04 February, 2025

Sword and Dobrowolski Utilize Knowledge of Legal Intersectionality and Procedural Strategy to Secure Dismissal Following Passing of Plaintiff in Medical Malpractice Suit

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In: Verdicts

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LOUISVILLE HUB — QPWB attorneys Brandon C. R. Sword and Alexandria Dobrowolski recently obtained a significant victory for a client, an orthopedic surgeon, in a medical malpractice lawsuit, demonstrating the firm's expertise in medical malpractice defense and its commitment to achieving successful outcomes for healthcare professionals.

Overview of the Case

The case involved a medical malpractice claim against an orthopedic surgeon. This lawsuit was one of several filed against the surgeon, his former practice, and three hospitals where he performed surgeries as an orthopedic surgeon duly licensed in the Commonwealth of Kentucky.

While the lawsuit was pending, the plaintiff passed away. This event introduced a new layer of complexity to the case, as it triggered specific procedural requirements for continuing the lawsuit. Plaintiff passed away and counsel for Plaintiff filed an Application to Revive Action and Motion for Appointment of Warning Order Attorney requesting an application to revive the subject action in the name of the representative or successor. However, no such individual had been appointed. It is the family of Plaintiff who has the responsibility to handle her Estate and revive this action accordingly. Plaintiff’s family failed to revive the action in accordance with KRS 395.278, and there was no personal representative that could be substituted. Therefore, the Application and Motion were improper. Further, by the time a warning order attorney could be appointed, Plaintiff’s Estate would have failed to revive this action.

Key Difference-Makers

Trial Participants:

Administrative Support:

  • Jolene Upton - Paralegal  
  • Candace Sewell - Legal Assistant  
  • Missy Works - Legal Secretary

Claims Made Against Our Client

The plaintiff's complaint alleged a breach of the standard of care, but no specific injury. The complaint alleged that the surgeon used medication, mainly Ambien, didn’t tell the patient, thereby vitiating the patient’s informed consent and converting the Plaintiff’s procedure into a “medical battery.” Further, the complaint alleged negligence per se. However, no one alleges they received no benefit from the procedure and the follow-up care our client provided to them.

Rather, each complaint alleges that our client’s failure to disclose his alleged drug use vitiated the informed consent given by each patient, or the patient’s proxy, converting the “touching” during the procedure to an unauthorized one or a “medical battery.” In responding to the complaints, the surgeon counterclaimed for declaratory judgment concerning his rights, duties and obligations under Kentucky’s informed consent statute.

Defense Strategy

The QPWB team strategically focused on a procedural aspect of the case. After the plaintiff passed away, her counsel failed to properly revive the action within the timeframe required by Kentucky law (KRS 395.278). QPWB attorneys argued that the plaintiff's family, not her counsel, had the responsibility to revive the action through a personal representative. This procedural deficiency formed the basis for the Motion to Dismiss. KRS 395.278 requires that an application to "revive" an action shall be made within one year of the death of a party. "Revival of action" is defined as occurring when a personal representative substitutes for a deceased party so that the action is brought to life again. Id. 1 Under KRS 395.278 and Kentucky Rule of Civil Procedure 25.01, when a party dies during the pendency of an action, the personal representative of the decedent must be substituted as a party within one year for the action to be revived. The 2 revival statute allows the dead (or abated) suit to be revived. Nevertheless, the action in the name of the decedent is dead and cannot be prosecuted. 3  

Once Plaintiff’s counsel attempted to revive the action and appoint a Warning Order Attorney, we diligently reviewed all applicable case law and applicable Kentucky statutes that governed this niche issue. Typically, a family member or representative revives the action on behalf of a deceased Plaintiff, but Plaintiff’s counsel was attempting to do so under Kentucky’s Next Friend Statute on behalf of Plaintiff’s minor daughter, which was not applicable in this case. Plaintiff was married and her husband, as well as her living relatives, had ample opportunity and notice to revive the suit. We were able to present this information to the Court and receive a favorable ruling.

Impact on Final Outcome

The court agreed with QPWB's argument and dismissed the case. The judge recognized that the attempt to revive the action and appoint a Warning Order Attorney simultaneously was improper and that the Plaintiff's estate had failed to comply with the statutory requirements for reviving the action. By focusing on the procedural aspects of the case, Sword and Dobrowolski were able to secure a dismissal. This strategic approach resulted in a swift and favorable outcome for the client. QPWB was able to clearly present the applicable case law and statutes, as well as the facts of the issue before the Court. Doing so acted as a simple roadmap which allowed all parties and the Court to see the only option was a dismissal of the suit.

Unique Aspect of the Case

This case presented a unique challenge due to the intersection of medical malpractice claims with estate law and procedural rules. The plaintiff's attempt to revive the action through Kentucky’s Next Friend statute on behalf of Plaintiff’s minor daughter, which was not applicable in this case, created a novel legal issue.

Predicting the Future

This victory underscores QPWB's ability to identify and leverage procedural advantages in complex litigation. The firm's expertise in navigating the intersection of different areas of law, such as medical malpractice, estate law, and civil procedure, provides a significant advantage for clients facing similar legal challenges.

This win reinforces QPWB's commitment to providing comprehensive and effective legal representation to healthcare professionals in Kentucky and beyond. While it is important to have candor to both the Court and opposing counsel, it is important to act swiftly and diligently when niche issues arise that provide an avenue for dismissal for our clients. While Plaintiff’s counsel’s attempts were not directly in opposition to the heart of Kentucky’s revival rationale, we were able to show this avenue was not considered by the General Assembly.

About QPWB

Quintairos, Prieto, Wood & Boyer, P.A., is the largest minority and women-owned law firm in the nation. QPWB serves a diverse range of industries with over 100 areas of practice, providing expert representation for businesses and their leaders in litigation, regulatory, and corporate matters.

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