LEONA WATTS AND BOBBY WATTS v. APPALACHIAN REGIONAL HEALTHCARE, INC. d/b/a HAZARD ARH HOSPITAL
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Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001005-MR
LEONA WATTS AND BOBBY WATTS
APPELLANTS
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE JOHN DAVID CAUDILL, SPECIAL JUDGE
ACTION NO. 96-CI-00638
v.
APPALACHIAN REGIONAL HEALTHCARE, INC.
d/b/a HAZARD ARH HOSPITAL
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, HENRY AND TACKETT, JUDGES.
HENRY, JUDGE:
Appellants Leona Watts (Leona) and Bobby Watts
(Bobby) bring this appeal from an order of the Perry Circuit
Court, entered April 23, 2004, which sustained the motion of
appellee Appalachian Regional Healthcare, Inc. d/b/a Hazard ARH
Hospital (ARH) for summary judgment in a medical malpractice
action.
The main question before us is whether the trial court
erred in granting summary judgment by exclusion of the only
evidence of causation, the recanted report of an expert witness.
We affirm.
Initially, there is a procedural issue to address.
Appellants Bobby Watts and his wife, Leona Watts, were the
plaintiffs in the original medical malpractice complaint filed
in 1996.
The caption on the Notice of Appeal herein names as
appellants "Bobby Watts and Leona Watts" and the notice itself
names as appellants "Leona Watts, et al."
While use of "et al."
is not a proper designation in a Notice of Appeal (Kentucky
Rules of Civil Procedure [CR] 73.03(1)), designation of the
parties in the caption is sufficient.
See Schulz v. Chadwell,
548 S.W.2d 181 (Ky.App. 1977); Blackburn v. Blackburn, 810
S.W.2d 55 (Ky. 1991).
Thus, appellants to this appeal are Bobby
Watts and Leona Watts.
The more troublesome issue is this:
Bobby Watts died
in 2001, before the entry of the summary judgment which is the
subject of this appeal.
Bobby's cause of action did not cease
with his death, but it was necessary for his representative to
file a motion to substitute within a year following his death in
order to "revive" it.
411.140; 395.278.
CR 25.01; Kentucky Revised Statutes (KRS)
There is nothing, however, in the record to
indicate that Leona Watts, as Bobby Watts' executrix, filed the
proper motion to substitute, nor is there an order in the record
substituting her as the estate's representative.1
1
Failure to
We note that although an amended complaint was ordered filed five months
after Bobby Watts' death and two months after Leona Watts was appointed
executrix, this amended complaint merely noted the appointment of Leona Watts
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revive Bobby Watt's cause of action following his death and
failure to name in the Notice of Appeal the estate as one of the
party appellants leaves no representative named on behalf of his
estate who could be bound by any decision this court might make.
Turner v. Seale, 298 Ky. 403, 182 S.W.2d 953 (Ky. 1944).
Leona
Watts, individually, therefore, is the only appellant party to
this appeal.
Any further reference to appellant, therefore,
will be limited to Leona.
A summary of the factual and procedural history is
helpful before addressing the substance of appellant's
arguments.
On December 21, 1995, Bobby Watts discovered that he
had acquired Hepatitis C.
Within a year, on December 9, 1996,
he and his wife filed a negligence action against six
defendants:
1) ARH; 2) Sisters of Charity of Nazareth Health
System, Inc. d/b/a St. Joseph Hospital (St. Joseph Hospital); 3)
Dr. Mitchell Wicker (Wicker); 4) Dr. T.R. Uday Shankar
(Shankar); 5) Dr. Eli Boggs (Boggs); and 6) Dr. David B. Stevens
(Stevens).
The complaint alleged that Bobby acquired Hepatitis
C as a result of the negligent transfusion of blood by the
following defendants on the following five dates:
1) against
ARH and Drs. Wicker and Shankar for transfusion of contaminated
as executrix of Bobby Watts' estate and claimed damages both on behalf of
Leona personally and on behalf of the estate, but it did not follow the
requirements of CR 25.01 regarding a motion for substitution in order to
revive Bobby Watts' interest. And, although ARH made the failure to revive
argument in a supplemental summary judgment motion in June, 2002, there is
nothing in the record indicating that there was a ruling on this issue.
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blood during a surgical operation (endoscopy) on February 1,
1993;2 2) against St. Joseph Hospital and Dr. Stevens for
transfusion of contaminated blood during a surgical operation on
July 1, 1970 (disc excision), May 30, 1973 (disc fusion), and
August 14, 1978 (laminectomy); and 3) against ARH and Dr. Boggs
for transfusion of contaminated blood during an examination for
treatment for hematemesis and possible hiatus hernia and anemia
on September 22, 1977.3
During the course of the action, Bobby
and Leona were permitted to amend their complaint three times –
once on July 14, 2000, to include a battery claim against ARH
for the transfusion of contaminated blood without Bobby's
consent or medical necessity; and twice on June 4, 2001, to
include among other claims loss of consortium for Leona after
Bobby's death.4
A fourth amendment, providing for loss of
parental consortium for Bobby's children, appears of record
without any order allowing its filing.
2
It is undisputed that Bobby received blood transfusions on each date except
for that alleged received at ARH on February 1, 1993, where there is a
dispute between the medical records and testimony of Bobby's family and
friends (indicating a transfusion) and the testimony of the attending medical
staff (indicating that the records are in error). For the purposes of the
summary judgment motion, however, ARH accepted as true the allegation that
the blood transfusion was given.
3
For ease in discussion of these events, they will be referred to by the year
of their date of allegation: 1993; 1970-1973-1978; and 1977.
4
As the third amended complaint was not filed in the record, it is unknown
what it claimed.
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As the case progressed, apparently all defendants
except ARH were either dismissed or had summary judgment
sustained, and only the 1993 allegation remained against ARH.5
During the course of the action ARH filed several
summary judgment motions.
On April 7, 2000, ARH filed a motion
for summary judgment addressing for the first time the issue of
lack of evidence on causation.6
In support, ARH referred to the
testimony of two of Bobby's medical experts on the issue of
causation, who both testified that Hepatitis C exposure could
lay dormant for ten to twenty years and that it was impossible
to say within a reasonable degree of medical probability when
Bobby was exposed to and contracted Hepatitis C.
Most damaging however, was the retraction by Bobby and
Leona's expert, Dr. Sundaram.
In a 1997 report, Dr. Sundaram
concluded that the 1993 blood transfusion at ARH was the sole
5
On June 2, 1997, Bobby and Leona entered into an agreed order pertaining to
the 1970-1973-1978 allegations which dismissed, without prejudice, St. Joseph
Hospital, and left Dr. Stevens as the only defendant for these occurrences,
but there is no order in the record indicating the resolution of the
allegations against Dr. Stevens. On May 4, 1998, Bobby and Leona entered
into an agreed order pertaining to the 1977 allegation which dismissed, with
prejudice, Dr. Boggs, and left ARH as the only defendant for that allegation,
but there is no order in the record indicating the resolution of ARH's case
as relates to the 1977 allegation. On March 23, 2000, a summary judgment in
favor of Drs. Wicker and Shankar was granted pertaining to the 1993
allegation which left ARH as the only defendant for that allegation. An
appeal of this summary judgment order was affirmed by this Court in an
unpublished opinion rendered May 25, 2001 (Bobby Watts and Leona Watts v.
Mitchell Wicker, M.D. and T.R. Uday Shankar, M.D., 2000-CA-001006-MR;
discretionary review denied, Bobby Watts and Leona Watts v. Mitchell Wicker,
M.D., et al., 2001-SC-00500-D). It is the remainder of this 1993 allegation
against ARH which forms the basis for the summary judgment at issue herein.
6
As indicated above, for the purposes of the summary judgment motion, ARH
accepted the allegation as true that Bobby had received a blood transfusion
on February 1, 1993 while a patient at ARH.
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cause of the transmission of Hepatitis C, indicating that as a
new disease, no one really knew how fast it spread, but "in all
medical probability and in our professional opinion, if [Bobby]
had contracted this disease in [prior operations], [he] would
probably have already been deceased."
In his deposition on
January 26, 2000, however, Dr. Sundaram appeared to change his
1997 opinion.
He indicated that it was hard to say which
transfusion caused the transfer of the disease, basing this
opinion on two medical publications that concluded that the
spread of Hepatitis C was slow and no symptoms or physical signs
may be noted for decades after the infection.
Upon questioning
by Bobby and Leona's attorney, however, Dr. Sundaram appeared to
equivocate on the causation issue to the extent that he
testified to still standing by his 1997 report.
On April 27,
2000, Bobby and Leona filed a memorandum in opposition to the
summary judgment motion and on May 8, 2000, the trial court
denied summary judgment.
Bobby died on January 5, 2001.
The death certificate
listed four causes of death, with Hepatitis C as the last cause.
Leona was appointed executrix of Bobby's estate on April 18,
2001.
(Perry District Court Case No. 01-P-00065).
On June 19, 2001, ARH filed a subsequent motion for
summary judgment.
In the motion, ARH cited this Court's May 25,
2001, unpublished opinion in Bobby Watts and Leona Watts v.
-6-
Mitchell Wicker, M.D. and T.R. Uday Shankar, M.D., 2000-CA001006-MR, which affirmed summary judgment in favor of Drs.
Wicker and Shankar on the 1993 allegation, concluding that the
doctors had no duty to screen blood obtained from a donor blood
bank.
ARH argued "law of the case" as to any negligence by ARH,
and further argued that Bobby and Leona's battery claim was
barred by the statute of limitations.
Bobby and Leona opposed
this motion by response filed July 5, 2001.
The record is
silent as to any ruling on this motion.
Nearly one year later, on March 12, 2002, ARH again
filed a motion for summary judgment, citing testimony from a
July 5, 2001 deposition by Dr. Sundaram (subsequent to the
January 26, 2000 deposition testimony recanting and then
appearing to equivocate on the 1997 opinion) in which he again
recanted the 1997 opinion but this time unequivocally indicated
that he could not, within a reasonable degree of medical
probability, state that Bobby contracted Hepatitis C as a result
of the 1993 transfusion.
As such, ARH argued that summary
judgment was appropriate as there was no evidence of causation.
ARH also renewed its arguments from the June 19, 2001, summary
judgment motion.
Bobby and Leona filed an opposing response on
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April 5, 2002, and ARH filed a responsive pleading on April 25,
2002.7
On June 20, 2002, Special Judge John David Caudill,
sitting for Judge Douglas C. Combs, Jr., entered an order
granting ARH's motion for summary judgment, dismissing all of
Bobby and Leona's complaints with prejudice.8
Upon further argument by both parties, however, Judge
Combs entered an order on September 6, 2002, summarily granting
Bobby and Leona's motion to vacate the summary judgment granted
by Special Judge Caudill.9
On October 4, 2002, Judge Combs
amended the above order to include findings adopting the
reasoning of the Watts' authority of Dinett v. Lakeside
Hospital, 811 So.2d 116 (La.App. 2002), finding "as a matter of
law that the dispute regarding the testimony of Plaintiffs'
expert Dr. R. Sundaram involves his conclusion rather than his
7
During this same time period, on April 1, 2002, ARH also filed a motion for
partial summary judgment on the claims of Bobby and Leona's children for loss
of parental consortium, contending that Kentucky law does not recognize an
adult child's claim for loss of consortium. On June 18, 2002, ARH
supplemented this motion, claiming that the children of Bobby and Leona were
barred from bringing their action due to a failure to timely revive the
action and violations of CR 8.01. The record is silent as to any ruling on
this motion, although the record does contain a copy of the motion for leave
to file a fourth amended complaint along with a copy of the complaint
alleging damages for the children of Bobby Watts, filed July 12, 2002, the
same date as the motion was noticed for hearing.
8
Leona Watts' appeal of this order was dismissed by this court on January 15,
2003, for failure to file a preheating statement (Leona Watts; et al. v.
Appalachian Regional Healthcare, Inc., D/B/A Hazard-ARH Hospital, 2002-CA001596-MR).
9
ARH's appeal of this order was dismissed by this court on June 17, 2003, as
interlocutory (Appalachian Regional Healthcare, Inc., D/B/A Hazard-ARH
Hospital v. Leona Watts; et al; 2002-CA-002094-MR).
-8-
methodology and reasoning, and that Goodyear Tire and Rubber Co.
v. Thompson, Ky. 11 S.W.3d 575 (2000) therefore has no
application," and that "Dr. Sundaram sufficiently stated in his
January 26, 2000 deposition that Bobby Watts' Hepatitis C was
caused by the alleged 1993 blood transfusion at Defendant's
facility, and . . . as a matter of law that Dr. Sundaram's
retraction of that opinion in his July 5, 2001 deposition does
not prohibit Plaintiffs from presenting Dr. Sundaram's January
26, 2000 deposition testimony to the jury."
Almost two years later, on April 5, 2004, ARH again
moved for summary judgment, arguing that Dr. Sundaram's original
1997 opinion was inadmissible because he later retracted it and
it was also based on flawed methodology.
Following a responsive
pleading from Bobby and Leona,10 Special Judge Caudill again
granted ARH's motion, stating:
[T]he opinion originally stated by the
Plaintiffs' expert, Dr. R. Sundaram, was
based on flawed methodology which rendered
it inadmissible under the Kentucky Rules of
Evidence. The Court furthermore finds that
Dr. Sundaram withdrew his original opinion
on the issue of causation and that it
therefore has no evidential value, even if
it was otherwise admissible. The Plaintiffs
have therefore failed to present the
required expert testimony on the issue of
causation.
10
Due to conflicts in their schedules, neither party's attorney could be
present on the date scheduled to hear the summary judgment motion. Bobby and
Leona's attorney asked for a continuance on the summary judgment hearing, but
alternatively agreed to have the motion decided on the pleadings, which was
what occurred.
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This appeal followed.
Before us, appellant contends that the trial court
erred in its grant of summary judgment to ARH.
More
specifically, appellant argues that 1) ARH's renewed motion for
summary judgment is frivolous pursuant to CR 11 as it had
already been denied by the trial court; 2) Dr. Sundaram's
original opinion is an admissible conclusion of an expert; 3)
Dr. Sundaram's original opinion is admissible as substantive
evidence; 4) Appellant has a viable battery claim based upon
informed consent/battery; 5) causation is supported by
circumstantial evidence; and 6) a jury issue exists on damages
for an increased risk of harm due to an improper transfusion.
The standard of review on appeal of a summary judgment
under Kentucky law is well-settled:
The standard of review on appeal of a
summary judgment is whether the trial court
correctly found that there were no genuine
issues as to any material fact and that the
moving party was entitled to judgment as a
matter of law. Kentucky Rules of Civil
Procedure (CR) 56.03. There is no
requirement that the appellate court defer
to the trial court since factual findings
are not at issue. Goldsmith v. Allied
Building Components, Inc., Ky., 833 S.W.2d
378, 381 (1992). "The record must be viewed
in a 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 is only proper where the
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movant shows that the adverse party could
not prevail under any circumstances."
Steelvest, 807 S.W.2d at 480, citing
Paintsville Hospital Co. v. Rose, Ky., 683
S.W.2d 255 (1985). Consequently, summary
judgment must be granted "[o]nly when it
appears impossible for the nonmoving party
to produce evidence at trial warranting a
judgment in his favor ..." Huddleston v.
Hughes, Ky.App., 843 S.W.2d 901, 903 (1992),
citing Steelvest, supra (citations omitted).
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996).
At the point of summary judgment, the record consisted
of Dr. Sundaram's original report (1997) and his two depositions
(2000 and 2001).
The 1997 report, while acknowledging no
knowledge of the speed of progression of the disease, concluded
by process of elimination that the disease was transferred by
the more recent 1993 transfusion as opposed to the prior
transfusions; the 2000 deposition retracted the 1997 opinion,
relying on medical publications that indicated a slow
progression of the disease, but appeared to equivocate by still
standing by the 1997 report; and the 2001 deposition
unequivocally retracted the 1997 opinion on causation which
linked the 1993 transfusion with Hepatitis C.
The question for our review is whether the trial court
properly excluded Dr. Sundaram's 1997 opinion which provided the
only causation between the 1993 blood transfusion and Bobby's
contracting of Hepatitis C, for without it, there is no
competent evidence of causation and summary judgment is proper.
-11-
The trial court excluded Dr. Sundaram's 1997 opinion
"based on flawed methodology which rendered it inadmissible
under the Kentucky Rules of Evidence."
other express findings of fact.
The trial court made no
It is our responsibility as the
reviewing court, without benefit of any express findings of
fact, to determine if the trial court's findings are clearly
erroneous, or stated another way, if there is substantial
evidence to support the trial court's ruling.
Miller v.
Eldridge, 146 S.W.3d 909, 917 (Ky. 2004).
Both parties, in addressing the admissibility of Dr.
Sundaram's 1997 expert opinion, argue the applicability of
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1973) (adopted by the Kentucky Supreme
Court in Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky. 1995),
overruled on other grounds, Fugate v. Commonwealth, 993 S.W.2d
931 (Ky. 1999)).
Applying Daubert, the record contains
uncontroverted evidence indicating that Dr. Sundaram's 1997
opinion was untested, unsupported by peer review and
publication, subject to a high rate of error, and without
general acceptance in the medical community.
There is thus
substantial evidence to support the trial court's conclusion
that the 1997 opinion was inadmissible as based on flawed
methodology.
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The trial court alternatively concluded that the
withdrawal of the 1997 opinion by Dr. Sundaram rendered it of no
evidential value and thus inadmissible.
As stated in Miller,
supra at 919, analysis under Daubert is not necessarily
required, as "we can neither rule out, nor rule in, for all
cases and for all time the applicability of the factors
mentioned in Daubert, nor can we now do so for subsets of cases
categorized by category of expert or by kind of evidence.
Too
much depends upon the particular circumstances of the particular
case at issue."
In this particular case, under the trial
court's alternative conclusion, Dr. Sundaram's 1997 opinion is
inadmissible due to his retraction based upon unrefuted medical
publications.
See Spencer v. City Taxi Service, Inc., 439
S.W.2d 74 (Ky. 1969); Ingram v. Galliher, 309 S.W.2d 763 (Ky.
1958).
As such, this retraction provides substantial evidence
to support the trial court's findings that Dr. Sundaram's 1997
expert opinion was without any evidential basis and thus
inadmissible.
Under either theory, the trial court's exclusion of an
expert's opinion is reviewed under an abuse of discretion
standard, or whether the decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.
Miller,
supra, at 914, citing Goodyear Tire, supra, 11 S.W.3d at 581.
Herein, the doctor's 1997 opinion was flawed under Daubert and
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had been unequivocally retracted by the doctor.
We can thus
find no abuse of discretion in the trial court's exclusion of
the 1997 opinion.
"(P)roximate causation between negligence and the
injury complained of in a medical malpractice case must be
established by expert testimony," (Sakler v. Anesthesiology
Associates, P.S.C., 50 S.W.3d 210, 214 (Ky.App. 2001), citing
Wilder v. Eberhart, 977 F.2d 673 (1st Cir. 1992), cert. denied
508 U.S. 930, 113 S.Ct. 2396, 124 L.Ed.2d 297 (1993)).
Herein,
with the exclusion of the 1997 evidence, appellant has failed to
provide any expert testimony linking the 1993 blood transfusion
to Bobby's acquisition of Hepatitis C, making it impossible for
her to prevail.
As there was no genuine issue of fact as to
causation, the trial court's order of summary judgment was
proper.
Leona alternatively argues that conflicting evidence
on whether Bobby was given a blood transfusion in 1993 provides
a genuine issue of material fact on the battery claim, and as
such the battery claim should have withstood summary judgment.
Despite the lack of specific mention of the battery
claim in the summary judgment, the claim was argued in the
numerous summary judgment pleadings before the court as well as
in the motion and response referred to in the judgment.
All
claims, including battery, were thus disposed of by the trial
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court's finding "that there are no genuine issues of material
fact and that it would be impossible for the Plaintiffs to
produce evidence at trial warranting a judgment in their favor"
due to lack of expert testimony on the issue of causation.
We find this disposition correct on the battery claim
as well.
Even though a question of fact exists as to whether
the transfusion was given, a review of the amended complaint
indicates that appellant's battery claim is based on contraction
of Hepatitis C from the 1993 transfusion.
Or, stated another
way, appellant's battery claim fails if there is no evidence
that the Hepatitis C was caused by the 1993 blood transfusion.
As we have indicated above, there is no evidence of causation
between the contraction of Hepatitis C and the 1993 blood
transfusion.
There is thus no genuine issue of material fact
and the trial court's summary judgment was proper.
We need not reach the remainder of appellant's
arguments.
Judge Combs' order vacating Special Judge Caudill's
summary judgment in ARH's favor is not "law of the case" as that
doctrine holds that an appeal settles all errors that were or
might have been relied upon.
633, 4 S.W.2d 731 (Ky. 1928).
Cf. Sowders v.. Coleman, 223 Ky.
S.W.2d 262, 263 (Ky. 1964):
See also Siler v. Williford, 375
"When an appellate court decides a
question concerning evidence or instructions, the question of
law settled by the opinion is final upon a retrial in which the
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evidence is substantially the same and precludes the
reconsideration of the claimed error on a second appeal."
And,
appellant failed to present for our review the issues of
causation by circumstantial evidence and compensatory damages
for an increased risk of harm due to an improper transfusion as
she failed to raise them in her prehearing statement.
CR
76.03(8).
For the foregoing reasons, the order of the Perry
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John H. Metz
Cincinnati, Ohio
Johann F. Herklotz
Lexington, Kentucky
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