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904 S.W.2d 246 (1995) Ronald K. GOSSAGE, Appellant, v. Dr. Mack ROBERTS, M.D., Appellee. No. 94-CA-1743-MR.
Court of Appeals of Kentucky
August 18, 1995.
*247 Ronald K. Gossage, Monticello, pro se. John L. Tate, Monique R. Hunt, Stites & Harbison, Louisville, for appellee. Before HOWERTON, JOHNSTONE and SCHRODER, JJ. JOHNSTONE, Judge.
At issue is the propriety of the summary dismissal of appellant’s medical malpractice claim stemming from alleged negligence in prescribing Prozac and Xanax to treat appellant’s depression. Of the several arguments advanced for reversal, the primary focus of our review is the conclusion that appellant is collaterally estopped from relitigating causation already established in a criminal proceeding for his act of shooting two women while taking the drugs in question. Having considered appellant’s arguments in light of facts appearing of record, we are convinced that the collateral estoppel doctrine was properly applied to appellant’s claims stemming from his conviction for assault under extreme emotional disturbance, but that it has no preclusive effect on his claims unrelated to the criminal proceeding.
After the illness and death of his wife from Lupus, Ronald Gossage sought treatment for depression from his family physician, appellee, Dr. Mack Roberts. Dr. Roberts initially prescribed Valium, but on appellant’s return visit he changed the prescription to one milligram of Xanax twice a day. Approximately two months later, in June 1990, Dr. Roberts placed appellant on twenty milligrams of Prozac in the morning and one milligram of Xanax at bedtime.
On February 12, 1991, appellant was charged in the shooting of Carol Denny and her mother at their home. At trial on these offenses, appellant denied any memory of the events on the day of the shooting. Although his sole defense was involuntary intoxication from ingestion of prescription drugs, no instruction on involuntary intoxication was given. The jury was instructed, however, on assault under extreme emotional disturbance defined as follows:
a temporary state of mind so enraged, inflamed, or disturbed as to overcome one’s judgment; and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes. It is not a mental disease in itself, and an enraged, inflamed, or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse therefor, the reasonableness of which is to be determined from the viewpoint of a person in the Defendant’s situation under circumstances as the Defendant believed them to be.
Rejecting instructions on assault in the first, second, and fourth degree, the jury convicted appellant of assault under extreme emotional disturbance and recommended sentences of two three-year terms to be served concurrently. The trial judge, however, ordered appellant’s sentences to run consecutively…