the School’s residents, additional sub-acute
care to the indigent and low income population served by the
Hospital and the associated ambulatory care clinic, and additional
service to the Hospital, including enhanced coverage of the Service,
research activities and emergency department. This document is
established to define the parties’ essential rights and
responsibilities under that agreement.
Relying on this language, Thomas argues that NIK contracted to provide
“additional clinical supervision” to UMC’s resident physicians. However, such
“[p]refatory statements or recitals to a contract are customarily not an essential
part of the agreement.” Jacob v. Dripchak, 331 S.W.3d 278, 283 (Ky. App.
2011). In this case, Paragraph C of the Background Section merely explains the
purpose of the contract: NIK and its physicians would expand their practice
and provide a variety of services to better serve the hospital, the medical
school, and the community. That provision does not explain or define NIK’s or
the physicians’ responsibilities under the contract. Rather, it explains that the
document itself “is established to define the parties’ essential rights and
responsibilities.” Simply put, Paragraph C does not create a contractual
obligation.
Thomas also points to Section 1.3 of the contract, which states that NIK
and its physicians “shall provide those additional services described by
reference to Addendum 1.3.” He argues that the services described in Section
2.2(c) in Addendum 1.3 include the supervision of resident physicians. Section
2.2 provides that NIK “will assure Practitioner coverage on the Hospital campus
29
as follows,” then proceeds to discuss the minimum average hours per week
that the physicians will provide. Section 2.2(c) then provides, in full:
In all scenarios, [NIK] will generally provide coverage between the
hours of 8:00 a.m. to 5:00 p.m., Monday through Friday, legal
holidays excepted. For purposes of this Agreement, the Hospital’s
campus includes the 2 square block area bounded by Preston,
Chestnut and Hancock Streets and Muhammad Ali Boulevard.
While on campus, Practitioners shall devote their full time and
attention to service for Hospital and its neurosurgery patients,
specifically including, but not limited to, emergency trauma
patients, the supervision of residents in the surgical and
ambulatory care settings in accordance with 42 CFR Chapter
415, and to the provision of the administrative services
contemplated by this Agreement. In this regard, Hospital
acknowledges that Practitioners cannot perform all services at one
time, and may not be able to perform any one service at a given
moment due to conflicting obligations on Hospital’s campus,
temporary absences or other justifiable or uncontrollable
circumstances. In turn, [NIK] agrees to use reasonable efforts to
balance the schedules of the Practitioners in an effort to achieve
the goals and perform the services required by this Agreement in a
manner that is efficient and quality-centered.
(Emphasis added.) Thomas argues that this language explicitly states that NIK
“will assure” that its physicians “devote their full time and attention to,” among
other things, “the supervision of residents.” From this, Thomas suggests that
NIK has a contractual obligation to supervise UMC’s neurosurgical residents.
We find this to be a strained and impractical reading of this provision.
Rather, this provision provides that NIK “will assure Practitioner coverage"
during the listed times and will “use reasonable efforts to balance the
schedules of the Practitioners in an effort to achieve the goals and perform the
services required by this Agreement in a manner that is efficient and quality-
centered.” The Practitioners—not NIK—will then “devote their full time and
attention” to providing services to UMC, including, among other things, “the
30
supervision of residents in the surgical and ambulatory care settings in
accordance with 42 CFR Chapter 415.” Thus, NIK contracted to provide the
physicians to UMC, and the physicians contracted to provide certain services to
the hospital. This is further evidenced by the fact that Dr. Shields signed the
contract on behalf of NIK, as its president, while the other individual
physicians signed the contract on their own behalf. They signed Addendum
1.1, titled “Agreement of Practitioners,” in which they agreed “to perform all
obligations . . . required of the Practitioners under the Agreement.”
Having concluded that the contract does not impose upon NIK a duty to
supervise UMC’s neurosurgical residents, we turn to the testimony of Dr.
Shields. During direct examination, Dr. Shields testified that NIK did not
supervise or train residents. During cross-examination, however, counsel for
Thomas presented Dr. Shields with a copy of the Professional Services
Agreement. He was asked to review Paragraph C of the Background Section
and, in reference to that provision, was asked if it said that NIK “and the
practitioners have agreed to clinical supervision of the school’s residents.” Dr.
Shields stated that “that’s part of the sentence,” but he insisted on reading the
remainder of Paragraph C. He then stated, “So this contract was for several
services that were very significant as part of the arrangement that existed
between [UMC] and [NIK].”
Thomas’s counsel then asked if supervision of residents was one of the
duties of NIK listed in Paragraph C. At this point, opposing counsel objected,
arguing that Dr. Shields could not provide a legal conclusion and could not
31
interpret the contract. The trial judge agreed but allowed Thomas’s counsel to
ask Dr. Shields what the contract said.
Thomas’s counsel then asked Dr. Shields, “In Paragraph C, does this
contract provide that [NIK] and its practitioners agree to provide clinical
supervision of the residents?” Dr. Shields replied:
As part of many responsibilities. Let me give you the background of
what created this. [UMC] wanted to have a greater presence of
neurosurgeons at [UMC]. They wanted to see us in the hallways.
They wanted us to be available to answer the emergency calls, to
take care of activities going on in the hospital. That was the
primary reason for them coming to us to say, look, what do we
have to do to have you—any one of the faculty members—spend
more time at University Hospital? It was not really primarily—it
was never generated primarily for the role of teaching residents. It
was for these other things. Now, you’re right, if one parses and
takes one point out of it, that is included in the contract, but it
was not the primary motivating force to have this contract created.
Thomas’s counsel did not inquire further about Paragraph C.
Later in the cross-examination, Thomas’s counsel directs Dr. Shields to
Addendum 1.3 and asks whether Section 2.2(c) “list things that [NIK] will do
under the contract.” Dr. Shields replied, “Yes, several things,” and ultimately
referred to the “supervision of residents” language in Section 2.2(c). He
explained that
when [the physicians] went there, we were not acting as
representatives of [NIK], we were acting in our role as faculty of
University of Louisville. That was—that’s why each one of us
signed that, it was not signed solely as a corporate document, it
was signed with each one of us going over, and once we stepped
over into [UMC], we had these other roles, but we were wearing our
hat as a faculty member of the University of Louisville.
Thomas’s counsel then asked, “Among the roles that [NIK] had, one of them
was supervising the residents, is that true?” Dr. Shields replied, “It was one of
32
the roles, but I have to clarify that when we were in [UMC] we were not acting
nor did we ever act as an agent of [NIK]; we were acting in the role of a faculty
member in the University of Louisville, wearing that academic hat whenever we
stepped foot in [UMC].”
Thomas now argues that Dr. Shields admitted that the contract created a
duty to supervise. We note again, however, that the interpretation of a contract
is a question of law to be decided by the court, not by a lay witness. Thus, Dr.
Shields was not qualified to interpret the contract, and, pursuant to the trial
court’s instructions, Thomas’s counsel could only ask Dr. Shields what the
contract said. To the extent that Dr. Shields attempted to interpret the
contract, the jury would not have been bound by that legal conclusion.
Furthermore, for the reasons stated above, the plain language of the contract
does not support an interpretation that NIK is obligated to supervise UMC’s
neurosurgical residents.
For these reasons, we conclude that Thomas failed to present sufficient
evidence that the contract at issue obligated NIK to supervise and train UMC’s
resident physicians, and accordingly, it would have been unreasonable for a
jury to find in Thomas’s favor on the negligent supervision and training claim
against NIK. We therefore hold that the trial court did not err in granting a
directed verdict in favor of NIK on that claim.
For these reasons, we hold that the trial court did not err in granting
NIK’s motion for directed verdict on the negligent supervision and training
33
claim and that, even if the trial court erred in doing so on the vicarious liability
claim, any such error was harmless.
III. CONCLUSION
For the reasons set forth above, we hereby affirm the decision of the
Court of Appeals.
Minton, C.J; Hughes, VanMeter, Wright, JJ., Foster and Bentley, S.J.,
sitting. All concur. Lambert and Nickell, JJ., not sitting.
COUNSEL FOR APPELLANT:
Thomas Wesley Faulkner
Faulkner Law Offices
COUNSEL FOR APPELLEE, UNIVERSITY MEDICAL CENTER, INC. D/B/A
UNIVERSITY OF LOUISVILLE HOSPITAL:
Beth Hendrickson McMasters
Sara Clark Davis
McMasters Keith Butler, Inc.
COUNSEL FOR APPELLEES, NEUROSURGICAL INSTITUTE OF KENTUCKY,
PSC; TODD W. VITAZ, M.D.; SARAH C. JERNIGAN, M.D.; AND AASIM KAZMI,
M.D.:
John Witt Phillips
Patricia Colleen Le Meur
Katherine Tipton Watts
Phillips Parker Orberson & Arnett, PLC
34