Overstreet, et al. v. Mayberry, et al., 2019-SC-000041-TG

John Phillips and Sean Ragland recently won dismissal of Plaintiffs’ Complaint from the Supreme Court of Kentucky on behalf of their client, a former trustee of the Kentucky Retirement System (KRS). Plaintiffs, eight retired public employees and current members of the KRS’s defined-benefit retirement plan, brought suit against several former KRS trustees and officers alleging mismanagement of KRS fund investments resulting in the loss of over $100 million. Plaintiffs, however, according to the Supreme Court, failed to demonstrate a necessary element of constitutional standing under Kentucky law: an injury in fact that is concrete, particularized, and actual or imminent. The Court reasoned that because the Plaintiffs did not and could not claim that their vested or expected retirement benefits were reduced or otherwise made unavailable, they lacked standing to bring the entire action.

Medical Malpractice Case Against Two Hospitalists

Sean Ragland and Jack Phillips successfully defended two hospitalists and their practice after an in-patient, 64, suddenly lost vision and seized. After transfer to a higher acuity hospital, neurologists ultimately diagnosed her with Posterior Reversible Encephalopathy Syndrome, a rare neurological condition that was only discovered in the last 25 years. The PRES did reverse, and the patient recovered her sight but claimed ongoing memory loss and nerve damage. The Plaintiff alleged that untreated acute increased blood pressure during her two-day hospitalization caused the PRES. The hospitalists argued, through expert proof, that their monitoring of the Plaintiff’s blood pressure and clinical judgment not to treat it with medication was appropriate. A defense neurology expert also opined that, in retrospect, the blood pressures were not the cause of the PRES, but it was a mounting pneumonia infection, instead. The Plaintiff claimed over $1 million dollars in damages. A Carroll County, Kentucky jury returned a defense verdict in less than an hour.

Medical Malpractice Case Against a Pediatrician

Sean Ragland and Jack Phillips successfully defended a pediatrician and her practice after a four-year-old patient’s mother alleged that she failed to diagnose emerging appendicitis. The Plaintiff alleged that an earlier diagnosis would have avoided a subsequent rupture of the appendix, a surgical complication during repair, multiple other abdominal surgeries, and a difficult hospital course. The Plaintiff claimed over $4.7 million dollars in damages. A Floyd County, Kentucky jury returned a defense verdict in 20 minutes.

Daniella Blaine, Administratrix of the Estate Of Kenneth H. Cross, II, Deceased v. Louisville Metro Government; Corizon, Inc.

Daniella Blaine, Administratrix of the Estate Of Kenneth H. Cross, II, Deceased v. Louisville Metro Government; Corizon, Inc.; et al. 3:13-cv-00427-CRS, 768 Fed. Appx. 515 (6th Cir. 2019)

Sean Ragland and Jack Phillips recently defended an award of summary judgment to their clients, Corizon, Inc. and two employed nurses, in a 42 U.S.C. § 1983 “deliberate indifference” case before the United Stated Court of Appeal for the Sixth Circuit. The Plaintiff claimed that her brother suffered neglect and deliberate indifference in violation of his constitutional right to medical care when he died of a drug overdose while in custody at a Louisville Metro Department of Corrections. Corizon, a correctional facility healthcare services provider, and the nurses were found to have provided appropriate assessment, management, and monitoring of Mr. Cross by the U.S. District Court in the Western District of Kentucky and the Sixth Circuit. The case will now be remanded to Jefferson County Circuit Court for continued litigation of the Plaintiff’s state law claims of negligence, gross negligence, and wrongful death.

 

Merritt v. Catholic Health Initiative, Inc., et al., 2018-SC-000155-D

Bill Orberson and Jack Phillips recently drafted and filed an Amicus Curiae brief on behalf of the Kentucky Defense Counsel in an appeal to the Supreme Court of Kentucky regarding an attempt to expand third-party bad faith law in Kentucky. Arising from a medical malpractice case, the Plaintiffs/Appellants brought third-party bad faith claims under Kentucky’s Unfair Claims Settlement Practices Act (UCSPA) against the medical Defendants’ wholly-owned captive self-insurer, First Initiatives Insurance, Ltd., and First Initiatives’s parent company, Catholic Health Initiatives, Inc.

The trial court granted summary judgment to First Initiatives and Catholic Health because it found First Initiatives to be a pure captive subsidiary of Catholic Health and thus the self-insurer is exempt from bad faith liability under the UCSPA. The Court of Appeals affirmed, and the Supreme Court granted discretionary review. In a “friend of the court” brief, the KDC argued that the Court of Appeals decision should be affirmed and that captive self-insurers should not subsumed within the UCSPA. The KDC stressed the Supreme Court’s recent reluctance to expand bad faith liability, analyzed what it means to engage in the business of insurance in Kentucky, and presented practical economic and policy implications supported by academic studies.

Oral arguments will likely be held in this case, and a decision is not expected for several months.

PPOA Welcomes Three New Associates

John “Jack” C. Phillips, Matthew J. Wheatley, and Ryan D. Nafziger have recently been hired as new associates in the Louisville office. Jack graduated from the University of Kentucky College of Law in 2015 and spent a year as a clerk for The Kentucky Supreme Court before joining the firm this summer. He is the son of partners, John W. and Susan Phillips. Matthew J. Wheatley joins the firm after graduating from the University of Kentucky College of Law in 2016. Matt started as a clerk at PPOA during the summer of 2015. Ryan D. Nafziger joins after graduating from the University of Louisville Brandeis School of Law in 2016.