Louisville Personal Injury – Medical Malpractice Case Against Home Health Care Company and Nurse Case.
In October of 2007, Mr. Ira Eldridge was injured and required a catheter to be placed into his right atrium of his heart. (See Mary Breckinridge Healthcare, Inc. v. Eldridge, 275 S.W.3d 739 (Ky.App. 2008). In this case, a nurse Johnson made two visits to Mr. Eldridge’s home. The first at 10:20am where she changed the dressing of the catheter site but this time used scissors to assist. Id. During that visit a leak developed and medication dripped onto Plaintiff’s chest. Id. Plaintiff did call the home healthcare center back to report the leak and had Nurse Johnson come back out at about 4:35pm. Id. At this second visit, a witness Mr. Mullins testified that this time it seemed she was pulling and tugging on the catheter. Id. By the end of the visit, Nurse Johnson recommended that Plaintiff go to the hospital. Id. Plaintiff called his wife Sylvania to take him. Id. During this conversation Sylvania testified the he sounded nervous, had problems breathing and was coughing. Id. When she met him, Plaintiff looked scared, excited, and had trouble breathing. Id. During the ride, Plaintiff told Sylvania what had happened. Id.
Sylvania at trial testified as to what Plaintiff had said about Nurse Johnson trying to manipulate the catheter and so forth. Id. She also testified how she told the ER doctors what Plaintiff had told her. Id. Plaintiff died the next day. Id. The medical reports showed that the catheter was dislodged and ultimately found under the right clavicle instead of in the right atrium of the heart, with a crack in it. Id. Plaintiff’s personal injury lawyer was able to bring forward the testimony needed.
This trial came down to Sylvania’s testimony and what she could or could not repeat as to what she was told by the deceased Plaintiff. This was a case about ‘hearsay’ testimony. Id.
This Court following other Kentucky courts stated that it was recognized and followed “that a patient’s history related to a treating doctor by a member of the patient’s family was admissible.” Id. Thus, the information Sylvania gave to the ER doctors that Plaintiff had given was allowable. Plaintiff’s Kentucky personal injury attorney was able to get into evidence the testimony he needed.
The trial Court allowed the statements of Sylvania about how Nurse Johnson handled the first and second visit as an excited utterance. An excited utterance is “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Id. It has to be made “from nervous excitement and not after reflection or deliberation.” Id. You have to look at the degree of excitement generated by an event and “the time and opportunity for declarant to regain composure in order to fabricate an answer before communication to another.” Id. Sylvania testified that when she spoke to Plaintiff he sounded nervous and had breathing problems over the phone. Id. And when she finally met him, he did relate the facts of Nurse Johnson’s visit earlier that day. Id. The second visit of Nurse Johnson was about 30 minutes prior to Sylvania meeting up with him. Id.
Based on what Sylvania testified to, Nurse Johnson should not have done anything to Plaintiff and should have called a doctor immediately. Id. It was the excitement from the second visit that the Court allowed the statements to come in. Id. While it is usually customary for a person to show outward manifestations of excitement in order to admit evidence under the excited utterance exception, it does not have to be so every time. Id. The Court stated that you have to look at the circumstances that generated the excitement. Id. A person may appear calm but that does not mean he is not in mental turmoil or excited nor that his capacity for reflection and deliberation is not stilled. Id. In that the factual findings of the trial court were not clearly erroneous and there was no abuse of discretion in letting in the statements, the statements were allowed. Id.
The statements were allowed in under either the medical treatment hearsay rule or the excited utterance exception rule.
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