Delayed Diagnosis Case in Kentucky
In NKC Hospitals, Inc. v. Anthony, Ky. App., 849 S.W.2d 564 (1993), plaintiff's decedent, M.Anthony, was 30 weeks along in an uneventful pregnancy. She was taken to the E.R. on the evening of September 5, 1989 with nausea, vomiting and abdominal pain.
Despite her continued pain, the treating obstetrician discharged Mrs. Anthony from the hospital the next morning. At the time of her discharge, Mrs. Anthony had not been clinically seen or examined by a physician.
Mrs. Anthony returned to the hospital later the same morning, and she was readmitted. The next day, September 7, it was determined that she had a serious respiratory problem. On September 8, she was transferred to ICU. On September 9, the baby was delivered by Cesarian section.
At that time, it was determined that Mrs. Anthony had a perforation of the appendix at the large bowel, which was undetected at the time of the first admission.
Mrs. Anthony died three weeks later, still in the hospital, of acute adult respiratory distress syndrome, a complication of the delay in diagnosis.
The jury attributed causation 65% to the obstetrician and 35% to the hospital. As did Dr. Crabtree, in the case sub judice, the treating obstetrician had settled prior to trial.
On appeal, the hospital argued the trial court erred in failing to direct a verdict.
The hospital contended that no negligence was committed by the hospital after Mrs. Anthony's readmission on September 6, reasoning that the obstetrician's conduct became the superseding cause of Mrs. Anthony's death, "breaking the chain of causation and cutting short the negligence and liability of the hospital." NKC Hospitals, Inc. v. Anthony, 849 S.W.2d 564 at 567.
The Court of Appeals explained that "negligence may rest on an omission as comfortably as positive acts; the consequence is the same." Id.
The hospital's defense of superseding cause "presupposes, ipso facto, negligence on its on behalf." Where the resultant injury is "reasonably foreseeable from the view of the original actor, then the other factors causing to bring about the injury are not a superseding cause." Id. at 568.
The Court concluded that the foreseeability by the original or antecedent actor - the hospital - negated an otherwise superseding cause - the obstetrician - "which means the hospital is left on the liability hook." Id.