Archive for August, 2010

Ct. of Appeals Judge Kelly Thompson “sanctions” fisherman in humorous order.

Tuesday, August 31st, 2010

Court of Appeals Judge Kelly Thompson from Bowling Green, Ky. has issued an order “sanctioning” an attorney who sought a continuance of an Oral Argument in order to go fishing. 

 Judge Thompson demonstrates that he is a jurist who has a sense of humor and he has his priorities straight.

 This order provides a reference source for almost every important quote ever made regarding fishing and fishermen.

 We know you will enjoy this as much as we did.

 -Judge Stan Billingsley (Ret.)-

(actual order)

Commonwealth of Kentucky

Court of Appeals

 

NO. 2009-CA-000027-MR

SHARON KULKA, AS TESTATRIX OF

THE ESTATE OF STEPHEN M. KULKA

AND SHARON KULKA, INDIVIDUALLY                                                        S

                                      APPEAL FROM DAVIESS CIRCUIT COURT

v.                                 HONORABLE THOMAS O. CASTLEN, JUDGE

ACTION NO. 05-CI-00615

KISHOR N. VORA, M.D.; OWENSBORO

MEDICAL HEALTH SYSTEM, INC.;

OWENSBORO MEDICAL PRACTICE, LLC,

D/B/A OWENSBORO HEART AND VASCULAR;

AND OWENSBORO MEDICAL PRACTICE,

D/B/A INTERMEDIATE CARE CENTER S

ORDER

ASSESSING SANCTIONS AGAINST COUNSEL FOR

OWENSBORO MEDICAL HEALTH SYSTEMS, INC.

** ** ** ** **

BEFORE:  CAPERTON, LAMBERT AND THOMPSON, JUDGES. 

 THOMPSON, JUDGE:  Appellee, Owensboro Medical Health Systems, Inc., has filed a motion to continue oral argument which contains extraneous and incompetent statements unrelated to the issue of the continuance of the oral argument.  The frivolity and humor exhibited demands that this Court invoke sanctions against appellee’s attorney for his conduct. 

                        For example, the oral argument is scheduled for Tuesday, August 10, 2010.  However, the affidavit by counsel states that one week in March, he goes to Florida or Arizona for major league spring training baseball games.  In addition, he states: 

“Our three children gave my wife and me for our 50th wedding anniversary a trip to New York City and Canada on September 17, 2010 through September 27, 2010.” 

This is obviously an apparent attempt to evoke the Court’s sympathy and allow the continuance of the oral argument.  In addition, appellee’s counsel states: 

“I have been hesitant to file this motion.  I would not want this Court to think that I take lightly my responsibilities as an attorney.  I am a serious baseball fan and a not so serious fly fisherman.” 

                        In addition, appellee’s counsel states: 

“Because I am not sure how many more fly fishing trips I have left in me, I did want to see if I could both argue this case on appeal at a later date and be able to keep my fishing plans.” 

Clearly, these statements are extraneous and not relevant to the oral argument scheduled for Tuesday, August 10, 2010.

                        First, it should be stated that this is an Order and a decision by this Judge of this panel and not by this Court.  Judge Caperton has deferred to Judge Thompson and Judge Lambert has acquiesced. 

                        In deciding this motion, we must weigh the importance of carrying out the business of the judiciary in a timely manner against the importance of fishing.  There being no case law on this subject, this Court has turned to the wisdom passed down by those familiar with fishing and makes the following findings: 

                        “A bad day of fishing is better than a good day of work.”  S. Frank            Smith

                        “If fishing is interfering with your business, give up your business.”            Alfred W. Miller 

                        “Only an extraordinary person would purposely risk being outsmarted        by a creature often less than twelve inches long, over and over again.”    Janna Bialek 

                        “If fishing is like religion, then fly fishing is the high church.”  Tom            Brokaw

                        “Give a man a fish and you have fed him for a day.  Teach a man to

                        fish and he will sit in a boat all day and drink beer.”  Quinten          Marquette

                        “The solution to any problem — work, love, money, whatever — is to           go fishing, and the worse the problem, the longer the trip should be.”         John Gierach 

                        “If all politicians fished instead of spoke publicly, we would be at   peace with the world.”  Will Rogers 

                        “There is certainly something in angling that tends to produce a

                        serenity of the mind.”  Washington Irving

                        “The Gods do not deduct from man’s allotted span, the hours spent in

                        fishing.”  Babylonian proverb.

                        “It has always been my private conviction that any man who puts his

                        intelligence against a fish and looses has it coming.”  John Steinbeck

                        “Many men go fishing all of their lives without knowing that it is

                        not fish that they are after.”  Henry David Thoreau

                        “All fishermen are liars; it’s an occupational disease.”  J. David Cole,          Sr.       

                        “Are all fishermen liars? Or do only liars fish?”  William Sherwood             Fox (1954)

                        “Fishing is boring unless you catch an actual fish and then it is

                        disgusting.”  Dave Barry

                        “There is a fine line between fishing and just standing on the shore

                        like an idiot.”  Steven Wright

                        “There is no greater fan of fly fishing than the worm.”  Patrick F.    McManus (1979)

                        “Fishing is much more than fishing.  It is the great occasion when

                        we may return to the fine simplicity of our forefathers.” 

                        Herbert Hoover

                        “Men and fish are alike, they both get into trouble when they open

                        their mouths.”  Steve Hixson

                        “A fishing pole is a stick with a hook at one end and a fool on the

                        other.”  Samuel Johnson (1749)

                        “Fishing is a delusion entirely surrounded by liars and old clothes.”

                        Don Marquis (1912)

                        “Lawyers, like fish, are entitled to their own existence.”  Mike         Pearson

                        “A fisherman is a man who spends rainy days sitting around on

                        the muddy banks of rivers doing nothing because his wife won’t

                        let him do it at home.”  Sam C. Potter, Jr.

                        “Give a man a fish and he has food for a day.  Teach him how to fish         and you can get rid of him for the entire weekend.”  Paula Potter

                        “Calling fishing a hobby is like calling brain surgery a job.”  Paul     Schullery

                        “Nothing makes a fish bigger than almost being caught.”  Charles

                        English, Sr.

                        “There are two types of fishermen, those who fish for sport and those

                        who fish for fish.”  Charlie Moore

                        “Fly fisherman are born honest, but they get over it.”  Ed Zern

                        “Fish come and go, but it is the memory of afternoons on the

                        stream that endure.”  E. Donnall Thomas

                        “Some go to church and think about fishing.  Others go fishing and

                        think about God.”  Tony Blake

                        “I once gave up fishing.  It was the most terrifying weekend of my

                        life.”  Anon

                        “Don’t tell fish stories where the people know you.”  Mark Twain

                        Therefore, after careful consideration, this Court has no doubt that the importance of appellee’s counsel’s annual fly fishing trip far outweighs the importance of having oral arguments as scheduled.

                        It is therefore ORDERED that this Court sanctions appellee’s counsel as follows:  Counsel shall report to Court of Appeals courtroom in Frankfort, Kentucky, on the 13th day of September, 2010 at 12:44 p.m. and report to this Court the results of the fishing trip which is the subject of this Order. 

                        Even though counsel is a fisherman, this Court will trust his report as an officer of the court as to the size and quantity of fish. 

ENTERED: _______________ _____________________________

KELLY THOMPSON, JUDGE

KENTUCKY COURT OF APPEALS

Ky. Sup. Ct. Amends “open and obvious” rule in slip and fall cases – Comparative Negligence applied.

Saturday, August 28th, 2010

On August 26, 2010 the Ky. Supreme Court created an exception to the “open and obvious” defense in slip and fall cases.   The “open and obvious” defense still exists but is now subject to comparative negligence review.

 The Court stated: “…That harm from an open and obvious danger can sometimes be foreseeable suggests that there should be some remaining duty on the land possessor.”

LawReader synopsis:

For full text of case click case number  2008-SC-000464-DG.pdf

TO BE PUBLISHED

FROM BREATHITT CIRCUIT COURT

KENTUCKY RIVER MEDICAL CENTER; AND JACKSON HOSPITAL CORPORATION

 

VS.

 

MCINTOSH, IRENE

OPINION OF THE COURT BY JUSTICE NOBLE- AFFIRMING

SCHRODER, J., DISSENTS BY SEPARATE OPINION IN WHICH SCOTT, J., JOINS.

 

a land possessor may be held liable for open and obvious dangers if “the possessor should anticipate the harm despite [its] . . . obviousness.”

 

The lower courts should not merely label a danger as “obvious” and then deny recovery. Rather, they must ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger.

OPINION OF THE COURT BY JUSTICE NOBLE

AFFIRMING

Kentucky River Medical Center and Jackson Hospital Corporation (collectively “the Hospital”) appeal from a decision of the Court of Appeals, which affirmed a judgment of the Breathitt Circuit Court.

The principal issue on appeal is whether the trial court should have granted the Hospital’s motion for ajudgment notwithstanding the verdict because the open and obvious doctrine barred the plaintiff’s recovery as a matter of law.

 For the following reasons, the Court of Appeals is affirmed.

McIntosh had helped transport about 400 patients to this emergency room entrance before, and she had always navigated past the protruding curb without incident. However, this time she tripped and fell over it, suffering a fractured hip and sprained wrist. McIntosh sued the Hospital, arguing that the

curb was an unreasonably dangerous condition which caused her injuries. While moving towards the entrance, McIntosh’s attention was not focused on the curb; rather, she remained focused on attending to the critically ill patient .

The Hospital moved the trial court for summary judgment, claiming that the open and obvious doctrine barred McIntosh’s recovery as a matter of law.

After considering the parties’ briefs, the trial court summarily denied this motion.

Ultimately, the jury found the Hospital liable.

The Hospital appealed to the Court of Appeals, which affirmed because “the Hospital could reasonably expect that a paramedic treating a critically-ill patient could be distracted, could forget (if she had ever observed it) that the curb was uneven, and could fail to protect herself against it.” This Court

granted discretionary review to determine whether the open and obvious doctrine should have completely barred McIntosh’s cause of action.

The modern approach is consistent with Kentucky’s focus on foreseeability in its analysis of whether or not a defendant has a duty. This Court has previously stated that “[t]he most important factor in determining whether a duty exists is foreseeability.” Pathways v. Hammons, 113 S.W .3d 85, 89 (Ky . 2003) (citing David J. Leibson, Kentucky Practice, Tort Law § 10 .3 (1995)) . That harm from an open and obvious danger can sometimes be foreseeable suggests that there should be some remaining duty on the land possessor.

By concluding that a danger was open and obvious, we can conclude that the invitee was negligent for falling victim to it, unless for some reason “to a reasonable man in his position the advantages of [encountering the danger] would outweigh the apparent risk .” Restatement (Third) of Torts:

Liab . Physical Harm § 51 cmt. f. But this does not necessarily mean that the land possessor was not also negligent for failing to fix an unreasonable danger in the first place . Under our rule of comparative fault, the defendant should be held responsible for his own negligence, if any.

For this reason, to allow known or obvious conditions to always absolve land possessors from any liability “would be to resurrect contributory negligence” in such cases . Harrison, 768 P.2d at 1325 .

…our most recent case on-point, Horne v. Precision Cars of Lexington, Inc., 170 S.W.3d 364 (Ky. 2005) . In Home, this Court endorsed the Restatement (Second) view throughout the opinion. Id. at 367-70 . And, in particular, Home cites section 343A(1) of the Restatement and its supporting commentary for the proposition that a land possessor may be held liable for open and obvious dangers if “the possessor should anticipate the harm despite [its] . . . obviousness.”

 

The lower courts should not merely label a danger as “obvious” and then deny recovery. Rather, they must ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger. If the land possessor can foresee the injury, but nevertheless fails to take reasonable

precautions to prevent the injury, he can be held liable . Thus, this Court rejects the minority position, which absolves, ipso facto, land possessors from liability when a court labels the danger open and obvious.

However, this view also alters the position of the person injured by an open and obvious danger to the extent that only under extremely rare circumstances could a plaintiff avoid some share of the fault under comparative negligence . While “open and obvious danger” is no longer a complete defense under the Restatement, it is nonetheless a heightened type of danger which places a higher duty on the plaintiff to look out for his own safety.

Such a condition, being open and obvious, should usually be noticed by a plaintiff who is paying reasonable attention . Yet the plaintiff is not completely without a defense to this : there could be foreseeable distraction, or the intervention of a third party pushing the plaintiff into the danger, for

example . Even in such situations, a jury could still reasonably find some degree of fault by the plaintiff, depending on the facts .

Thus, even though the curb may have been open and noticeable to some extent, in this case “the possessor has reason to expect that the invitee’s attention may be distracted” from it.

Restatement (Second) § 343A cmt. f. The Hospital had very good reason to believe McIntosh would be tending to the patient, not to each step she was taking. In addition, “the possessor has reason to expect that the invitee[] . . . will forget what he has discovered.”

III. Conclusion

For the foregoing reasons, the Court of Appeals is affirmed

.

Minton, C.J . ; Abramson, Cunningham and Venters, JJ ., concur.

Schroder, J., dissents by separate opinion in which Scott, J., joins.

SCHRODER, J., DISSENTING: Because I believe the open and obvious doctrine concerns a question of duty, I respectfully dissent. The other hospitals McIntosh served had no curbs to trip over . Appellants had a curb, which contained no building code or OSHA violations, and was open and obvious.

Scott, J., joins.

COUNSEL FOR APPELLANTS:

Martin Allen Arnett

William P. Swain

Denis Carl Wiggins

William Baxter Orberson

Phillips, Parker, Orberson 8s Arnett, PLC

716 West Main Street, Suite 300

Louisville, Kentucky 40202

COUNSEL FOR APPELLEE :

Christopher W. Goode

Bubalo, Hiestand 8s Rotman, PLC

1344 South Broadway

Lexington, Kentucky 40504

Attorney General Conway Names 2010 Outstanding Commonwealth’s and County Attorneys

Friday, August 27th, 2010

Office of the Attorney General
Attorney General Conway Names 2010 Outstanding Commonwealth’s and County Attorneys

Press Release Date:  Thursday, August 26, 2010  
Contact Information:  Shelley Catharine Johnson
Deputy Communications Director
502-696-5659 (office)  

 

Attorney General Jack Conway today presented the awards for the 2010 Outstanding Commonwealth’s and County Attorneys at the Kentucky Prosecutor’s Conference at the Lexington Convention Center. Nearly 800 prosecutors, Commonwealth’s Attorneys, County Attorneys and staff from across Kentucky are attending the three-day conference sponsored by the Office of the Attorney General.

The recipients of the 2010 Outstanding Commonwealth’s Attorney Awards are:

Linda Tally Smith, Commonwealth’s Attorney for the 54th judicial circuit representing Boone and Gallatin Counties since 2000;

Jim Crawford, Commonwealth’s Attorney for the 15th judicial circuit representing Carroll, Grant and Owen Counties since 1989; and

G.L .Ovey, who serves as Commonwealth’s Attorney for the 56th judicial circuit representing Caldwell, Livingston, Lyon and Trigg Counties since 1988.

Upon presenting the awards to Smith and Crawford, General Conway said, “There are many reasons why Linda and Jim deserve this award – chief among them is the job they did serving as special prosecutors in the drunken- driving death of one of our fellow prosecutors. Doug Wright, Commonwealth’s Attorney from the 18th judicial circuit, died last year after a truck driver who was under the influence hit him while he was driving home from work. Linda volunteered to prosecute the case and chose Jim to assist her. A jury recently convicted the driver of wanton murder. I appreciate the time and effort Jim and Linda put into this case and every case that comes across their desks.”

When presenting Ovey’s award General Conway said, “G.L. is a former president of the Commonwealth’s Attorneys Association, a current two-term member of the Prosecutors Advisory Council, and a veteran prosecutor who has argued some of the most difficult cases in the history of his circuit. Recently he prosecuted Kevin Wayne Dunlap, who killed three children and stabbed and raped their mother before setting the home on fire. G.L. secured guilty convictions and a jury returned a recommendation of six death sentences.”

The recipients of the 2010 Outstanding County Attorney Awards are

Jeff Edwards, Marshall County Attorney since 1997, and

Tom Weddle, Casey County Attorney since 1986.

“Jeff is a dedicated member of the Prosecutors Advisory Council. In addition to being active in his profession, Jeff is active in his community. He is a local businessperson, past president of the Kiwanis Club and past chairman of Four Rivers Behavioral Health in Benton,” General Conway said.

Of Weddle, General Conway stated, “Tom is a true gentleman. He takes pride in serving the people of Casey County as their County Attorney. Tom previously served as Master Commissioner of the Casey Circuit Court. Tom’s warmth and insight are appreciated by his peers and his constituents.”

Photos of this year’s award winners are available on the Attorney General’s website:

http://ag.ky.gov/multimedia/photos/2010pacconf.htm

Speaker of the House Greg Stumbo Wins Disputed Child Support Claim Filed by Travis A. Fritsch – Retroactive Child Support Not Allowed

Friday, August 27th, 2010

 

RENDERED: AUGUST 27, 2010; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2009-CA-000278-MR

TRAVIS A. FRITSCH APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT

v. HONORABLE THOMAS L. CLARK, JUDGE

ACTION NO. 01-CI-01677

GREGORY D. STUMBO APPELLEE

OPINION

AFFIRMING

** ** ** ** **

BEFORE: TAYLOR, CHIEF JUDGE; DIXON, JUDGE; HENRY,1 SENIOR

JUDGE.

DIXON, JUDGE: Appellant, Travis A. Fritsch, appeals from orders of the Fayette

Circuit Court denying her petition for declaratory relief and granting partial

1 Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110 (5)(b) of the Kentucky Constitution and Kentucky Revised Statute(s) (KRS) 21.580. summary judgment in favor of Appellee, Gregory D. Stumbo, in this child support matter.

Finding no error, we affirm.

Fritsch and Stumbo, unmarried, are the biological parents of Elliott

Maddox Fritsch, born August 23, 1988. Both prior to and after Elliott’s birth, the

parties attempted to negotiate an agreement resolving custody, support and other

related issues. On November 15, 2000, the parties signed a document captioned

“Child Support Agreement,” which contained the following language:

WHEREAS, Fritsch and Father2 desire to acknowledge

that the Father’s child support obligation for Elliot

Maddox Fritsch and other obligations to contribute to his

medical, dental, insurance, and other legally mandated

needs may be enforced in an amount as determined by

any appropriate court of law from the date of this

agreement and the beginning date of Father’s obligations

shall not be forestalled due to the failure of the parties to

conclude a comprehensive Custody and Support

Agreement.

1. Fritsch and Father agree that in the event a court action

by Fritsch to obtain child support and other obligations of

father for Elliott Maddox Fritsch, then the Father’s obligation for same shall become effective as of the date of this agreement. The Father acknowledges that he or

his estate shall be bound by this agreement. It is undisputed that the above is the only written agreement executed by the parties.

The record reveals that the parties met again in December 2000 for the

purpose of negotiating a more specific superseding agreement. And in February

2001, Fritsch’s counsel sent Stumbo a draft of a custody and support agreement

2 The agreement only refers to Stumbo as “Father.”

executed by Fritsch. However, Stumbo did not agree to all of the terms and

although further negotiations continued into March 2001, a new written agreement

was never executed by both parties.

In May 2001, Fritsch filed a declaratory judgment action in the

Fayette Circuit Court. Therein, Fritsch claimed that on March 15, 2001, the parties

had reached an agreement regarding the custody and support of Elliott and that

Stumbo had agreed to sign the document on the condition that a paternity test

verified that he was, in fact, Elliot’s natural father. However, Stumbo never

executed said agreement. Thus, Fritsch sought a declaration that the unexecuted

March 2001 agreement was enforceable and binding upon the parties. Fritsch also

filed a petition seeking full and permanent custody of Elliott and requesting “past,

current and future child support and medical expenses.”

In June 2003, Stumbo filed a motion for partial summary judgment

claiming that enforceability of the unsigned March 2001 agreement was barred by

the Statute of Frauds because its terms could not be “performed within one year

from the making thereof.” KRS 371.010(7).

Following a hearing and additional briefing, the trial court entered an order on August 19, 2004, denying the motion for partial summary judgment. In so doing, the court observed that appellate courts having addressed the issue have drawn a distinction in child support matters:

The distinguishing factors [sic] as enumerated by the court is the contingency of the minor child dying within the initial year of any support obligation. With the

potential of that contingency the courts have found that such agreements are outside of the statute of frauds.

-3-

Myers v. Saltry, Ky., 173 S.W. 1138 (1915), Conley’s

Administrator, et al. v. Hall, Ky., 86 S.W.2d 1015

(1935).

In November 2005, Stumbo filed a second motion for partial summary

judgment arguing that Fritsch’s claim for a liquidated sum for retroactive child

support3 was barred by KRS 406.031, as well as by the language of the November

2000 written custody and support agreement. Specifically, Stumbo contended that

the parties’ prior oral negotiations merged into the November 2000 agreement and

that pursuant to that agreement any child support obligation would become

effective on the date that the agreement was signed.

On October 19, 2006, the trial court conducted a bench trial on

Fritsch’s declaratory action and, by opinion rendered on November 21, 2006, the

court held:

The issue presented in this declaratory action is whether

or not a purported settlement agreement submitted by

[Petitioner] to [Respondent] on or about February 15,

2001 and signed by [Petitioner] but unsigned by

[Respondent] is a valid and enforceable agreement.

The within case is a clear example of two parties

and their counsel having different and distinct

recollections of the underlying facts. In its simplest

terms Petitioner and her counsel believe and testified the

parties came to a full agreement as to all terms in the

December 2000 meeting and Petitioner’s counsel is

convincing regarding the telephone call he received in

March 2001 from Respondent’s counsel indicating

Respondent was in agreement with the tendered

document, with the addition of Paragraph 15 pertaining

 By November 2005, the only remaining issue was retroactive child support. Pursuant to a 2002 mediation agreement, Stumbo was paying current child support in excess of the statutory guidelines.

Further, Stumbo conceded that custody was not in dispute.

to paternity testing. Conversely, Respondent and his

counsel have testified there may have been a general

understanding in principal regarding various issues

discussed in the December 2000, meeting, however, no

agreement was reached as to specific terms and

conditions. Further, Respondent’s counsel was likewise

convincing he at no time indicated to Petitioner’s counsel

that Respondent was in agreement with the February 15

document.

. . . .

It is impossible for the Court to determine which of the

parties or counsel has the faulty recollection or

misinterpretation of the discussions that may have

occurred between the parties and/or counsel. . . . The

Court cannot find as a matter of law based upon the facts

presented in this matter that a specific meeting of the

minds occurred whereby all material and essential terms

were specifically agreed to between the parties and there

were no issues left for future negations.

 

On January 8, 2009, the trial court denied Fritsch’s Kentucky Rules of

Civil Procedure (CR) 59.05 motion to alter, amend or vacate its opinion. In the

same order, the court also granted Stumbo’s partial summary judgment motion as

to retroactive child support, finding that the parties were bound by the November

2000 written agreement:

The parties agreed, in writing, in their November 15,

2000 agreement, that any child support obligations for

which Respondent may become obligated, either by way

of voluntary agreement or a result of court action would

be effective as of the date of this November 15, 2000

agreement. The Court finds the parties merged into their

written agreement all negotiations leading up to said

agreement and accordingly, any obligation for child

support, including past or retroactive child support, was

restricted, by agreement, to the date of the agreement.

Fritsch now appeals to this Court as a matter of right.

-5-

Fritsch argues herein that the trial court erred in ruling that the

November 2000 agreement was dispositive of her claim for retroactive child

support. Rather, she contends that the agreement was solely for the purpose of

fixing a date to exclude the application of KRS 406.031. After reviewing the

record herein, we must disagree.

Our standard of review of findings of fact made by the trial court after

a bench trial is whether they are clearly erroneous. CR 52.01. Findings of fact are

clearly erroneous if they are not supported by substantial evidence. Moore v.

Asente, 110 S.W.3d 336 (Ky. 2003). Substantial evidence is evidence of a

probative value that a reasonable person would accept as adequate to support a

conclusion. Id. As a reviewing court, we will not disturb the trial court’s findings

that are supported by substantial evidence, even if we would have reached a

contrary finding. Id. And, as concerns our review, we must give due regard to the

opportunity of the trial court to judge the credibility of the witnesses. CR 52.01.

Finally, the trial court’s conclusions of law, reached after making its findings, are

subject to an independent de novo appellate review. Gosney v. Glenn, 163 S.W.3d

894 (Ky. App. 2005).

As noted by the trial court, claims for retroactive child support in

paternity actions are precluded beyond fours years prior to the initiation of the

paternity action. KRS 406.031.

As Elliott was thirteen years old at the time Fritsch filed the declaratory judgment action in 2001, she was clearly precluded from claiming retroactive child support under the statute. Thus, the only mechanism by which Fritsch could prevail on her claim was by way of contract or agreement between the parties.

However, the trial court clearly found, and we agree, that the unexecuted March 15, 2001 agreement was not enforceable. As such, the only contract or agreement between the parties is the written November 2000 document, which unequivocally provides that, [i]n the event a court action by Fritsch to obtain child support and other obligations of Father for Elliot Maddox Fritsch, becomes necessary, then the Father’s obligation for same shall become effective as of the date of this agreement. (Emphasis added).

The trial court relied upon the rationale set forth in Childers & Venters, Inc. v. Sowards, 460 S.W.2d 343, 345 (Ky. 1970), wherein the Court observed,

Where the parties put their engagement in writing all

prior negotiations and agreements are merged in the

instrument, and each is bound by its terms unless his

signature is obtained by fraud or the contract be reformed

on the ground of fraud or mutual mistake, or the contract

is illegal. (Internal citations omitted).

See also Bryant v. Troutman, 287 S.W.2d 918, 920 (Ky. 1956) (“When the

negotiations are completed by the execution of the contract, the transaction, so far

as it rests on the contract, is merged into the writing.”)

We can find no support for Fritsch’s claim that the “unexpressed

purpose” of the November 2000 agreement was merely to avoid the application of

KRS 403.031. While we agree that the parties had not concluded their negotiations

in so far as a specific amount of support had not been determined, the language of

-7-

the agreement with respect to the effective date of Stumbo’s obligation is clear and

unambiguous. As noted by Kentucky’s highest court in O.P. Link Handle Co. v.

Wright, 429 S.W.2d 842, 847 (Ky. 1968):

[W]hen two intelligent parties have read the

contract before signing it, and one thereafter says it

meant something different, or was subject to some

unexpressed condition, reservation, limitation, proviso, or

understanding, but the other says it meant just what it

said, no more and no less, it is our opinion that stability

and a salutary confidence in the written word requires the

instrument itself to prevail.

Based upon the plain language of the November 2000 agreement, we

conclude that the trial court correctly determined that “the parties merged into their written agreement all negotiations leading up to said agreement and accordingly, any obligation for child support, including past or retroactive child support, was restricted, by agreement, to the date of the [November 2000] agreement.”

 

Fritsch next argues that because Stumbo breached the November 2000

agreement, he cannot now rely on such to defeat her claim for retroactive child

support. Essentially, Fritsch contends that despite Stumbo’s acknowledgement in

the November 2000 agreement that he was Elliott’s natural father, he later

contested paternity and insisted upon genetic testing. Fritsch characterizes

Stumbo’s actions as a material breach of the November 2000 agreement.

At the outset, we note that Fritsch concedes that this issue was not

presented to the trial court, but urges us to review such as palpable error under

Kentucky Rules of Evidence (KRE) 103.4

Notwithstanding the procedural deficiency, however, we fail to perceive how Fritsch would benefit even if this Court were to find that Stumbo breached the November 2000 agreement.

Repudiating the contract in its entirety has no bearing upon Fritsch’s ability to

claim retroactive child support. Statutory law clearly prohibits it. Further, the trial

court ruled, and we agree, that Fritsch failed to adequately prove there was a

“meeting of the minds” in March 2001 such that the unexecuted agreement was

binding and enforceable. Thus, without the November 2000 agreement, Fritsch is

without any legal mechanism to claim entitlement to retroactive child support.

Nevertheless, we are of the opinion that Fritsch has failed to prove that the alleged

error, if any, affected her substantial rights and resulted in manifest injustice. CR

61.02.

The orders of the Fayette Circuit Court are affirmed.

ALL CONCUR.

4 Stumbo is correct that KRE 103 applies to “[a] palpable error in applying the Kentucky Rules of Evidence . . .” and is not applicable herein. Rather, Appellant’s claim is reviewed under CR 61.02, which provides:

A palpable error which affects the substantial rights of a party may

be considered by . . . the appellate court on appeal, even though

insufficiently raised or preserved for review, and appropriate relief

may be granted upon a determination that manifest injustice has

resulted from the error.

BRIEFS FOR APPELLANT:

Robert E. Reeves

Lexington, Kentucky

BRIEF FOR APPELLEE:

Donald P. Cetrulo

Lexington, Kentucky

-

FAMILY COURT JUDGE TAMRA GORMLEY GIVEN PUBLIC REPRIMAND AND A 45 DAY SUSPENSION FROM JUDICIAL SERVICE AND FORFEITURE OF PAY – ct. finds she denied due process in several cases

Thursday, August 26th, 2010

JUDICIAL CONDUCT COMMISSION UPHELD – JUDGE FOUND TO HAVE DENIED DUE  DUE PROCESS TO LITIGANTS

 The Ky. Supreme Court opinion issued on August 26, 2010 said:

 Incompetent judges can be eliminated at the ballot box.”  Judicial misconduct is different. The Judicial Conduct Commission’s review is not focused merely on the judge’s findings, conclusions, and ultimate

judgment, but on the judge’s demeanor, motivation, or conduct in following (or in not following) the law.

The (Judicial Conduct) Commission conducted its review and concluded the errors in Count I were so egregious that Judge Gormley could not claim the errors were made in good faith.

We believe Judge Gormley’s handling of the matter, together with the egregious rulings, displayed a bias or preconception or a predetermined view against the husband so as to impugn the impartiality and open-mindedness necessary to make correct and sound rulings in the case

For the violations in Count I and Count 11, the Commission imposed a public reprimand and suspended Judge Gormley from her duties as a Family Court Judge, without pay, for a period of 45 days.

A loss of pay for a Family Court judge of 45 days is roughly about $15,000.  Usually such suspensions also deprive the judge of credit towards retirement days for those days of suspension.

For full text of opinion go to:  For full text of case click case number  2009-SC-000736-RR.pdf

Kentucky Judicial Campaign Conduct Committee cautions judicial candidates about soliciting and accepting contributions

Wednesday, August 18th, 2010

 Kentucky Judicial Campaign Conduct Committee cautions judicial candidates about soliciting and accepting contributions

 August 14, 2010

 In a Kentucky case decided July 13, 2010, the U.S. Court of Appeals for the Sixth Circuit held that judicial candidates have First Amendment rights to personally solicit campaign funds and to announce their party affiliation and receive political party endorsements. The appellate court sent the case of Carey v. Wolnitzek back to U.S. District Judge Karen Caldwell to determine the meaning of the word “issue” in the Kentucky Supreme Court rule that prohibits judicial candidates from saying how they will rule on “issues.”

 The Kentucky Judicial Campaign Conduct Committee, a non-profit, non-partisan and non-governmental body, is concerned that the ruling on contributions may undermine the integrity of judicial elections and thus damage public regard for the judiciary. While candidates have a First Amendment right to personally solicit campaign funds, they should recognize the coercion inherent in a judge personally asking lawyers who practice before the judge to give money to the judge’s election campaign.

 All judicial candidates should recognize the appearance of favoritism created by acceptance of substantial funds from a litigant or attorney with business before the court. We believe the better practice is to follow the procedure that has been in place for many years in Kentucky; that is to use a committee to raise campaign funds. We also believe that in order for voters to be fully aware of who is supporting candidates, the General Assembly should require immediate or near-immediate reporting of large contributions between the day that books close for the last pre-election campaign-finance report and the day of the election. Now, contributions during that approximate two-week period are unknown until after the election.

 The Committee also believes that judicial candidates should refrain from making statements about issues that might come before them. Judicial races are not like races for the executive or legislative branches. In those branches of government, candidates routinely promise the voters that they will, if elected, vote a certain way on issues. In judicial races, on the other hand, candidates should only promise to fairly interpret and apply the law and the U.S. and Kentucky constitutions, to treat all litigants fairly and with dignity, and to approach every case with an open mind and without pre-judgment. A judicial candidate who speaks out on issues should remind voters of these obligations, and a candidate who appears to promise how he or she will decide an issue has an obligation to let another judge handle the case if the issue arises in the judge’s court.

 Kentucky Judicial Campaign Conduct Committee Inc.

Released Aug. 12, 2010

Contact: Spencer Noe, chairman, 859-422-7509; Al Cross, secretary, 502-682-2848

LAWREADER ANNOUNCES NEW COLUMN BY HON. JASON NEMES – INSIDE THE KY. SUPREME COURT

Wednesday, August 18th, 2010

NEMES, JASON – INSIDE THE SUPREME COURT

 August 17, 2010

LawReader has added  Jason Nemes as a columnist.  He will focus on the Supreme Court and our Justices.

Few people short of someone who has served on the Supreme Court, have as much knowledge of this subject than Jason Nemes.  Jason previously was employed as Legal Counsel for Chief Justice Lambert, and later was Director of the Administrative Office of the Court.  He is now practicing law in the Louisville office of Dinsmore and Shohl.

In his inaugural article Nemes gives us an inside look on the Ky. Sup. Ct.  One topic that is fascinating  is the voting tendency of the various Justices.

If you have ever wondered how the Sup. Ct. works behind closed doors you will find Jason’s articles fascinating.

Kentucky Judicial Campaign Conduct Committee cautions judicial candidates about soliciting and accepting contributions

Friday, August 13th, 2010

 August 14, 2010

 In a Kentucky case decided July 13, 2010, the U.S. Court of Appeals for the Sixth Circuit held that judicial candidates have First Amendment rights to personally solicit campaign funds and to announce their party affiliation and receive political party endorsements. The appellate court sent the case of Carey v. Wolnitzek back to U.S. District Judge Karen Caldwell to determine the meaning of the word “issue” in the Kentucky Supreme Court rule that prohibits judicial candidates from saying how they will rule on “issues.”

 The Kentucky Judicial Campaign Conduct Committee, a non-profit, non-partisan and non-governmental body, is concerned that the ruling on contributions may undermine the integrity of judicial elections and thus damage public regard for the judiciary. While candidates have a First Amendment right to personally solicit campaign funds, they should recognize the coercion inherent in a judge personally asking lawyers who practice before the judge to give money to the judge’s election campaign.

 All judicial candidates should recognize the appearance of favoritism created by acceptance of substantial funds from a litigant or attorney with business before the court. We believe the better practice is to follow the procedure that has been in place for many years in Kentucky; that is to use a committee to raise campaign funds. We also believe that in order for voters to be fully aware of who is supporting candidates, the General Assembly should require immediate or near-immediate reporting of large contributions between the day that books close for the last pre-election campaign-finance report and the day of the election. Now, contributions during that approximate two-week period are unknown until after the election.

 The Committee also believes that judicial candidates should refrain from making statements about issues that might come before them. Judicial races are not like races for the executive or legislative branches. In those branches of government, candidates routinely promise the voters that they will, if elected, vote a certain way on issues. In judicial races, on the other hand, candidates should only promise to fairly interpret and apply the law and the U.S. and Kentucky constitutions, to treat all litigants fairly and with dignity, and to approach every case with an open mind and without pre-judgment. A judicial candidate who speaks out on issues should remind voters of these obligations, and a candidate who appears to promise how he or she will decide an issue has an obligation to let another judge handle the case if the issue arises in the judge’s court.

 Kentucky Judicial Campaign Conduct Committee Inc.

Released Aug. 12, 2010

Contact: Spencer Noe, chairman, 859-422-7509; Al Cross, secretary, 502-682-2848

Chief Justice Minton Calls for Three-pronged attack on prison costs

Friday, August 13th, 2010

By Ky. Chief Justice John D. Minton Jr.                            August 11, 2010

The core function of the state courts is the adjudication of legal disputes. And of all the legal disputes we adjudicate, our courts spend more time by far presiding over criminal cases.

Each year our judges faithfully apply the law of this state to the facts of each criminal case and sentence thousands of convicted offenders to prison for the protection of the public.

The annual cost of prison is a shocking $19,000 per prisoner and growing. And this growing investment in incarceration is not paying a return in increased public safety.

Despite a small decline in 2009, Kentucky had one of the nation’s fastest growing prison populations in the last decade. During that time, our prison population grew 45 percent as compared to 13 percent growth for state prison systems in the United States overall. Our current prison population stands at 20,200 inmates.

To pay for this increase, total state spending on corrections rose to $513 million in FY 2009. This is up 54 percent since FY 2000 and a total of 338 percent in the last two decades.

Even with this significant increase in spending, Kentucky has not seen an associated increase in public safety. The state’s recidivism rate — the number of offenders who are released from prison only to return within three years — has not improved at all.

In fact, recidivism has increased slightly from 37 percent for offenders released in 1997 to 43 percent for those released in 2006.

While the state’s crime rate has actually declined 12.4 percent since 1999, that decline trails the decrease in the national crime rate of 20.6 percent. Property crime in the state has actually begun to rise again.

Can Kentucky achieve better outcomes at a lower cost to taxpayers?

I believe we can and that’s why I am pleased to join Gov. Steve Beshear, Senate President David Williams and House Speaker Greg Stumbo in forming the Task Force on the Penal Code and Controlled Substances Act, which will be assisted by the Public Safety Performance Project of the Pew Center on the States.

Over the next several months, this task force will analyze the drivers of our inmate population growth and recommend sentencing and corrections solutions that are proven to protect public safety, hold offenders accountable and contain corrections spending.

The task force will take a data-driven approach, employing methodology that has produced good results in states as diverse as Kansas, Vermont, Texas and South Carolina.

This strategy has been successful in part because it is a bipartisan, inclusive process that engages all stakeholders and all three branches of government to construct policy options that achieve a better return on our public safety investment.

Although in its preliminary stages, our analysis has already uncovered some interesting facts about what is driving Kentucky’s prison population.

For example, an increasing percentage of offenders on parole are being sent back to prison for technical violations of the conditions of parole such as missing an appointment or failing a drug test.

Such parole violations accounted for 10.2 percent of total admissions in FY 1998, yet rose to 19.5 percent of all admissions in FY 2010. Meanwhile, admissions by parole violators who have committed a new felony offense accounted for just 2.2 percent of total admissions in FY 2010.

I am pleased to be included in this new effort. I respect the role of the legislative branch to make the ultimate policy choices about crimes and punishment and the role of the executive branch to implement those choices. The judicial branch will play a critical role in this conversation as well by bringing to the table our considerable experience working daily in Kentucky’s criminal justice system.

Aligning the three branches of government to consider new approaches is a good idea that can result in policies which protect public safety, preserve the rule of law and save taxpayer dollars.

Read more: http://www.kentucky.com/2010/08/11/1385164/three-pronged-attack-on-prison.html#ixzz0wOW0nicf

Call for Statistical Justice Index For Our Courts

Wednesday, August 11th, 2010

The following article is excerpted from the New York Times      8-11-2010

…while millions of Americans deal with their local criminal courts as defendants and victims each year, there is no comparable way to assess a judicial system and determine how well it provides basic legal services.

This lack of data has a corrosive effect: without public awareness of a court system’s strengths and weaknesses, inefficiencies and civil liberties violations are never remedied.

That’s why …America needs a “justice index” to show how the essential aspects of our local courts are working. The index, compiled according to national standards, would function roughly like college rankings, evaluating county courts on factors like cost, recidivism, crime reduction and collateral consequences, including whether people lose their jobs or homes after contact with the criminal justice system.

True, hospitals and schools serve everyone, while most Americans will never directly interact with a criminal court. But many will — an estimated 47 million Americans have criminal records, and though exact statistics don’t exist, it’s a good bet that similar numbers have passed through the courts as victims.

Of course, those numbers count only direct contact. We all benefit from better courts, which deter crime and remove public threats from the streets.

A justice index would be relatively straightforward to create. It would start by amassing data from the country’s 25 biggest counties, where the courts are most likely to collect large amounts of information.

Next, a panel of lawyers, community representatives, statisticians and law professors would establish standards for the measurements — for example, the percentage of people who plead guilty without an attorney or average bail amounts, because a high bail figure often compels defendants to plead guilty.

Another critical measurement would be the percentage of certain types of cases that get thrown out after a defined period of time, a possible indicator of inefficiency as well as disregard for traditionally under-prosecuted crimes. The index would also assess whether a county court has certain legal protections in place, like requiring that interrogations and confessions be taped.

The information would be analyzed by a nonprofit organization, then posted to a Web site in a ranked order and in terms clear enough for the public to understand. Users would be able to shuffle the rankings by focusing on data related to specific areas like civil liberties or crime reduction, in the same way college applicants can look at which schools are best for student life or athletics.

Once the data for those 25 counties has been assembled, smaller counties could gather their numbers using a detailed do-it-yourself kit from the coordinating organization.

Rankings for hospitals and public schools create healthy competition. To get the justice we deserve, we would do well to bring a similar approach to bear on our criminal courts.

Amy Bach is the author of “Ordinary Injustice: How America Holds Court.”

Lawyers: Proponents of California’s Prop 8 have no standing for appeal

Monday, August 9th, 2010

 

From NBC’s Pete Williams    Aug 9, 2010
Lawyers for the gay couples who successfully challenged California’s Proposition 8 have raised a question about whether the other side in the battle — the proponents of Prop 8 — have the legal right to appeal. If this point turns out to get traction, some experts say, it could prevent the case from getting to the US Supreme Court, or even to the court of appeals.

The issue arises as Judge Vaughan Walker considers whether or not to keep in place the temporary hold he placed on his own ruling. Though he struck the law down, he stayed the effect of his ruling for a few days while considering whether to keep that hold in place while the case is on appeal.

On Friday, both Governor Arnold Schwarzenegger and Attorney General Jerry Brown urged the judge to lift the stay and let same-sex marriages resume. Lawyers for the gay couples made the same plea, but they added an additional argument. It’s unlikely, they said, that the Prop 8 proponents can successfully carry out an appeal.

They note that the federal courts generally require that before someone can appeal a court decision, there must be some demonstration that a ruling causes that person some actual, concrete harm. For judges who take this issue, known as legal standing, seriously, it’s not enough to say “I’m an aggrieved taxpayer.”

Lawyers for the gay couples put it this way: “Ballot proposition proponents are not materially different from citizens dissatisfied with a government’s failure to enforce a generally applicable law; they lack the concrete injury particularized to themselves and not shared generally by the public necessary to invoke the jurisdiction of the federal court.”

Though some legal scholars consider this a plausible argument, one expert says the judges on the 9th Circuit who are most likely to be most sympathetic to Judge Walker’s ruling also tend to be the least restrictive on the standing issue — more inclined to let the appeal proceed.

Judge suspended for rudeness – Calls litigants “Stupid” and “Idiots” and whistles at the bench …

Friday, August 6th, 2010

 

Supreme Court imposes 5-day suspension; four justices say 90 days is warranted

By LEVI PULKKINEN  SEATTLEPI.COM STAFF

In a mixed decision, the state Supreme Court has penalized a King County District Court judge accused of extreme rudeness in her Burien courtroom.

Writing the lead opinion, Supreme Court Justice James M. Johnson noted District Court Judge Judith Eiler had received numerous complaints about her behavior in recent years. She was sanctioned in April 2009 for similar violations, but, the high court found, continued to behave badly.

Asked by the state Commission on Judicial Conduct to impose a 90-day suspension without pay, four of the court’s nine judges agreed that Eiler had violated the canons of judicial ethics but instead ordered a five-day suspension.

“Judge Eiler’s rude, discourteous, and impatient behavior was certainly unprofessional, but it did not go so far as to undermine the integrity and independence of the judiciary,” Johnson wrote in the lead opinion.

“Judge Eiler did not cut deals with litigants behind closed doors, accept bribes or otherwise demonstrate that her decisions were governed by anything other than the law and the facts of the cases,” the justice continued. “Her misconduct also did not undercut public perceptions of judicial integrity or impartiality.”

Four justices disagreed, finding that Eiler’s behavior did in fact undermine the public’s trust in the judicial system.

Writing for the four justices in dissent, Justice Gerry Alexander argued Eiler deserved the 90-day suspension.

Alexander noted that, as a district court judge, Eiler serves in the “people’s court,” hearing a large number of cases each day and often administering justice for residents with little knowledge of the system.

“While it is certainly understandable that the judges who preside over these courts may often feel stressed … that does not excuse conduct by a judge of the sort described in the lead opinion,” Alexander wrote.

Statements by a judge implying that a litigant is an “idiot” or “stupid” and the rendering of other derisive comments about persons who are before the judge is not conduct that engenders respect for the judiciary or provides confidence in the impartiality of the justice system. By the same token, Judge Eiler’s act of whistling and pounding on the bench in the manner disclosed by the electronic record is unacceptable judicial conduct.”

Casting the deciding vote, Justice Richard Sanders concurred with Johnson but argued that a reprimand would be more appropriate than a suspension. The five-day suspension, he offered, “is too harsh a sanction.”

Justices Charles W. Johnson and Tom Chambers joined in James Johnson’s ruling for the five-day suspension, as did Justice Pro Tem. Christine Quinn-Brintnall. Sanders stood alone in concurrence.

In arguing for a 90-day suspension, Alexander was joined by Justices Mary Fairhurst and Debra Stephens, as well as Chief Justice Barbara Madsen.

State sovereign immunity defense may be voided if it conflicts with Federal Law.

Monday, August 2nd, 2010

State sovereign immunity defense may be voided if it conflicts with Federal Law.

The following cases suggest that if a claim is valid under Section 1983 of the Federal Civil Rights Act, that state law granting immunity to the official cannot override Federal law under the Supremacy Clause.

Jefferson County Fiscal Court v. Peerce, 132 S.W.3d 824 (Ky., 2004)

“..it is clear that “`[c]onduct by persons acting under color of state law which is wrongful under 42 USC § 1983 … cannot be immunized by state law.’

Third Cause of Action

        In discharging the Plaintiff from his employment, the Defendants Jefferson County Corrections Department, Jefferson County Fiscal Court, and Jefferson County Judge-Executive David L. Armstrong, acting in his official capacity and individually, acted under color of state law and maliciously subjected the Plaintiff to the deprivation of his rights and privileges under the Constitution of the United States causing the Plaintiff to suffer damages in excess of the jurisdictional requisite of this Court.

the trial court properly granted summary judgment in Armstrong’s favor as to Appellee’s second cause of action.

        Yanero holds that an official sued in his or her individual capacity “enjoy[s] only qualified official immunity, which affords protection from damages liability for good faith judgment calls made in a legally uncertain environment.”15 Armstrong’s decision to terminate Appellee was clearly a discretionary act, “i.e., [one] involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment[.]“16 And, although Appellee argues that Peerce I, which held that “Armstrong clearly overstepped his authority by unilaterally deciding not to follow the Board’s decision,” demonstrates that Armstrong acted in bad faith, we observed in Yanero that “in the context of qualified official immunity, `bad faith’ can be predicated on a violation of a constitutional, statutory, or

[132 S.W.3d 834]

other clearly established right which a person in the [officer's] position presumptively would have known was afforded to a person in the plaintiff’s position, i.e., objective unreasonableness[.]“17

The factual context of this case exemplifies the “legally uncertain environment” in which qualified official immunity is appropriate.

C. CLAIMS THREE, SEVEN & EIGHT—IMMUNITY UNDER § 1983

        Claim Three in Appellee’s Second Amended Petition and Claims Seven and Eight in Appellee’s Third Amended Petition each assert federal civil rights claims under 42 U.S.C. § 1983,18 which provides:

        Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ….19

        § 1983 claims may be brought in either federal or state court.20

        The trial court entered judgment in favor of claims Three, Seven, and Eight on the grounds that each of the defendants enjoyed either sovereign or qualified immunity. Appellants urge that this was an appropriate disposition of these claims. Accordingly, we shall address each immunity claim in turn.

[132 S.W.3d 835]

1. SOVEREIGN IMMUNITY

        Under § 1983, any “person” who violates the federally protected rights of another may be enjoined and/or held liable for damages.21 It is well-established, however, that § 1983 does not override the traditional sovereign immunity of a state and arms of the state as guaranteed by the Eleventh Amendment.22 Thus, a governmental entity that enjoys Eleventh Amendment immunity is not a “person” subject to suit under § 1983.23

        Appellants argue that the trial court correctly held that the Fiscal Court and JCCD were protected from Appellee’s § 1983 claims by their immunity under state law. In their view, Clevinger v. Board of Education of Pike County24 accurately states the law on this issue in Kentucky. In Clevinger, the Teamsters filed a class action against the Pike County Board of Education, claiming that the Board’s failure to make requested payroll deductions of union dues violated both state law and § 1983. The trial court dismissed the § 1983 claim. The Court of Appeals reversed. This Court granted discretionary review, reversed the Court of Appeals and reinstated the trial court’s ruling because we held the school board was a state agency shielded by state sovereign immunity and that the state sovereign immunity doctrine protected against § 1983 claims. In reaching that conclusion, we considered the status of county agencies under Kentucky law. “At least since 1941 this Court has recognized that a County Board of Education is an arm of state government, and as such enjoys state sovereign immunity against liability and tort.”25 We relied on Will v. Michigan Dept. of State Police26 and Board of Trustees v. Hayse27 as our basis for concluding that sovereign immunity immunized the board of education from suit under § 1983:

        Thus, because in this Commonwealth a School Board is protected by state sovereign immunity from a suit for money damages for an injury wrongfully inflicted, whether the cause of action is common law or statutory, and because the United States Supreme Court has decided that where such is the case the state sovereign immunity defense will prevail against a 42 USC § 1983 claim, we reverse the decision of the Court of Appeals and affirm the decision of the trial court dismissing the claim for money damages in this case.28

        In Howlett v. Rose,29 however, the United States Supreme Court held that state

[132 S.W.3d 836]

sovereign immunity did not bar a § 1983 claim against a county school board. Howlett was a former high school student whose car was searched while parked on campus and who was suspended from school for five days. He brought § 1983 claims against the county school board and some of its officials in which he alleged that the search and subsequent suspension were illegal and in violation of his Fourth and Fourteenth Amendment rights. The trial court dismissed the action, claiming that it was barred because Florida had not waived its sovereign immunity with regard to § 1983 claims. The Florida Court of Appeals affirmed the dismissal, and the Florida Supreme Court denied review. The United States Supreme Court granted certiorari and defined its task as deciding “whether a state-law defense of `sovereign immunity’ is available to a school board otherwise subject to suit in a Florida court even though such a defense would not be available if the action had been brought in a federal forum.”30 In completing this task, the Court recognized Will as establishing that “the State and arms of the State, which have traditionally enjoyed Eleventh Amendment immunity are not subject to suit under § 1983 in either federal court or state court.”31 The Court observed that, by granting immunity to the school board, the Florida courts had “extended absolute immunity from suit not only to the State and its arms but also to municipalities, counties, and school districts that might otherwise be subject to suit under § 1983 in federal court.”32 The Court held that this action violated the Supremacy Clause of the United States Constitution because “[t]he elements of, and the defenses to, a federal cause of action are defined by federal law.”33 Further, the Court noted that “[f]ederal law makes governmental defendants that are not arms of the State, such as municipalities, liable for their constitutional violations.”34 Finally, the Court held, “[t]o the extent that the Florida law of sovereign immunity reflects a substantive disagreement with the extent to which governmental entities should be held liable for their constitutional violations, that disagreement cannot override the dictates of federal law.”35

        Appellants urge us to conclude that Howlett is not applicable to this case because Howlett involved a Florida school board that was not protected by sovereign immunity under Florida law whereas Kentucky counties enjoy immunity under Kentucky law.36 We are not convinced by this argument. Howlett states clearly that state treatment of sovereign immunity is not relevant to a determination of whether a party is immune from § 1983 liability because only federal jurisprudence is controlling on this issue.

        Accordingly, it is clear that “`[c]onduct by persons acting under color of state law which is wrongful under 42 USC § 1983 … cannot be immunized by state law.’”37 And the relevant inquiry in this case, therefore is whether the Fiscal

[132 S.W.3d 837]

Court38 is an arm of the state, in which case it would be protected by Eleventh amendment immunity and would not constitute a “person” subject to suit under § 1983. The United States Supreme Court, “has consistently refused to construe the [Eleventh] Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a `slice of state power.’”39 Thus, under federal law, counties are not arms of the state. Accordingly, none of the Appellants are protected from liability under § 1983 by the Eleventh Amendment

2. QUALIFIED IMMUNITY

        Although none of the Appellants could assert sovereign immunity as a bar to Appellee’s § 1983 claims, the Appellants sued in their individual capacities—Armstrong, Bishop, and Karsner—could (and did) assert the defense of qualified immunity. United States Supreme Court precedent in § 1983 cases provides a complete defense for a government official performing discretionary functions so long as his or her actions were reasonably consistent with the rights allegedly violated. Conversely, if the official’s actions violated a clearly established right or law, the immunity is lost and the official is liable for the violation. The test is one of “objective legal reasonableness”:

        The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, … but it is to say that in the light of pre-existing law the unlawfulness must be apparent.40

        When a claim of qualified immunity is asserted on the grounds that the alleged constitutional right violated was not firmly established, the applicability of the qualified defense is a question of law to be decided prior to discovery.41

        As the qualified immunity inquiry is essentially identical to the qualified official immunity inquiry under state law, and we held in Part III(C) that Armstrong’s actions took place in a legally uncertain environment, we hold that the trial court properly granted summary judgment as to Appellee’s third cause of action against Armstrong in his individual capacity. Appellants also argue that Armstrong, Bishop, and Karsner enjoy qualified immunity as to the claims made against them individually in Appellee’s Seventh and Eighth causes of action. However, we would characterize both parties’ arguments regarding qualified immunity as to claims Seven and Eight as convoluted, and it appears that much of the

[132 S.W.3d 838]

confusion results from the fact that claims Seven and Eight do not clearly identify how Appellants’ actions violated a specific right under the federal constitution. The United States Supreme Court has observed that, under such circumstances, “the court may insist that the plaintiff `put forward specific nonconclusory factual allegations’ … in order to survive a prediscovery motion for dismissal or summary judgment.”42 Because we find it impossible to determine from the pleadings whether Appellants Armstrong, Bishop, and Karsner are entitled to qualified immunity, we remand claims Seven and Eight for the trial court to make that determination after requiring Appellee to plead his constitutional claims with particularity.

III. CONCLUSION

        For the above reasons, we affirm the Court of Appeals’s holding as to the claims against the Fiscal Court in Appellee’s Third cause of action and against JCCD in Appellee’s Third, Seventh, and Eighth causes of action. We reverse the Court of Appeals’s holding, and reinstate the trial court’s summary judgment, as to the entirety of Appellee’s Second cause of action and as to the claim made against Armstrong in his individual capacity in Appellee’s Third cause of action. Finally, we remand claims Seven and Eight to the trial court for further proceedings consistent with this opinion in connection with Appellants Armstrong, Bishop, and Karsner’s assertions of qualified immunity.

        COOPER, GRAVES and STUMBO, JJ., concur.

 

Howlett Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990)

“Conduct by persons acting under color of state law which is wrongful under § 1983 cannot be immunized by state law even though the federal cause of action is being asserted in state court.”

  State as well as federal courts have jurisdiction over suits brought pursuant to 42 U.S.C. § 1983, which creates a remedy for violations of federal rights committed by persons acting under color of state law. Petitioner, a former high school student, filed a § 1983 suit in a Florida Circuit Court seeking damages and injunctive relief against, inter alios, the local school board, alleging, among other things, that his federal constitutional rights were violated when his car was searched on school premises in violation of the Fourth and Fourteenth Amendments of the Federal Constitution and that he was suspended from classes without due process. The court held that it lacked jurisdiction over the board and dismissed the complaint against the board with prejudice, citing Hill v. Department of Corrections, 513 So.2d 129, in which the State Supreme Court ruled that Florida’s statutory waiver of sovereign immunity applied only to state-court tort actions and conferred a blanket immunity on state governmental entities from federal civil rights actions under § 1983 in state court. The District Court of Appeal affirmed the dismissal, holding that the availability of sovereign immunity in a § 1983 action brought in state court is a matter of state law, and that, under Hill, the statutory waiver of immunity did not apply.

          Held: A state-law “sovereign immunity” defense is not available to a school board in a § 1983 action brought in a state court that otherwise has jurisdiction when such defense would not be available if the action were brought in a federal forum. Pp. 361-383.

          (a) Since the defendant in Hill was a state agency protected from suit in federal court by the Eleventh Amendment, see Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358, and thus was not a “person” within the meaning of § 1983, see Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45, Hill § actual disposition, if not its language and reasoning, comports with Will, which established that the State and arms of the State, which have traditionally enjoyed Eleventh Amendment immunity, are not subject to suit under § 1983 in either federal or state court.

However, in construing Hill to extend absolute immunity not only to the State and its arms but also to

Page 357

municipalities, counties, and school districts which might otherwise be subject to suit under § 1983 in federal court, the District Court of Appeal’s decision raises the concern that that court may be evading federal law and discriminating against federal causes of action. The adequacy of the state-law ground to support a judgment precluding litigation of the federal claim is a federal question, which this Court reviews de novo. See, e.g., James v. Kentucky, 466 U.S. 341, 348-349, 104 S.Ct. 1830, 1835-1836, 80 L.Ed.2d 346. Pp. 361-366.

          (b) Under the Supremacy Clause, state courts have a concurrent duty to enforce federal law according to their regular modes of procedure. See, e.g., Claflin v. Houseman, 93 U.S. 130, 136-137, 23 L.Ed. 833. Such a court may not deny a federal right, when the parties and controversy are properly before it, in the absence of a “valid excuse.” Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377, 387-389, 49 S.Ct. 355, 356-357, 73 L.Ed. 747. An excuse that is inconsistent with or violates federal law is not a valid excuse: The Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source. See, e.g., Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1, 57, 32 S.Ct. 169, 178, 56 L.Ed. 327. A valid excuse may exist when a state court refuses jurisdiction because of a neutral state rule of judicial administration, see, e.g., Douglas, supra, unless that rule is pre-empted by federal law, see Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123. Pp. 367-375.

          (c) The District Court of Appeal’s refusal to entertain § 1983 actions against state entities such as school boards violates the Supremacy Clause. If that refusal amounts to the adoption of a substantive rule of decision that state agencies are not subject to liability under § 1983, it directly violates federal law, which makes governmental defendants that are not arms of the State liable for their constitutional violations under § 1983. See, e.g., St. Louis v. Praprotnik, 485 U.S. 112, 121-122, 108 S.Ct. 915, 922-23, 99 L.Ed.2d 107. Conduct by persons acting under color of state law which is wrongful under § 1983 cannot be immunized by state law even though the federal cause of action is being asserted in state court. See, e.g., Martinez v. California, 444 U.S. 277, 284, and n. 8, 100 S.Ct. 553, 558, and n. 8, 62 L.Ed.2d 481. If, on the other hand, the District Court of Appeal’s decision meant that § 1983 claims are excluded from the category of tort claims that the Circuit Court could hear against a school board, it was no less violative of federal law. Cf. Atlantic Coast Line R. Co. v. Burnette, 239 U.S. 199, 201, 36 S.Ct. 75, 76, 60 L.Ed. 226. The State has constituted the Circuit Court as a court of general jurisdiction, and it entertains state common-law and statutory claims against state entities in a variety of their capacities, as well as § 1983 actions against individual state officials. A state policy that declines jurisdiction over one discrete category of § 1983 claims, yet permits similar state-law actions against state defendants, can be based only on the rationale that such defendants should not be held liable for § 1983 violations. Thus, there is no neutral or valid excuse for the refusal to hear suits like petitioner’s. Pp. 375-381.

Page 358

          (d) There is no merit to respondent’s argument that a federal court has no power to compel a state court to entertain a claim over which it lacks jurisdiction under state law. The fact that a rule is denominated jurisdictional does not provide a state court an excuse to avoid the obligation to enforce federal law if the rule does not reflect the concerns of power over the person and competence over the subject matter that jurisdictional rules are designed to protect. Also meritless is respondent’s contention that sovereign immunity is not a creature of state law, but of long-established legal principles that Congress did not intend to abrogate in enacting § 1983. Congress did take common-law principles into account in, e.g., excluding States and arms of the State from the definition of “person,” but individual States may not rely on their own common-law heritage to exempt from federal liability persons that Congress subjected to liability. Pp. 381-383.

          537 So.2d 706 (App.2d Dist.1989), reversed and remanded.

          STEVENS, J., delivered the opinion for a unanimous Court.

 

Hospital Stroke Scans Causing Radiation Overdoses – Patients Face Serious Health Risks

Sunday, August 1st, 2010

NY TIMES   July 31, 2010

Hospital Stroke Scans Causing Radiation Overdoses – Patients Face Serious Health Risks

By WALT BOGDANICH

When Alain Reyes’s hair suddenly fell out in a freakish band circling his head, he was not the only one worried about his health. His co-workers at a shipping company avoided him, and his boss sent him home, fearing he had a contagious disease.

Only later would Mr. Reyes learn what had caused him so much physical and emotional grief: he had received a radiation overdose during a test for a stroke at a hospital in Glendale, Calif.

Other patients getting the procedure, called a CT brain perfusion scan, were being overdosed, too — 37 of them just up the freeway at Providence Saint Joseph Medical Center in Burbank, 269 more at the renowned Cedars-Sinai Medical Center in Los Angeles and dozens more at a hospital in Huntsville, Ala.

The overdoses, which began to emerge late last summer, set off an investigation by the Food and Drug Administration into why patients tested with this complex yet lightly regulated technology were bombarded with excessive radiation. After 10 months, the agency has yet to provide a final report on what it found.

But an examination by The New York Times has found that radiation overdoses were larger and more widespread than previously known, that patients have reported symptoms considerably more serious than losing their hair, and that experts say they may face long-term risks of cancer and brain damage.

The review also offers insight into the way many of the overdoses occurred. While in some cases technicians did not know how to properly administer the test, interviews with hospital officials and a review of public records raise new questions about the role of manufacturers, including how well they design their software and equipment and train those who use them.

The Times found the biggest overdoses at Huntsville Hospital — up to 13 times the amount of radiation generally used in the test.

Officials there said they intentionally used high levels of radiation to get clearer images, according to an inquiry by the company that supplied the scanners, GE Healthcare.

Experts say that is unjustified and potentially dangerous.

“It is absolutely shocking and mind-boggling that this facility would say the doses are acceptable,” said Dr. Rebecca Smith-Bindman, a radiology professor who has testified before Congress about the need for more controls over CT scans. Yet because the hospital said no mistakes were made, regulatory agencies did not investigate.

The F.D.A. was unaware of the magnitude of those overdoses until The Times brought them to the agency’s attention. Now, the agency is considering extending its investigation, according to Dr. Alberto Gutierrez, an F.D.A. official who oversees diagnostic devices.

Patients who received overdoses in Huntsville say that in addition to hair loss, they experienced headaches, memory loss and confusion. But at such high doses, experts say, patients are also at higher risk of brain damage and cancer.

A spokesman for Huntsville Hospital, which now acknowledges that some patients received “elevated” radiation, said officials there would not comment.

Growing Number of Cases

So far, the number of patients nationwide who got higher-than-expected radiation doses exceeds 400 at eight hospitals, six in California alone, according to figures supplied by hospitals, regulators and lawyers representing overdosed patients. A health official in California who played a leading role in uncovering the cases predicts that many more will be found as states intensify their search.

“I cannot believe that this is not occurring in the rest of the country,” said Kathleen Kaufman, head of radiation management for the Los Angeles County Department of Public Health. “That’s why we are so keen on the rest of the states to go look at this.”

The Food and Drug Administration acknowledges, too, that the number does not capture all the overdoses.

The cases come at a time when Americans are receiving more medical radiation than ever before, a result of rapid technological advancements that improve diagnosis but can also do harm when safeguards and oversight fail to keep pace.

Even when done properly, CT brain perfusion scans deliver a large dose of radiation — the equivalent of about 200 X-rays of the skull. But there are no hard standards for how much radiation is too much. The overdoses highlight how little some in the medical profession understand about the operation of these scanning devices and the nature of radiation injuries, as well as the loose requirements for reporting accidents when they are detected.

For a year or more, doctors and hospitals failed to detect the overdoses even though patients continued to report distinctive patterns of hair loss that matched where they had been radiated. After the Food and Drug Administration issued a nationwide alert asking hospitals to check their radiation output on these tests, a few hospitals continued to overdose patients for weeks and in some cases months afterward, according to records and interviews.

Four of the hospitals involved were identified in recent months: the Los Angeles County and University of Southern California Medical Center, where one patient received seven and a half times the amount generally used; Bakersfield Memorial Hospital, where 16 people received up to five and a half times too much; South Lake Hospital in central Florida, where an unknown number of patients received 40 percent more than usual; and an unidentified hospital in San Francisco, government officials said.

None of the overdoses can be attributed to malfunctions of the CT scanners, government officials say.

At Glendale Adventist Medical Center, where Mr. Reyes and nine others were overdosed, employees told state investigators that they consulted with GE last year when instituting a new procedure to get quicker images of blood flow, state records show. But employees still made mistakes.

As a result, hospital officials said, a feature that technicians thought would lower radiation levels actually raised them. Cedars-Sinai gave a similar explanation.

“There was a lot of trust in the manufacturers and trust in the technology that this type of equipment in this day and age would not allow you to get more radiation than was absolutely necessary,” said Robert Marchuck, the Glendale hospital’s vice president of ancillary services.

A GE spokesman, Arvind Gopalratnam, said the way scanners were programmed was “determined by the user and not the manufacturer.” GE, he added, has no record of Glendale seeking its help setting up the new procedure in 2009.

Most of the known overdoses, including the biggest, occurred on scanners made by GE Healthcare. At two hospitals that use Toshiba scanners — Los Angeles County-U.S.C. and South Lake in Florida — officials said the manufacturer suggested machine settings that ultimately produced too much radiation. Representatives of Toshiba agreed to be interviewed in their California office but abruptly canceled.

A dozen overdose victims in California and Alabama said in interviews that the long delay in uncovering the flawed tests had left them struggling to understand what was happening to their health. One patient suspected that the Rogaine he used to stop hair loss was actually causing it. Another patient received steroid injections to stop the hair loss.

Patients said doctors speculated that their temporary hair loss might stem from a variety of causes — stress or a ponytail tied too tight — and that redness and rashes were caused by detergent used to wash bed sheets.

“What is amazing and seems painfully obvious is if someone walks in with a band of hair missing around the entire circumference of their head, you would ask the question: Have you had a CT scan?” said Richard A. Patterson, a Los Angeles lawyer who represents some of the patients. “Not ‘What did you eat for breakfast yesterday that would cause your hair to fall out today?’ ”

The overdoses did not discriminate. Among the victims: a member of Cedars-Sinai’s own board of governors, Ruthe Feldman. Mrs. Feldman says she left the board after learning about the mistake.

The Food and Drug Administration, in trying to assess the scope and cause of the overdoses, has had to rely on state radiation control officials for information. But if Alabama is any indication, the agency is not getting a full picture.

A Huntsville Hospital spokesman, Burr Ingram, said that about 65 possible stroke patients there had been overradiated. Lawyers representing patients say the number of overdoses is closer to 100.

Nonetheless, Alabama officials say the number is actually zero since the state does not define an acceptable dosing level. “No such thing as an overdose,” said James L. McNees, director of the Alabama Office of Radiation Control.

A Hospital’s Low Moment

One day last August, the radiation safety officer at Cedars-Sinai, Donna Early, decided she had to act.

It was a low moment for such an esteemed institution. Patients were being overradiated during CT brain perfusion scans, hospital officials concluded, and it was Ms. Early’s job to tell county health officials.

The genesis of Ms. Early’s alert was an event on the morning of July 4, when a 52-year-old executive producer of films, H. Michael Heuser, arrived in the emergency department with stroke symptoms.

A “code brain” was immediately called, signaling a life-or-death situation. A blood clot in the brain can be dissolved with medicine, but doctors must do it within several hours, before brain cells die from a lack of oxygen. So Mr. Heuser was rushed into a room with several CT scanners, where he underwent one brain perfusion study and at least one more later. A CT perfusion scan, which lasts about 45 seconds, can identify a stroke through a series of blood flow images.

Mr. Heuser did have a stroke, from which he would recover. But other parts of his body inexplicably began to break down.

“I had a full body rash — my whole body, legs, armpits, bottom, my back — with these red welts,” Mr. Heuser said.

It burned and itched. Then clumps of hair began to fall out. “I went completely bald in a perfectly symmetrical 4-inch-wide band that extended from ear to ear all the way around my head,” he recalled. The hospital, he said, responded by offering him a hairpiece.

Finally, a doctor was so struck by the unusual nature of Mr. Heuser’s hair loss that he took a picture. A second patient reported similar hair loss. Eventually, the hospital made the connection, and on Aug. 28, Ms. Early called county health officials, records show. From then on, as the accounting of overdoses at Cedars-Sinai reached 269 over a period of 18 months, Mr. Heuser would be known in government reports simply as “Patient 1.”

To this day, no one at Cedars-Sinai knows who programmed the scanners that delivered the overdoses, officials there say. But in written statements to The Times, hospital officials said they had figured out how they might have occurred.

Normally, the more radiation a CT scan uses, the better the image. But amid concerns that patients are getting more radiation than necessary, the medical community has embraced the idea of using only enough to obtain an image sufficient for diagnosis.

To do that, GE offers a feature on its CT scanner that can automatically adjust the dose according to a patient’s size and body part. It is, a GE manual says, “a technical innovation that significantly reduces radiation dose.”

At Cedars-Sinai and Glendale Adventist, technicians used the automatic feature — rather than a fixed, predetermined radiation level — for their brain perfusion scans.

But a surprise awaited them: when used with certain machine settings that govern image clarity, the automatic feature did not reduce the dose — it raised it.

As a result, patients at Cedars-Sinai received up to eight times as much radiation as necessary, while the 10 overradiated at Glendale received four times as much, state records show.

GE says the hospitals should have known how to safely use the automatic feature. Besides, GE said, the feature had “limited utility” for a perfusion scan because the test targets one specific area of the brain, rather than body parts of varying thickness. In addition, experts say high-clarity images are not needed to track blood flow in the brain.

GE further faulted hospital technologists for failing to notice dosing levels on their treatment screens.

But representatives of both hospitals said GE trainers never fully explained the automatic feature.

In a statement, Cedars-Sinai said that during multiple training visits, GE never mentioned the “counterintuitive” nature of a feature that promises to lower radiation but ends up raising it. The hospital also said user manuals never pointed out that the automatic feature was of limited value for perfusion scans.

A better-designed CT scanner, safety experts say, might have prevented the overdoses by alerting operators, or simply shutting down, when doses reached dangerous levels.

To Mr. Heuser, it is unconscionable that equipment able to deliver such high radiation doses lacks stronger safety features.

“When you are in a car and it backs up, it goes beep, beep, beep,” he said. “If you fill the washing machine up too much, it won’t work. There is no red light that says you are overradiating.”

Manufacturers say they will address some of these issues in newer models.

Form Letter, No Apology

Huntsville Hospital informed patients that they had been overdosed in a two-page form letter that included no apology. The word radiation was mentioned once — in the ninth sentence.

“We have identified a few patients, including you, who received a scan in which the dosage level was elevated,” stated the letter, dated Dec. 11, 2009.

The acknowledgment by hospital officials that 65 people were overradiated has come slowly.

After the California overdoses became public, Huntsville officials reviewed their testing and determined that their use of higher doses to get clearer images was not a mistake and was, in fact, appropriate, according to the GE inspection report. Therefore, they concluded, they had no overdoses.

State and federal officials said they did not investigate Huntsville, because there were no equipment malfunctions or because the dosing decisions were considered part of the practice of medicine. As a result, the only public accounting of the number of overdoses in Huntsville has come from the hospital, not government inspectors.

By contrast, California officials conducted investigations, released inspection reports and have cited at least four hospitals for failing to safely irradiate patients.

Because Huntsville Hospital officials declined to be interviewed, it is unclear how they determined who had been overradiated, when the overdoses started or why patients with sudden hair loss did not arouse more suspicion.

Melissa Faye Adams is one of a number of patients who have yet to be told they were overdosed, even though they have pictures of themselves with the distinctive band of hair loss. More than two years ago, just shy of her 40th birthday, she underwent a stroke test at Huntsville Hospital after developing a headache. Fifteen days later, her hair began falling out and her life began to lurch about in disquieting ways. She still keeps a plastic bag full of her hair marked with that date, 6/15/08. “I panicked,” she said.

It would take another year and a half of worry, of unsatisfying doctor visits, before her hairdresser called one day last December telling her to pick up a copy of the local paper. In the paper, the hairdresser said, was “a picture of a lady who looks just like you.” The woman said she had been overradiated at Huntsville Hospital.

Dr. Lon Raby, a Huntsville dermatologist, also noticed the picture. “I recognized the pattern with it,” Dr. Raby said. “I’ve seen six or eight all in the same time frame.”

Suzanne Sloan, a popular fifth-grade teacher, was one of his patients. She saw the picture, too. “We were screaming,” Ms. Sloan said. “She had the same identical thing.”

Ms. Sloan’s fruitless search for an explanation had taken her to the University of Alabama at Birmingham Hospital, Ochsner Health System in Louisiana and Vanderbilt University in Tennessee. “They had no clue,” she said. “I lost 15 pounds. I couldn’t sleep.”

Ms. Sloan had tried to cover her missing hair using bobby pins. But one day at school, a gust of wind blew and children saw her strip of missing hair. One got sick and vomited, she said. As word of her condition spread, former students flocked to her classroom, some crying. “We heard you were dying,” one said. “Is there something we can do?”

Another patient, an aerospace engineer who says she had a seizure after her scan, said her dermatologist wrote to Huntsville Hospital out of concern for her and another patient with similar symptoms.

“Even after the dermatologist put two and two together and asked Huntsville Hospital to contact me, they never did,” said the engineer, who provided a picture of her hair loss but asked that her name be withheld because of professional reasons.

She said she suffered from memory loss and confusion.

Huntsville Hospital officials said they did not routinely record radiation dose levels before 2009. Mr. Ingram, the spokesman, said the hospital did keep information needed to calculate the dose, but he declined to say whether officials had gone back to determine doses for all patients who had brain perfusion scans.

The form letter Huntsville sent to overdose patients appears to play down the damage that high doses can inflict. The hospital told patients that hair loss and skin redness might occur but would go away. “At this time, we have no recommendations for you to have any follow-up treatment,” the letter said.

Health experts elsewhere have warned of possible eye damage, in addition to the higher risk of cancer and brain damage.

For Dr. Smith-Bindman, a professor at the University of California, San Francisco, the larger question raised by her review of overdose cases, including one in Huntsville, is whether their symptoms actually required such a powerful test in the first place. She also noted that many of the patients were relatively young.

“These tests have really high doses,” she said. “And there’s no system for figuring out who is getting them and why they are getting them.”

Reducing mistakes is important, but the bigger challenge, she said, is to eliminate unnecessary testing.

“Utilization has increased dramatically, and as a society we have not had the time to respond.”

Kristina Rebelo contributed reporting.