Sargent v. Shaffer

¶1CONCURRING IN RESULT ONLY:

¶2I respectfully concur in result only.

¶3This is a case of first impression. Although KRS 304.40-320 was adopted in March 1976 and became effective in July of that year, this Court has never had occasion to address what effect, if any, the statute has on jury instructions. Nevertheless, this Court’s occasional treatment of the informed consent statute in other contexts has given rise to considerable confusion over the years as to the statute’s import, and has resulted in the current reality where .the leading treatise, 2 Pal-more & Cetrulo, Kentucky Instructions to Juries, Civil, provides an instruction essentially identical to the one the trial judge gave in this case, an instruction now deemed wrong. While today’s Opinion may not come as a total surprise to the bench and bar, in the sense of being entirely unexpected, it does represent a break with current litigation practice, and under those circumstances I find it important to explain my analysis.

¶4This Court has cited KRS 304.40-320 seven times in the last forty years, beginning with Keel v. St. Elizabeth Medical Ctr., 842 S.W.2d 860 (1992), the case which most likely led to the confusion in this area. While Keeldeserves a close look, initially it is only necessary to note that it was not a jury verdict case but rather an appeal from a summary judgment in favor of a hospital. The trial court and Court of Appeals held, properly in my view, that an informed consent claim could not proceed to the jury in the absence of expert testimony regarding the standard of practice within the medical profession. As discussed more fully below, this Court reversed in a plurality opinion and sent the case back to the trial court for further proceedings, citing the statute but ignoring its import.

¶5The next encounter with the statute was a glancing one in a footnote by Justice Leibson writing in dissent in Lewis v. Kenady, 894 S.W.2d 619 (1994). That case was an appeal from a jury verdict but the question presented was whether the trial *214court erred in not allowing the defendant-physicians to withdraw admissions made when they failed to respond to some requests for admissions that went to the heart of the informed consent claim. The majority never mentioned the statute and the dissent simply observed: “Nothing in KRS 304.40-320, which attempts to codify the common law as to when informed consent has been given and obtained, remotely suggests a different result.” 894 S.W.2d at 623 n. 1. In context, the dissent was simply saying that the statute did not change the common law requirement that a physician cannot perform a surgery without informed consent.

¶6Three years later, in Kovacs v. Freeman, 957 S.W.2d 251, 253 (Ky. 1997), the statute was cited again. The majority identified the issue in that case as “the extent of authority granted by a hospital consent form to a surgeon who was not listed on the form.” After much discussion of whether an informed consent form could be a contract between the physician and patient, the unanimous court concluded that informed consent “is a process, not a document.” Id. at 254. As for the statute, the Court stated: “There is no. statutory or regulatory requirement in Kentucky that a consent to surgery be in written form. The Kentucky statute dealing with legal requirements for valid informed consent to medical treatment, KRS 304.40-320, makes no reference to a written consent document. Instead, evidence of a valid consent, per Kentucky law, lies in the verbal discussion between physician and patient.” Id. at 255. The Court then quoted the statute, highlighting language such as “action of the health care provider in obtaining the consent of the patient,” which supported its position that a written document was unnecessary.

¶7Next, in Vitale v. Henchey, 24 S.W.3d 651 (Ky. 2000), the Court addressed a case in which the surgeon who operated on an elderly patient was not the surgeon to whom the patient’s son, acting under a medical power of attorney, had given consent. There was apparently no breach of the standard of care in the performance of the surgery but there was the issue of the “wrong” • surgeon. This Court noted that Holton v. Pfingst, 534 S.W.2d 786 (Ky. 1975) and the, later-enacted informed consent statute addressed negligence claims where “the risks and hazards” involved in a proposed treatment or procedure were allegedly not disclosed to the patient. 24 S.W.3d at 655. To that point, the statute was quoted in its entirety with emphasis on the “substantial risks and hazards” language in KRS 304.40-320(2). The Vitalemajority concluded that where there was no consent for a particular surgeon to perform a procedure the action was not a negligence claim but rather one for the intentional tort of battery. Id. at 656.

¶8In Larkin v. Pfizer, 153 S.W.3d 758, 769 (Ky. 2004), while answering a certified question from the United States Court of Appeals for the Sixth Circuit, this Court observed: “[t]he learned intermediary rule is consistent with our informed consent statute, KRS 30*4.40-320, which anticipates that doctors will inform their patients of any risks or dangers inherent in proposed treatment.” The Larkinopinion then quotes a portion of the statute, which, of course, does not literally say “any” risks but rather “substantial risks and hazards ....” 153 S.W.3d at 769-70.

¶9Finally and most recently,14 in Fraser v. Miller, 427 S.W.3d 182 (Ky. 2014), this *215Court held that a plaintiff had not properly preserved the trial court’s alleged error in disallowing presentation of an informed consent claim to the jury. The majority noted that the physician had unsuccessfully moved for summary judgment pre-trial on the grounds that prescribing a therapeutic drug did not fall within the purview of KRS 304.40-320 but, later at trial, had successfully obtained a directed verdict on that same ground and also due to a failure of proof, ie., failure to offer expert testimony that the physician deviated from the standard of care. 427 S.W.3d at 185. We held that the plaintiffs counsel waived appellate review by not responding to the directed verdict, not objecting to the failure to give an informed consent instruction, and otherwise failing to preserve the issue. Concurring in result only, two justices found the issue preserved but concluded there was no error because the absence of expert testimony was fatal to the plaintiffs case under the informed consent statute. They noted that Keel’s holding to the contrary (that an informed consent case can survive without expert testimony) has been criticized by federal courts and read very narrowly by our own Court of Appeals. Id. at 188.

¶10This criticism of Keelbrings one full circle to the source of the confusion. In that case, a plaintiff developed thrombo-phlebitis at the site of the injection he received prior to a CT scan. The hospital gave him no information concerning risks associated with a CT scan although it did ask if he had had previous scans. The trial court dismissed his informed consent claim due to a lack of expert testimony regarding the professional standard, and the Court of Appeals affirmed. 842 S.W.2d at 860. Three justices subscribed to an opinion that first discussed Holton v. Pfingst, supra,a 1975 case that approved a directed verdict on informed consent “for want of expert testimony,” and then addressed KRS 304.40-320, which also required expert testimony regarding “the accepted standard of medical ... practice.” 842 S.W.2d at 861. Although the statute plainly required the testimony (Holton v. Pfingst had dodged the issue) those justices concluded that expert testimony was not required in all instances including Keel’s ease where no information was given prior to the procedure. They cited common law negligence cases where “the failure is so apparent that laymen may easily recognize it or infer it from evidence within the realm of common knowledge.” Id. at 862. So while the three justices acknowledged the statute, they also ignored its plain language. Concurring in result only, Justice Leibson was unrestrained in his criticism of what he perceived to be an unconstitutional statute:

KRS 304.40-320 should have no bearing whatever on this case because it is a plainly unconstitutional legislative intrusion into liability for common law wrongs (negligence and assault and battery) protected from such intrusion by our Kentucky Constitution, Secs. 14, 54 and 241. Constitutionally, the statute cannot define the duty,'

Our Opinion should not give aid and comfort to an unconstitutional statute by deigning to discuss its application.

¶11Id. at 863. Notably, the three dissenters roundly rejected the idea that an informed consent case could be presented to a jury without expert testimony. “KRS 304.40-320 in effect states the two elements for a prima facie informed consent case.” Id. at 865. As they understood the law,

In sum, KRS 304.40-320 mandates that the plaintiff satisfy two requirements in an informed consent case. First, the plaintiff must prove that the disclosure made by the health care provider did not satisfy the accepted stan*216dard of the members of that profession with similar training and experience. Second, plaintiff must prove that a reasonable individual would not understand the procedures, acceptable alternatives, and the substantial risks inherent in the proposed treatment from the health care provider’s disclosures.

¶12Id.The lengthy dissent discussed the passage of the statute; its drafter, the Governor’s Hospital and Physicians Professional Liability Insurance Advisory Committee (“Committee”); and the commentary on the informed consent provision in a 1975 Committee report to the Governor. In essence the dissenters said, “the legislature has spoken and this is what an informed consent claim is.”

¶13Confusion in the post-Keel years is fully understandable. If the statute set the pri-ma facie elements of the claim as the dissenters insisted, it would seem logically to follow that that was how a jury should be instructed, but the justices espousing that position were in the minority. And while the three “majority” justices certainly cited and quoted KRS 304.40-320 they absolutely ignored it in reaching their holding, grafting a common law res ipsa loquitur theory on to the statute and/ or simply applying common law negligence principles. To add to the confusion, Justice Leibson, whose concurring in result only vote was necessary to produce the resulting reversal, vehemently rejected the statute as unconstitutional. Not surprisingly with that fractured plurality opinion, no one knew quite what to do with KRS 304.40-320. To the extent an informed consent claim was addressed separately from general medical negligence, the common practice became to instruct, as the Kentucky Instructions to Juries volume still reflects, only on whether the physician “follow[ed] acceptable medical standards,” a practice that focused on “what the physician knew or should have known at the time he recommended the treatment to the patient.” Holton v. Pfingst, 534 S.W.2d at 786.

¶14Today the effect of KRS 304.40-320 on an informed consent claim, and more particularly on the jury instructions for such a claim, is squarely presented. To state the obvious, this Court is not free to ignore a statute passed by our General Assembly but must construe it. Ally Cat, LLC v. Chauvin, 274 S.W.3d 451, 455 (Ky. 2009) (Words in statute “mean something” and “we are not free to ignore” them.).

In construing statutes, our goal, of course, is to give effect to the intent of the General Assembly. We derive that intent, if at all possible, from the language the General Assembly chose, either as defined by the General Assembly or as generally understood in the context of the matter under consideration. We presume that the General Assembly intended for the statute to be construed as a whole, for all of its parts to have meaning, and for it to harmonize with related statutes. We also presume that the General Assembly did not intend an absurd statute or an unconstitutional one. Only if the statute is ambiguous or otherwise frustrates a plain reading, do we resort to extrinsic aids such as the statute’s legislative history; the canons of construction; or, especially in the case of model or uniform statutes, interpretations by other courts.

¶15Shawnee Telecom Resources, Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011) (internal citations omitted).

¶16Looking at the language the General Assembly chose, in an action against a health care provider “wherein the claimant’s informed consent is an element,” the statute provides when that informed consent “shall be deemed to have been given ...” This language is undeniably awkward *217but it also’ unquestionably states that the informed consent obligation (which has been long recognized at common law) has been satisfied where (1) the action by the provider is “in accordance with the accepted standard of medical or dental practice among members of the profession with similar training and experience” and (2) the information the patient received would give “a reasonable individual” a “general understanding of the procedure and medically or dentally acceptable alternative procedures or treatments and substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among health care providers who perform similar treatments or procedures.” KRS 304.40-820. Because the statute is not couched in terms of duty (“It shall be the duty of any health care provider in obtaining informed consent to ...”), Dr. Shaffer suggests that it is not a legislative declaration of duty but rather of a presumption, a presumption to be applied by the court in deciding whether a jury question exists. Given the language of the statute this position appears to have some merit but, on closer examination, it simply does not work.

¶17Dr. Shaffer cites Mason v. Commonwealth, 565 S.W.2d 140 (Ky. 1978), a crimi-' nal case in which the trial court gave-an insanity defense instruction which ended with a statement that “the law presumes every man sane until the contrary is shown by the evidence.” This Court affirmed the conviction but instructed the trial courts to delete that language from the instructions in the future.1 “Presumptions are in the nature of guides to be followed by the trial judge in determining whether there is sufficient evidence to warrant the submission of an issue to the jury, and should not be included in the instruction.” Id. at 141. The Court cited McCormick’s Handbook of the Law of Evidence § 345 (2nd ed. 1972) for the proposition that the effect of a presumption is to shift the burden of producing evidence with respect to a presumed fact so that if that evidence is actually produced by the adversary, the presumption disappears. “The trial judge need only determine that the evidence introduced in rebuttal is sufficient to support a finding contrary to the presumed fact.” 565 S.W.2d at 141, citing McCormick’s at p. 821. In the context of Mason, once the trial judge determined that there was sufficient evidence regarding the defendant’s mental state to justify instructing the jury on an insanity defense, there was no need to tell the jury about what the law generally presumes. Stated differently, where there is evidence to create a jury question regarding the insanity defense the presumption of sanity is gone, or as McCormick states it is “spent and disappears.” Id. See also Lawson, The Kentucky Evidence Law Handbook §§ 10.05 — .10 (5th ed. 2013) discussing civil statutory and common law presumptions.

¶18Applying presumption law (and logic) to KRS 304.40-320 reveals the problem with limiting its application to the domain of the trial judge. Once discovery is completed, there are three possible scenarios. In the first scenario, as here, there will be competing expert testimony regarding whether “the action of the health care provider” was in accordance “with the accepted standard of medical ... practice” and thus the “presumption” disappears and the case goes to the jury. In the second scenario, if the plaintiff has no expert testimony that the defendant failed to meet the standard of care, the first part of the “presumption” test applies (it is presumed the defendant acted in accordance with the applicable standards)15 and, if KRS *218304.40-320 truly is a presumption, the second part regarding “a reasonable individual” understanding the substantial risks and hazards would have to be applied by the trial judge. Finally in a third possible scenario, if the plaintiff has expert testimony and the defendant has no evidence to the contrary, the first part of the “presumption” cannot apply because the only evidence of record is that the defendant has failed to meet the accepted standard. In that event, there is no issue to be tried and the plaintiff would be entitled to summary judgment or a directed verdict, as appropriate.

¶19The difficulty with construing KRS 304.40-320 as a presumption is that it would result in the trial court applying different “law” to the informed consent issue than the jury applies if given the currently prevailing instruction. It is difficult to- see that as anything but an absurd result, which under our rules of statutory construction we are compelled to avoid.16Shawnee Telecom, 354 S.W.3d at 551.

¶20As Dr. Shaffer notes, KRS 304.40-320 was part of a tort-reform effort and was produced by the Governor’s Hospitals and Physicians Professional Liability Insurance Advisory Committee in 1975. In the Committee’s Majority Report they describe the statute, (Section 13 of their proposal and eventually Section 4 of Senate Bill 248 in the 1976 Session of the General Assembly), as follows:

This section will legislatively require that “informed consent” cases be proven by expert testimony relating to accepted standards of practice of the profession in providing information, and further require that an objective standard be applied in determining whether that information would likely have resulted in any different decision by the plaintiff. The purpose of this section is to eliminate the possibility of (1) a jury’s speculating after the fact that the health care provider should have told the plaintiff of a given risk even though accepted professional standards would not require such advance information, and (2) a plaintiffs testifying that had he known of an un-forseeable or unlikely injury he would not have consented to the recommended health care.

¶21As detailed in J. Vaughan Curtis, Informed Consent in Kentucky After the Medical Malpractice Insurance and Claims Act of 1976, 65 Ky. L.J. 524, 530 (1976), contemporaneous with the law’s passage there were two different standards by which courts around the country measured the adequacy of disclosures to patients, the medical community standard and the material risk standard. The medical community standard is self-evident. Representative of the latter standard, is Canterbury v. Spence, 464 F.2d 772, 787 (D.C. Cir. 1972), wherein the court held “the test for determining whether a particular peril must be divulged is its materiality to the patient’s decision.” This material risk standard, the minority position, meant that expert testimony was generally not required and lay testimony would suffice. *21965 Ky. L.J. at 532-33. The Committee, and ultimately the legislature, firmly aligned Kentucky with the medical community standard in subsection (1), but in what can be accurately deemed “a policy compromise,” id. at 536, between that standard and the matérial risk standard also included subsection (2) of the statute, a subsection that looks at the disclosure from the “reasonable individual” standpoint. Indisputably, KRS 304.40-320 arose from an effort to address a “health care malpractice crisis,” Committee Majority Report at 1, but the language the legislature gave us is the language we must apply and, inart-fully drafted as it may be, it lends itself to the logical conclusion that this is the Kentucky law relevant to informed- consent. Looking back at the Committee’s Majority Report, they appear to have believed as much, going so far as to emphasize the “objective standard”, the “reasonable individual” test in subsection (2), by stating the law would prevent “a plaintiffs testifying that had he known” of a risk he would not have consented. Moreover, while KRS 304.40-320 concededly does not contain clear “duty” language, Horsley, — S.W.3d at-, 2015 WL 602813 **8-9, it must mean something and to construe it as a presumption or a safe harbor (the only alternative explanations that have been offered) leads to a disconnect, a disparity in the law being applied to the evidence by the trial judge vis-a-vis the jury. As discussed above, that is an absurd result that must be avoided.

¶22Finally, given Justice Leibson’s dissent in Keelquoted above, the issue of conflict, if any, between KRS 304.40-320 and the jural rights doctrine has found its way into this case as well. In Caneyville Volunteer Fire Dep’t v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 797-801 (Ky. 2009), the jural rights doctrine was discussed and applied by Justice Scott writing for the Court, joined by Justice Venters. The remaining members of the Court concurred in result only with three members of the Court expressing the belief that the jural rights doctrine is “unsupportable.” 286 S.W.3d at 816. In the majority opinion in this case, Justice Venters finds the General Assembly’s action in adopting the informed consent statute consistent with the jural rights doctrine. So regardless of whether one subscribes to the doctrine or not, it seems apparent that no member of this Court finds a jural rights issue with the General Assembly’s passage of KRS 304.40-320.

¶23In closing, the course charted today is admittedly different from current practice, but after thorough consideration I am convinced that it is the course that was intended by our General Assembly in 1976. A jury should be given the law applicable to the case and for that reason I concur in the result of the majority opinion.

¶27DISSENTING:

¶28The majority cites to Wemyss v. Coleman, 729 S.W.2d 174 (Ky. 1987), Humana of Kentucky, Inc. v. McKee, 834 S.W.2d 711 (Ky. Ct. App. 1992), and Henson v. Klein, 319 S.W.3d 413, 425 (Ky. 2010) for the proposition that jury instructions should contain statutorily imposed duties. I agree; however, those cases are distinguishable.

¶29In Wemyss, the issue was whether the instructions in a motor vehicle accident ease should include the duty to wear a seatbelt. The Court held that, because there was no statutory duty to wear a seatbelt, such an instruction was not appropriate. 729 S.W.2d at 180-81. In McKee, the Court of Appeals held that giving an instruction regarding the failure to test for PKU in an infant was appropriate because KRS 214.155 specifically required hospitals to administer that test. *220834 S.W.2d at 722. In Henson, a case involving a collision between two personal watercrafts, the primary issue before the Court was how the general duty of care, the statutory duty of care to “operate a motorboat or personal watercraft on public waters according to the ‘Rules of the Road,’ ” and the sudden emergency doctrine interact. The Court determined that an instruction incorporating a statutory duty, even a duty as amorphous as operating according to the “Rules of the Road,” was appropriate. Id. at 425.

¶30All three cases have a common theme— if there is a statutory duty and the evidence supports a violation of that duty, then instruction regarding the duty may be appropriate. The majority contends that KRS 304.40-320 creates a statutory duty to “inform patients of medical risks” and, if.the evidence supports it, the jury must be instructed on all of the elements contained in the statute. In support of this contention, the majority states that KRS 304.40-320 was enacted as “an amplification of the general duty” to “inform patients of medical risks” recognized by our predecessor Court in Holton v. Pfingst, 534 S.W.2d 786 (Ky. 1975). I disagree with this statutory interpretation.

¶31In Holton, the Court noted how other jurisdictions address the issue of informed consent.

Some courts categorically require the patient to produce expert testimony as to what disclosure of risks or hazards should be made. Other courts hold that experts are unnecessary and that lay witness testimony can establish a sub-missible case of failure to disclose a risk or hazard of treatment which a physician knew or should have known. Other courts have ordinarily required expert evidence by the plaintiff on the issue of the extent of disclosure required except in those instances where the court determined that the necessity of disclosure of the risk involved was ‘too clear to require expert medical testimony.’ Some of the text discussions although unsupported by decided cases have advocated a shift of burden approach whereby if the patient produces evidence of a failure to disclose a particular risk or hazard, then the burden shifts to the physician to excuse the failure by proof of professional standards which would seek to establish disclosure was either not required or was regarded as not in the best interest of the patient under the peculiar fact situation.

¶32Id. at 788-89 (citations omitted). After outlining, the preceding, the Court found that there was “no evidence, lay or expert, that [the physician] failed to disclose that which he knew or should have known.” Id. at 789. Therefore, the HoltonCourt did not state how courts in the Commonwealth should address the issue of informed consent.

¶33The majority infers from the timing of the passage of KRS 304.40-320 that the legislature was imposing an amplified duty on physicians regarding what they must do in order to obtain informed consent. However, because Holtondid not clarify how courts were to treat the issue of informed consent, and arguably muddied the waters, it is as likely, if not more likely, that the legislature was not imposing a duty on physicians but rather clarifying how the concept of informed consent fits within the standard of care applicable in nearly every medical negligence case.

KRS 304.40-320 provides as follows:

In any action brought for treating, examining, or operating on a claimant wherein the claimant’s informed consent is an, element, the claimant’s informed consent shall be deemed to have been given where:

*221(1) The action of the health care provider in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with the accepted standard of medical or dental practice among members of the profession with similar training and experience; and

(2) A reasonable individual, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedure and medically or dentally acceptable alternative procedures or treatments and substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures;

(3) In an emergency situation where consent of the patient cannot reasonably be obtained before providing health care services, there is no requirement that a health care provider obtain a previous consent.

¶34The introductory language of the statute is not language that creates a freestanding statutory duty. Unlike the statutes in McKeeand Henson, KRS 304.40-320 does not require hospitals, physicians, or other health care providers to do anything, let alone obtain informed consent. It simply states that, if informed consent is an element of a claim, -health care providers who comply with the statutory provisions shall be deemed to have obtained informed consent. Thus, the better interpretation of the statute is that it creates a presumption that, if a hospital, physician, or other health care provider complies with its provisions, informed consent was obtained and liability will not attach.

¶35I find further support for the interpretation that KRS 304.40-320 creates a presumption rather than a duty in this Court’s interpretation of KRS 186.640 in Rentsch-ler v. Lewis, 33 S.W.3d 518, 518 (Ky. 2000). KRS 186.640 provides that:

Any driver involved in any accident resulting in any damage whatever to person or to property who is ineligible to procure an operator’s license, or being eligible therefor has failed to procure a license, or whose license has been canceled, suspended or revoked prior to the time of the accident, shall be deemed prima facie negligent in causing or contributing to cause the accident.

¶36(Emphasis added.) This Court stated that KRS 186.640 created a rebuttable presumption of liability and, if a defendant overcame that presumption by showing he was not at fault, liability would not attach. Rentschler at 520. Similarly, the shall be deemed language in KRS 340.40-320 creates a rebuttable presumption of non-liability; it does not create a duty.

¶37In Wemyss, this Court held that, absent a statutory duty, expansion of jury instructions beyond the general standard of care is inappropriate. Section (1) of KRS 304.40-320 sets forth the general standard of care, and I agree with the majority that it provides appropriate language for an instruction when informed consent is an issue and there is evidence to support the giving of the instruction. See Oghia v. Hollan, 363 S.W.3d 30 (Ky. Ct. App. 2012). However, none of the sections of KRS 304.40-320 create or impose any duty to obtain informed consent. As the Court held in Wemyss“where there is no statutory duty, a proper instruction ... will state the general duty to exercise ordinary care ... leaving it to the jury to decide from the evidence whether the” failure to exercise that care was a substantial factor contributing to the plaintiffs injuries. Id. at 181. In this case, there is no statutory duty to obtain informed consent, and the trial court was only required to give a *222general instruction on the standard of care with regard to informed consent.

¶38We have held on a number of occasions that “[i]t is ‘never proper to instruct the jury as. to presumptions of law or of fact.’ ” Rentschler, 33 S.W.3d at 520, citing J. Palmore, Kentucky Instructions to Juries (Civil) § 13.11g, at 16 (4th ed. Anderson 1989); see also Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 824 (Ky.1992). The majority’s holding that the language in KRS 304.40-320(2) is mandated in cases involving informed consent does just that.

¶39Finally, I note that the legislature passed KRS 304.40-320 in 1976. We have not, in the past thirty-nine years, interpreted this statute as imposing the expanded duty the majority now finds. I am not convinced by the majority’s opinion that we should impose that expanded duty, particularly when there is no clear statutory mandate to do so. As stated above, and as I stated in Oghia, when the evidence dictates, the trial court shall issue two separate duty-of-care jury instructions; however, the trial court should not be required to include the non-existent duty the majority finds in KRS 304.40-320(2).

¶40For the foregoing reasons, I would affirm the Court of Appeals.