MATTIE BERNARD v. JEFFREY B. RICHARDSON, M.D.Annotate this Case
RENDERED: SEPTEMBER 15, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE HUGH ROARK, JUDGE
ACTION NO. 93-CI-01259
JEFFREY B. RICHARDSON, M.D.
** ** ** ** **
COMBS, KNOPF, AND TACKETT, JUDGES.
Mattie Bernard appeals from a February 9, 1999,
summary judgment of the Hardin Circuit Court dismissing her
medical negligence action against Jeffrey B. Richardson, M.D.
Bernard contends that her claim should be excepted from the
general rule requiring expert testimony to support a cause of
action for malpractice and that the trial court erred by
Being persuaded that the trial court
applied the general rule correctly, we affirm.
At some point in the late 1980's, apparently, Bernard
began suffering from bouts of a hive-like rash.
The rash would
appear without warning at different places on her body and would
last for several days.
It was physically and mentally
distressing, and on occasion it affected Bernard’s eyes, making
them so painfully sensitive to light that she was unable to leave
Bernard’s family physician tried various remedies,
without success, and referred Bernard to several specialists.
early August 1992, her condition still unresolved, Bernard was
referred by an allergist to the appellee, Dr. Richardson, who is
Dr. Richardson’s initial prescriptions seem to have
fared no better than the others that had been tried.
August 1992, Dr. Richardson prescribed Dapsone, an antibacterial
drug, which Bernard took orally once per day.
When she had taken
the medicine for about two weeks, she began to experience a sore
throat; fever; generalized pains, some of them sharp; weakness;
and labored breathing.
Consequently, on about September 6 or 7,
1992, Bernard was seen in the emergency room at Hardin Memorial
Apparently she was treated for pneumonia and sent
Her symptoms worsened, however, particularly her shortness
of breath, and she returned to the emergency room on September 9,
She was admitted to the hospital, where it was
determined that she was suffering from an adverse reaction to
That medicine was discontinued, and gradually Bernard’s
acute symptoms subsided.
The rash, too, the parties seem to
agree, appears now far less often than it did and in episodes far
Nevertheless, Bernard claims that, as a result of
her exposure to Dapsone, she is permanently weakened and sore;
that persistent troubled breathing severely curtails her
activities; and that her liver, spleen, and lungs are permanently
In September 1993 Bernard filed suit against Dr.
She alleged, among other things not pertinent to
this appeal, that he had breached his duty to monitor her
response to Dapsone.
In September 1998, and by renewed motion a
few weeks later, Dr. Richardson moved for summary judgment on the
ground that Bernard, after more than adequate time for discovery,
had failed to proffer expert testimony concerning the existence
and nature of the duty alleged to have been breached.
responded by arguing that expert testimony was not necessary in
this case because other evidence, particularly the drug
manufacturer’s warnings, adequately defined Dr. Richardson’s
The trial court’s rejection of this argument prompted
As the parties have noted, summary judgments involve no
finding of disputed fact.
Rather, the record is to be construed
so as to give the benefit of all reasonable doubts to the nonmovant.
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky.,
807 S.W.2d 476 (1991).
Accordingly, although the record is far
from clear on this point, we shall assume that Dr. Richardson
made no attempt to monitor Bernard’s response to the Dapsone
during the entire two weeks of her treatment and learned of her
hypersensitivity to the drug only upon her adverse reaction.
As the parties have also noted, this Court reviews
summary judgments de novo, in the sense that we owe no deference
to the conclusions of the trial court.
As did the trial court,
we ask whether material facts are in dispute and whether the
party moving for judgment is clearly entitled thereto as a matter
Under this state’s rules of practice, summary judgments
are to be granted cautiously; they are appropriate only when it
appears impossible for the non-movant to prove facts establishing
a right to relief or release, as the case may be.
Medical providers do not guarantee the success of their
treatments, and the law does not require them to do so.
treatments, in fact, involve a substantial risk of harm
regardless of anything the provider does or does not do.
cases, therefore, medical negligence is not to be inferred simply
from an adverse result.
Perkins v. Hausladen, Ky., 828 S.W.2d
652 (1992); Neal v. Wilmoth, Ky., 342 S.W.2d 701(1961).
plaintiff alleging medical negligence must show, rather, that the
physician (or other provider of medical services) probably caused
the alleged injury by failing to meet a pertinent standard of
care or skill.
Moreover, because non-experts
are frequently incapable of determining the degree of care or
skill required in a particular instance, the rule has developed
in medical negligence cases “that negligence must be established
by medical or expert testimony unless the negligence . . . [is]
so apparent that laymen with a general knowledge would have no
difficulty in recognizing it.”
563, 564 (1967).
Harmon v. Rust, Ky., 420 S.W.2d
See also Keel v. St. Elizabeth Medical Center,
Ky., 842 S.W.2d 860 (1992).
Bernard acknowledges this “expert testimony” rule, and
acknowledges further that the “common knowledge” exception to the
rule has ordinarily been applied only when virtually no technical
knowledge is required to recognize the wrongfulness of the
plaintiff’s injury--cases, for example, of sponges sewn up within
Laws v. Harter, Ky., 534 S.W.2d 449 (1976);
Jarboe v. Harting, Ky., 397 S.W.2d 775 (1965); Butts v. Watts,
Ky., 290 S.W.2d 777 (1956).
Discussing this exception in
Perkins, supra, however, our Supreme Court recognized that, in
some malpractice cases
an inference of negligence [is] sufficiently
supplied by medical testimony of record even
though the plaintiff had no expert witness to
opine that the conduct fell below the
standard of acceptable professional care. . .
. [I]n determining whether the evidence was
sufficient to support an inference of
negligence, both common knowledge and the
testimony of medical witnesses could be
relied on, separately and in combination.
828 S.W.2d at 655 (citing Cho v. Kempler, 2 Cal.Rptr. 167
Relying on these notions from Perkins, Bernard argues
that the ‘common knowledge’ exception should be extended to cases
in which there is a reliable albeit non-testamentary source of
technical information on the basis of which laymen could readily
recognize both the physician’s standard of care and its breach.
In particular, she maintains that the drug descriptions and
warnings pharmaceutical companies distribute with their products,
and which are collected and periodically reprinted in the
Physicians’ Desk Reference1 (PDR), can, and in this case do,
obviate expert testimony to establish the practitioner’s standard
This narrow issue is apparently one of first impression
in Kentucky although our sister states have addressed it
Annotation, “Liability for Drug Side Effects,” 47
ALR5th 433 (1997).
At least two states have recognized the rule
Bernard urges and permitted PDR entries to suffice as prima facie
evidence of the physician’s duty.
Mulder v. Parke Davis, 181
N.W.2d 882 (Minn. 1970); Ohligschlager v. Proctor Community
Hospital, 303 N.E.2d 392 (Ill. 1973).
The more prevalent rule,
however, is that PDR entries, like passages from learned texts in
general,2 may sometimes be admitted in conjunction with expert
testimony, but do not alone satisfy the malpractice plaintiff’s
burden of proving the pertinent standard of care or skill.3
We find little with which to quarrel in this latter
statement of the rule, but the issue may be resolved slightly
less categorically, we believe, under this state’s precedents.
As noted above, the rule in Kentucky has long been that expert
testimony is required for every element of a malpractice
See Comment, “Package Inserts for Prescription Drugs as
Evidence in Medical Malpractice Suits,” 44 U. Chi. L. Rev. 398
(1977); Lawrence, “Drug Manufacturers’ Recommendations and the
Common Knowledge Rule to Establish Medical Malpractice,” 63 Neb.
L. Rev. 859 (1984).
See KRE 803(18).
Spensieri v. Lasky, 701 N.Y.S.2d 689 (Ct.App. 1999);
Morlino v. Medical Center, 706 A.2d 721 (N.J. 1998); Craft v.
Peebles, 893 P.2d 138 (Hawaii 1995); Mears v. Marshall, 905 P. 2d
1154 (Or.App. 1995); Ramon v. Farr, 770 P.2d 131 (Utah 1989).
plaintiff’s case unless the circumstances are such that a
layperson could readily recognize the existence of a particular
element without it.
It is conceivable that a PDR entry or
package insert could have such a clear and unmistakable import as
to amount to such a circumstance: “Caution!
Because of a high
risk of birth defects, under no circumstances administer this
product to a pregnant woman.”
We are unwilling, therefore, to
rule categorically that the “common knowledge” exception could
never apply in such a case.4
In the vast majority of cases,
however, expert testimony would be necessary to interpret the PDR
entry, and so the general rule requiring expert testimony would
remain in effect.
That is the case here.
The manufacturer’s warnings
upon which Bernard relies provide in pertinent part as follows:
The patient should be warned to respond to
the presence of clinical signs such as sore
throat, fever, pallor, purpura or jaundice.
Deaths associated with the administration of
Dapsone have been reported from
agranulocytosis, aplastic anemia and other
blood dyscrasias. Complete blood counts
should be done frequently in patients
receiving Dapsone. The FDA Dermatology
Advisory Committee recommended that, when
feasible, counts should be done weekly for
the first month, monthly for six months and
Bernard maintains that, in light of this warning, a lay person
could readily recognize that Dr. Richardson had a duty to perform
weekly blood counts during the first two weeks of Bernard’s
Dapsone treatment and that he breached that duty.
We of course express no opinion concerning the
admissibility of such evidence under the hearsay rules.
The warning, however, calls for “frequent” blood
counts, and notes an independent recommendation that blood counts
be taken weekly when it is “feasible” to do so.
We are not
persuaded that this is the sort of clear and unmistakable warning
from which a lay person can readily infer the physician’s
standard of care.
Plainly, the warning is serious and is to be
taken seriously, but its precautions are vague or are merely
They are subject, to the conditions of the
particular case, which it is the doctor’s responsibility to
Whether Dr. Richardson’s assessment and handling of this
case was inadequate cannot be determined, therefore, from the PDR
That determination required expert
testimony interpreting the PDR and reasonably suggesting that in
these circumstances Dr. Richardson should have responded
otherwise than he did.
Absent such testimony, Bernard’s claim
failed as a matter of law, and summary judgment was appropriate.
Accordingly, we affirm the February 9, 1999, judgment of the
Hardin Circuit Court.
TACKETT, JUDGE, CONCURS.
COMBS, JUDGE, DISSENTS BY SEPARATE OPINION.
COMBS, JUDGE, DISSENTING: It is impossible to determine
from the short record before us whether Dr. Richardson — as a
matter of fact — properly monitored the patient’s response to
That material fact remains in dispute and should be
resolved at trial — where the failure to call an expert witness
would very likely be fatal.
However, the patient should be
allowed to proceed to trial and to have the chance to produce an
expert witness at that time to testify as to the proper standard
of care and whether or not it was breached.
She should not have
to make her case in chief at this preliminary stage of the
I believe that summary judgment was premature and,
therefore, incorrect under these circumstances.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
G. William Bailey, Jr.
Bailey Law Office
Matthew B. Gay
Darby & Gazak, P.S.C.