YVONNE THERESE ROGERS, EXECUTRIX OF THE ESTATE OF DONALD ROGERS, SR. AND YVONNE THERESE ROGERS, INDIVIDUALLY v. GEORGE ARONOFF, M.D.; UNIVERSITY MEDICAL ASSOCIATES, P.S.C.; AND JEWISH HOSPITAL HEALTHCARE SERVICES, INC., D/B/A JEWISH HOSPITAL
Annotate this Case
Download PDF
RENDERED: January 8, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002601-MR
YVONNE THERESE ROGERS,
EXECUTRIX OF THE ESTATE
OF DONALD ROGERS, SR.
AND YVONNE THERESE ROGERS,
INDIVIDUALLY
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JOHN WOODS POTTER, JUDGE
ACTION NO. 96-CI-000644
v.
GEORGE ARONOFF, M.D.;
UNIVERSITY MEDICAL ASSOCIATES, P.S.C.;
AND JEWISH HOSPITAL
HEALTHCARE SERVICES, INC.,
D/B/A JEWISH HOSPITAL
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; GUIDUGLI AND MILLER, JUDGES.
GUIDUGLI, JUDGE.
Yvonne Therese Rogers, Executrix of the Estate
of Donald Thomas Rogers (Rogers), and Yvonne Therese Rogers,
individually, appeal from an order of the Jefferson Circuit Court
which granted summary judgment in favor of appellees, Dr. George
Aronoff (Dr. Aronoff), University Medical Associates, and Jewish
Hospital Healthcare Services, Inc., d/b/a Jewish Hospital (the
Hospital).
We affirm.
On January 30, 1996, Donald and Yvonne Rogers filed a
complaint against appellees.1
In the complaint, Rogers alleged
that while performing a kidney biopsy on Donald, Dr. Aronoff
nicked his colon and then negligently monitored and cared for him
following the procedure.
Rogers further alleged that the
Hospital was negligent in treating him, and that University
Medical Associates was responsible for Dr. Aronoff’s conduct
under the doctrine of respondeat superior.
Our review of the record shows that the Hospital
propounded discovery requests to Rogers in February of 1996.
Dr.
Aronoff alleges in his brief that he also propounded discovery
requests to Rogers.
The record indicated that a pretrial conference was
held on April 28, 1997.
Following that conference, the trial
court entered an order instructing Rogers to disclose the
identity of any expert witness to be called at trial within
thirty days.
It appears that Rogers made no attempt to respond to
any of the discovery requests propounded by the appellees or to
identify expert witnesses.
Both the Hospital and Dr. Aronoff
filed motions for summary judgment on the ground that Rogers had
failed to identify an expert witness to testify that either of
them had breached the standard of care.
The trial court held a hearing on the summary judgment
motions on September 5, 1997.
Rogers’ attorney indicated that
1
When Donald Rogers later died of causes unrelated to this
action, the action was revived in Yvonne’s name in her capacity
as Executrix of Donald’s estate by order of the trial court.
-2-
they were going to proceed without expert witnesses under the
theory of res ipsa loquitur.
Based on Rogers’ decision to
proceed without expert testimony, the trial court entered summary
judgment in favor of the Hospital at the hearing.
In support of his motion for summary judgment, Dr.
Aronoff’s attorney advised the trial court during the hearing
that the kidney which was biopsied was a transplanted kidney, and
that this was Rogers’ second biopsy.
Counsel for Dr. Aronoff
stated that she had been informed by Rogers’ attorney that
informed consent was going to be at issue despite the fact that
it was not raised in the complaint.
She further stated that
piercing of the colon was a known risk of the procedure and that
Rogers had signed a full consent which identified this as a risk.
Counsel for Dr. Aronoff also stated that Rogers was on medication
which would make the colon fragile.
Based on the foregoing, Dr.
Aronoff’s attorney stated that expert testimony was needed to
establish deviation from the standard of care.
On September 8, 1997, the trial court entered summary
judgment in favor of Dr. Aronoff, holding:
It is undisputed that the vast majority of
liver biopsies are performed without a colon
being punctured. Therefore, the issue
becomes is this evidence of negligence. A
punctured colon is a recognized complication
of the biopsy procedure. Some are
undoubtedly due to negligence and some are
not. Therefore, the issue becomes could a
layman say that of the biopsies that do
result in a punctured colon, the majority are
the result of negligence. The Court finds
that this judgment is beyond the competence
of a layman without the benefit of expert
testimony.
-3-
As for the issue of informed consent, the
Court finds that a jury would also need the
assistance of expert testimony.
This appeal followed.
Like the trial court, we are unable to see how Rogers
could prevail without expert testimony as to how the appellees
violated the standard of care.
We also believe that Rogers’
claims are not amenable to application of the doctrine of res
ipsa loquitur.
Use of res ipsa loquitur is restricted to those
cases where the injury complained of was a type which usually
does not occur in the absence of negligence.
Jewish Hospital
Association of Louisville, Ky. v. Lewis, Ky., 442 S.W.2d 299, 300
(1969).
The best examples of proper application of res ipsa
loquitur in medical cases would be amputation of the wrong limb
or sewing up a surgical instrument inside a patient.
The foregoing is especially true in regard to Rogers’
claims against the Hospital.
“A patient admitted to a
hospital...is entitled to such reasonable care and attention for
his safety as his mental and physical condition, known or
discoverable by the exercise of ordinary care, may require.”
Miners Memorial Hospital Association of Ky. v. Miller, Ky., 341
S.W.2d 244, 245 (1960).
However, this standard does not require
the hospital to perform every act which would be performed by the
most cautious and skilled individual.
341 S.W.2d at 245.
Miners Memorial Hospital,
The fact that an accident occurred in and of
itself does not mean that the hospital acted in a negligent
fashion.
Id. at 246.
In malpractice cases, “negligence must be
established by medical or expert testimony unless the negligence
-4-
and injurious results are so apparent that laymen with a general
knowledge would have no difficulty in recognizing it.”
Rust, Ky., 420 S.W.2d 563, 564 (1967).
Harmon v.
See also, Johnson v.
Vaughn, Ky., 370 S.W.2d 591 (1963).
Having considered the parties’ arguments on appeal, the
orders of the trial court granting summary judgment in favor of
the appellees are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, DR.
ARONOFF & UNIVERSITY MEDICAL
ASSOCIATES:
G. William Bailey, Jr.
Elizabethtown, KY
William P. Swain
Susan D. Phillips
Louisville, KY
BRIEF FOR APPELLEE, JEWISH
HOSPITAL HEALTHCARE SERVICES,
INC.:
Russell H. Saunders
C. Alex Rose
Frank Miller, Jr.
Louisville, KY
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
