DONALD RUCKER v. JEWISH HOSPITAL HEALTH CARE SERVICE, INC., D/B/A JEWISH HOSPITAL DONALD RUCKER v. WILLIAM C. RAMSEY AND JEANNIE EVANS
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RENDERED: July 13, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002049-MR
DONALD RUCKER
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH MCDONALD-BURKMAN, JUDGE
ACTION NO. 98-CI-006547
JEWISH HOSPITAL HEALTH CARE SERVICE,
INC., D/B/A JEWISH HOSPITAL
AND;
NO.
APPELLEE
1999-CA-002081-MR
DONALD RUCKER
APPELLANT
v.
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH MCDONALD-BURKMAN, JUDGE
ACTION NO. 98-CI-006547
WILLIAM C. RAMSEY AND
JEANNIE EVANS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON AND TACKETT, JUDGES.
TACKETT, JUDGE:
This is a consolidated appeal wherein Donald
Rucker appeals from an order of the Jefferson Circuit Court
entered on July 16, 1999, granting summary judgment to William C.
Ramsey, M.D. and Jeannie Evans, CRNFA, (Appeal No. 1999-CA002081-MR), and an order entered on August 10, 1999, granting
summary judgment to Jewish Hospital HealthCare Services, Inc.
(Jewish Hospital) (Appeal No. 1999-CA-002049-MR) in a medical
malpractice case.
The trial court granted summary judgment
because Rucker, despite being directed by the trial court to do
so within a reasonable time, failed to disclose the expert
medical witness he intended to use to support his medical
malpractice claim, and because without an expert medical witness
it would be impossible for Rucker to show that the appellees
breached any duty owed to him in the course of providing him with
medical treatment.
We affirm.
On September 25, 1997, Dr. Ramsey performed
reconstruction surgery on Rucker’s right shoulder.
It appears
that Rucker’s shoulder had originally been injured in 1995 in a
horse riding accident.
Dr. Ramsey was assisted in the operation
by Nurse Evans, and the operation was performed at Jewish
Hospital.
In conjunction with the reconstruction surgery, Dr.
Ramsey implanted “Steinman pins” and a “Bosworth screw” in
Rucker’s shoulder.
In a follow-up visit with Dr. Ramsey on November 21,
1997, it was determined that the Bosworth screw placed in
Rucker’s shoulder during the first surgery had ‘pulled out’ and
that another reconstruction would be necessary.
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Rucker was
admitted into Jewish Hospital on April 22, 1998, for a second
shoulder reconstruction surgery.
On May 4, 1998, in a follow-up
examination to the second surgery, Rucker was informed that
another surgical adjustment of the fixation would have to be
performed.
On May 7, 1998, Rucker was admitted to Jewish
Hospital for the readjustment surgery.
At the subsequent June
19, 1998, follow-up examination, Dr. Ramsey informed Rucker that
the Steinman pins were backing out, that the Bosworth screw may
require tightening, and that further surgery for adjustment of
plaintiff’s fixation would be necessary; accordingly, on June 25,
1998, Rucker was again admitted into Jewish hospital for shoulder
surgery.
On November 19, 1998, Rucker, who at all times relevant
to this litigation was an inmate at the Kentucky State
Reformatory, filed a pro se lawsuit against Dr. William C.
Ramsey, Nurse Jeannie Evans, Jewish Hospital, and various
“unnamed” defendants, alleging medical malpractice.
The
complaint alleged that the reconstruction surgery on Rucker’s
right shoulder had been negligently performed.
Rucker amended
his complaint on February 19, 1999, to correct various civil rule
deficiencies in the original complaint.
After the lawsuit was filed, Rucker filed various
pleadings, including a motion for default judgment against Jewish
Hospital.
In denying Rucker’s motion for default judgment, the
trial court stated in its January 25, 1999, order, “The Court
urges the Plaintiff to seek legal assistance in further
prosecuting this action as further inappropriate Motions will
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result in the Court’s consideration of attorney’s fees and other
sanctions against any offending party.”
Similarly, in its
January 22, 1999, order denying Jewish Hospital’s motion to
dismiss Rucker’s complaint based upon various Civil Rule
violations, the trial court stated that “IT IS FURTHER ORDERED
that any further deviations from the Kentucky Rules of Civil
Procedure will not be tolerated by the Court and same shall be
subject to appropriate rulings.
The Plaintiff is urged, once
again, to retain counsel to assist him in this action as strict
adherence to the above stated rules are commanded.”
On March 3, 1999, Dr. Ramsey and Nurse Evans filed a
motion for summary judgment.
On May 6, 1999, the trial court
entered an order denying the motion for summary judgment;
however, the order further stated that
[t]he Plaintiff shall have sixty (60) days
from the date of this order to retain and
disclose, pursuant to Civil Rule 26, the
expert witness he intends to use at the trial
of this action. Without such expert
testimony, Plaintiff cannot prove causation
and the Court would have no choice but to
dismiss this action. The Court will
entertain Defendants’ renewed Motion for
Summary Judgment and/or to Dismiss no sooner
than sixty (60) days from the date of this
Order.
Rucker failed to disclose his expert within the sixty
day period imposed by the trial court, and on July 19, 1999, the
trial court entered an order granting Dr. Ramsey and Nurse
Evans’s motion for summary judgment.1
1
Rucker thereafter filed a
On July 19, 1999, the same day summary judgment was granted
to Dr. Ramsey and Nurse Evans, Rucker filed a document captioned
“Plaintiff’s Compliance with Court’s Order, Entered May 6, 1999"
(continued...)
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motion to alter, amend, or vacate the summary judgment order,
which was denied by the trial court by order dated July 29, 1999.
Rucker thereafter filed Appeal No. 1999-CA-002049-MR.
On July
14, 1999, Jewish Hospital filed a motion for summary judgment.
On August 16, 1999, the trial court entered an order granting
Jewish Hospital’s motion for summary judgment.
filed Appeal No. 1999-CA-002081-MR.
Rucker thereafter
Rucker’s appeals were
subsequently ordered consolidated and now addressed by us.
First in order to qualify for summary judgment the
movant must “show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law."
CR 56.03.
The standard of review of a
summary judgment on appeal is whether the trial court correctly
found that there was no genuine issue as to any material fact and
that the moving party was entitled to judgment as a matter of
law.
The record must be viewed in the light most favorable to
the party opposing the motion for summary judgment and all doubts
are to be resolved in his favor.
Steelvest, Inc. v. Scansteel
Service Center, Inc., Ky., 807 S.W.2d 476, 480 (1991).
Summary
judgment should only be used when, as a matter of law, it appears
that it would be impossible for the respondent to produce
evidence at trial warranting a judgment in his favor and against
the movant.
Id. at 483 (citing Paintsville Hospital Co. v. Rose,
Ky., 683 S.W.2d 255 (1985)).
A party opposing a properly
supported motion for summary judgment cannot defeat it without
1
(...continued)
wherein he stated “Plaintiff hereby names Dr. Thomas Loeb his
expert witness.”
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presenting at least some affirmative evidence showing that there
is a genuine issue of material fact for trial.
Steelvest, 807
S.W.2d at 482.
Expert testimony is necessary to establish negligence
in medical malpractice cases, unless the negligence is so
apparent that a layperson with general knowledge would have no
difficulty in recognizing it. Maggard v. McKelvey, Ky. App., 627
S.W.2d 44, 49 (1981);
Harmon v. Rust, Ky., 420 S.W.2d 563
(1967); Jarboe v. Harting, Ky., 397 S.W.2d 775 (1965);
v. Vaughn, Ky., 370 S.W.2d 591 (1963).
Johnson
Rucker contends that in
this case he need not produce an expert witness because his case
falls within the res ipsa loquitur exception in that a layperson
would have no difficulty in recognizing the malpractice.
We
disagree.
Perkins v. Hausladen, Ky., 828 S.W.2d 652, 654 (1992)
throughly addressed res ipsa loquitur issues as follows:
As applied to this case the term [res ipsa
loquitur] means nothing more than whether the
facts and circumstances are such that
negligence can be inferred, even in the
absence of expert testimony. As Prosser
explains, res ipsa loquitur is a "Latin
phrase, which means nothing more than the
thing speaks for itself," and is simply
"[o]ne type of circumstantial evidence."
Prosser and Keeton on Torts, Sec. 39 (5th ed.
1984). Speaking to how the doctrine applies
to the "question of duty . . . in cases of
medical malpractice," Prosser advises that
"ordinarily" negligence cannot be inferred
simply from an "undesirable result"; expert
testimony is needed. Id. at 256. But there
are two important exceptions, one involving a
situation where "any layman is competent to
pass judgment and conclude from common
experience that such things do not happen if
there has been proper skill and care";
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illustrated by cases where the surgeon leaves
a foreign object in the body or removes or
injures an inappropriate part of the anatomy.
Id. The second occurs when "medical experts
may provide a sufficient foundation for res
ipsa loquitur on more complex matters."
Id.
at 257. . . .
Kentucky cases follow the same approach
as Prosser enunciates. Butts v. Watts, Ky.,
290 S.W.2d 777, 778 (1956) held that
"evidence of a technical character"
sufficient to sustain the plaintiff's case
could be found in "an admission of the
defendant, Dr. Watts," even though the
plaintiff had no expert witness. It quotes
with approval from Goodwin v. Hertzberg, 91
U.S. App. D.C. 385, 201 F.2d 204, 205 (D.C.
Cir.1952), a case with a factual scenario
analogous to the present one, in which a
"surgeon in performing an operation wherein
it was necessary to use care not to perforate
the patient's urethra" succeeded in doing so.
We stated:
“It is immaterial that no expert
testify that appellee acted
negligently."
Other Kentucky cases somewhat similar in
character are Jewish Hospital Association of
Louisville, Ky. v. Lewis, Ky., 442 S.W.2d 299
(1969), holding res ipsa loquitur applied
where there was extensive bleeding following
a catheterization procedure; Neal v.
Wilmoth, Ky., 342 S.W.2d 701 (1961), holding
res ipsa loquitur applied where the dentist's
drill slipped off the tooth; Meiman v.
Rehabilitation Center, Ky., 444 S.W.2d 78
(1969), holding res ipsa loquitur applied
where a bone was broken during therapy
treatment; and Laws v. Harter, Ky., 534
S.W.2d 449 (1976), holding that res ipsa
loquitur applied where a sponge was left in
the patient during a surgical procedure. In
all of these cases an inference of negligence
was 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. In Jarboe v. Harting,
Ky., 397 S.W.2d 775, 778 (1965), addressing
the "general rule" that "expert testimony is
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required in a malpractice case to show that
the defendant failed to conform to the
required standard," we state:
"However, it is a generally
accepted proposition that the
necessary expert testimony may
consist of admissions by the
defendant doctor. [Citations
omitted]. And there is an exception
to the rule in situations where the
common knowledge or experience of
laymen is extensive enough to
recognize or to infer negligence
from the facts."
. . . .
We agree with the trial court that the doctrine of res
ipsa loquitur does not apply in this case.
To the contrary,
Rucker’s shoulder surgery involved medical techniques entailing
highly technical operating procedures and risks.
Laypersons do
not have sufficient knowledge of the surgical techniques,
orthopedic devices, and the level of medical skills required to
be exercised by a surgeon to comply with his duty of care to the
patient in this type of shoulder reconstruction operation.
Given
the relative complexity of the surgical procedures involved in
this case, we are persuaded that there was not negligent conduct
so apparent that a lay person with general knowledge would have
no difficulty in recognizing it.
It follows that expert medical
testimony was absolutely necessary to demonstrate any breach of
duty by the defendants.
See Perkins v. Hausladen, Ky., 828
S.W.2d 652 (1992).
Next, Rucker argues that the trial court erred in
granting summary judgment prior to his obtaining crucial
discovery information.
However, the only “crucial discovery”
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Rucker refers to in his brief is “Dr. Ramsey’s admissions.”
Dr.
Ramsey, however, responded to Rucker’s request for admissions
and, as he has throughout this case, vehemently denied any breach
of duty in his treatment of Rucker.
There is not a reasonable
probability that Ramsey would have, in the absence of the summary
judgment order, made such an admission.
We disagree that there
were unresolved discovery issues which would prevent the trial
court from entering summary judgment.
Next, Rucker contends that the trial court erred in
granting summary judgment prior to his having an opportunity to
respond to the appellees’ summary judgment pleadings.
We note,
however, that the trial court’s May 6, 1999, order gave Rucker
sixty days in which to disclose his expert witness in the case.
This was adequate time for Rucker to have responded to the
appellees’ summary judgment pleadings.
Next, Rucker contends that the trial court abused its
discretion in denying his motion for default judgment.
While
Rucker’s notice of appeal in Appeal 1999-CA-002049-MR does not
identify the trial court’s January 25, 1999, order denying
Rucker’s motion for default judgment in his notice of appeal, we
will nevertheless briefly address the issue.
Dr. Ramsey and
Nurse Evans were served with process on December 4, 1998, and
their Answer was not filed until January 22, 1999, -- 49 days
later.
However, between the time of service and the time their
Answer was filed, Dr. Ramsey and Nurse Evans obtained an
extension of time from the trial court in which to file their
Answer upon the grounds that after the suit was filed, Ramsey and
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Evans were advised by Rucker that he would voluntarily dismiss
all claims against them.
Default judgments are not favored as a means for
resolving litigation.
The trial court is vested with broad
discretion in granting or denying a motion for default judgment,
and its judgment will not be disturbed unless that discretion has
been abused.
S.R. Blanton Development, Inc. v. Investors Realty
and Management Co., Inc., Ky. App., 819 S.W.2d 727, 730 (1991).
Given Ramsey and Evans’s reason for not having answered the
complaint, the extension of time granted to file their Answer,
and the relative inequities and prejudice attendant with granting
a default judgment in this case, we conclude that the trial court
did not err in denying Rucker’s motion for default judgment.
Next, Rucker contends that the trial court erred when
it refused to accept his naming of an expert witness subsequent
to the time permitted by the trial court’s May 6, 1999 order.
We
disagree.
Rucker’s July 19, 1999, filing was captioned
“Plaintiff’s Compliance With Court’s Order Entered May 6, 1999.”
However, the trial court’s May 6 order requiring Rucker to name
his expert witness was, in effect, an order requiring Rucker to
comply with CR 26 - which was specifically referred to in the
order - and respond to the appellees’ discovery request that
Rucker provide not simply the name of his expert but, in
addition, the substance of the facts and opinions to which the
expert was expected to testify.
See CR 26.02(4)(a)(i).
Rucker’s
July 19, 1999, filing was limited to the statement that Rucker
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“hereby names Dr. Thomas Loeb as his expert witness.”2
The
filing did not, however, indicate - much less contain an
affidavit - that Dr. Loeb was of the opinion or intended to
testify that Dr. Ramsey or Nurse Evans breached their duty of
care in their medical treatment of Rucker.
Hence, even following
Rucker’s July 19, 1999, filing, he had still failed to produce
affirmative evidence creating a genuine issue of material fact
regarding whether the appellees had breached their duty of care.
We are mindful that summary judgment should not be used
as a sanctioning tool for failure to comply with scheduling and
discovery orders, Ward v. Housman, Ky. App 809 S.W.2d 717 (1991);
Poe v. Rice, Ky. App. 706 S.W.2d 5 (1986); however, that is not
the situation here.
As previously noted, under the facts of this
case, expert medical testimony is necessary for Rucker to prevail
in this medical malpractice case.
At the completion of
discovery, Rucker had failed to present the testimony of an
expert witness alleging that the appellee’s had breached any duty
owed to Rucker.
Rucker instead relied upon the doctrine of res
ipsa loquiter.
Meanwhile the trial court granting an additional
60 days, Rucker again failed to produce the expert medical
testimony imperative to his malpractice claim.
It is uncontested that the appellees filed properly
supported summary judgment motions.
A party opposing a properly
supported summary judgment motion cannot defeat it without
2
The filing did note that Dr. Loeb had “made a
recommendation for the hardware to be removed” and that “Dr.
Thomas Loeb will remove the hardware and see plaintiff about (4)
weeks after surgery to determine what other surgical procedures,
if any, that may be necessary to correct plaintiff’s injuries.”
-11-
presenting at least some affirmative evidence showing that there
is a genuine issue of material fact for trial. Steelvest, Inc. v.
Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 482 (1991).
In light of the properly supported summary judgment motions, the
onus was upon Rucker to produce expert testimony showing that
there was a genuine issue of material fact regarding the
appellees’ breach of duty.
Rucker failed to meet his obligation.
Clearly the trial court properly entered summary judgment
because, based upon the record, there was not a genuine issue of
material fact regarding whether the appellees had breached their
duty of care to Rucker.
Moreover, because Rucker’s belated
filing “naming an expert” failed to cure this deficiency, we are
persuaded that the trial court properly declined to vacate its
prior order granting summary judgment on account of the filing.
Rucker had previously been provided with a generous amount of
time to produce his expert medical testimony, and the line had to
be drawn somewhere.
As much as we believe an alleged victim
should have his day in court, we also believe the rules are there
for a purpose and the trial court was quite generous in
interpretating same with reference to Mr. Rucker.
Finally, Rucker contends that the cumulative errors he
has identified denied him of his due process rights and,
consequently, summary judgment was improper.
We disagree that
there was any error, and, consequently, reject Rucker’s premise
that there was cumulative error.
For the foregoing reasons the judgment of the Jefferson
Circuit Court is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Donald Rucker, Pro Se
LaGrange, Kentucky
JEWISH HOSPITAL HEALTHCARE
SERVICES, INC.
Russell H. Saunders
Louisville, Kentucky
WILLIAM C. RAMSEY AND JEANNIE
EVANS:
William P. Swain
Louisville, Kentucky
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