Two unrelated lawsuits were filed just over a week apart against Baptist Healthcare Systems, both claiming medical malpractice.
One lawsuit, filed Nov. 3, claims the company, its orthopedics and sports medicine office, and Dr. Joshua Hill acted negligently in performing an orthopedic surgery in July 2016 on Madison County resident Michael Vanwinkle. The negligence ultimately resulted in his leg being amputated, the lawsuit claims.
The suit alleges that Hill performed surgery involving placing rods or screws in place to repair a complex tibia fracture on Vanwinkle, without being property qualified to do so.
The suit claims Hill created initial incisions, which were in violation of the standard of care, which resulted in the death of tissue, or necrotic tissue, and an infection in the bone.
"Defendants directed a podiatrist to perform what should have been orthopedic care on the plaintiff; then the podiatrist failed to refer the plaintiff to an orthopedic trauma expert and/or failed to obtain consultation from orthopedic, plastic surgery, and/or infectious disease in the care and treatment of (the fracture)," the suit states.
The suit, filed on behalf of Vanwinkle by attorney Thomas K. Herren, asks for judgment including punitive damages, interest and his court costs and attorney's fees. The suit states punitive damages should be awarded because the defendant acted in reckless disregard of Vanwinkle's health and rights.
Two weeks after the filing of the complaint, Nicholas R. Hart of Louisville, attorney for Baptist Health Systems, filed a motion to dismiss the suit, claiming the suit could not be filed in circuit court due to a newly enacted state law that requires all medical malpractice lawsuits first be reviewed by a medical review panel.
The Kentucky Medical Review Panel Act (KRS 216C), which went into effect in late June, was ruled unconstitutional in late October by Franklin Circuit Court Judge Phillip J. Shepherd, after a suit filed by Tonya Claycomb, the mother of a child who the suit alleges suffered brain damage and developed cerebral palsy due to medical malpractice. The lawsuit challenged the constitutionality of the Medical Review Panel Act.
The ruling has been appealed, and the case has been transferred to the Supreme Court of Kentucky, according to that court's records.
Baptist Health's motion to dismiss also states the suit should be dismissed because the statute of limitations for filing a claim had expired.
Kentucky law sets a one-year statute of limitations on medical malpractice claims. The motion to dismiss had passed the Sept. 5, 2016 date the complaint stated the injuries were discovered.
In a response to the motion dated Dec. 1, Vanwinkle's attorney states the suit was filed after the ruling by Judge Shepherd, which, in addition to finding the medical panel review law unconstitutional, prohibited the Cabinet for Health and Family Services Medical Review Panel Branch from enforcing it.
The answer states the suit should be suspended pending completion of the medical review panel process.
It also asserts the date of discovery of the injury listed in the original complaint was erroneous, and the fact Vanwinkle had been wronged and the identity of the person who had wronged him had not been discovered by Sept. 16, 2016. Vanwinkle's attorney filed a motion to allow him to file an amended complaint.
There has been no ruling yet on the motion to dismiss.
A second lawsuit filed against Baptist Health Systems, filed Oct. 26 in Madison Circuit Court, claims Brenda Combs suffered severe injury while being prepared for surgery on her elbow, when a Baptist Health employee attempted to tape her eyelids down but instead placed the tape on her eyes.
The suit does not specify the injury, but states Combs "has suffered and will continue to suffer serious and permanent injuries to her person, both mental and physical, present and future pain, discomfort, mental and physical anguish for the injuries she sustained."
Combs is represented by attorney Kenneth Fouts of Lexington.
Attorneys for Baptist Health also filed a motion to dismiss in the case, citing the state medical review panel act.
After Combs' response to the motion, Madison Circuit Court Judge Jean Logue ruled on Dec. 14 the case be held in abeyance pending a ruling by the Supreme Court of Kentucky on the constitutionality of the medical review panel law.