GAES (GERALYN) VS. JONES (WHITNEY), ET AL.

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RENDERED: SEPTEMBER 11, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-001245-MR GERALYN GAES v. APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE GEOFFREY P. MORRIS, JUDGE ACTION NO. 04-CI-003968 WHITNEY JONES, M.D. AND MIDWEST GASTROENTEROLOGY ASSOCIATES, PLLC APPELLEES OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: ACREE, STUMBO, AND WINE, JUDGES. STUMBO, JUDGE: Geralyn Gaes appeals an order of the Jefferson Circuit Court granting Whitney Jones, M.D. and Midwest Gastroenterology Associates’ motion for summary judgment. Ms. Gaes argues that summary judgment was improper because there were genuine issues of material fact. Dr. Jones argues that Ms. Gaes did not have medical expert testimony as required in medical malpractice cases. We find that in this case, Ms. Gaes did not need expert testimony and that summary judgment was not proper. Dr. Jones is a gastroenterologist employed by Midwest Gastroenterology Associates. On May 12, 2003, Dr. Jones performed a colonoscopy on Ms. Gaes. The colonoscopy appeared to be uneventful and Ms. Gaes was discharged with instructions to contact Dr. Jones’ office if she had any problems or concerns. On May 13, 2003, Ms. Gaes’ husband called Dr. Jones’ office and spoke with Nurse Practitioner Melissa Jones. He reported his wife was having abdominal pain. It is disputed as to what occurred during the phone call. Ms. Gaes states that her husband was told she was just having gas pains and that she should walk around and take Gas-X. Ms. Jones stated in her deposition that she also informed Mr. Gaes that Ms. Gaes should go to the emergency room if the pain became severe or if she developed nausea. On May 14, 2003, Ms. Gaes still had abdominal pain. She called the doctor’s office again and spoke with Nurse Practitioner Jones. Ms. Gaes claims that all Ms. Jones told her to do was walk around, take Gas-X, and try to eat something. Ms. Jones states that she also told Ms. Gaes she might want to get some abdominal x-rays and go to the emergency room. Ms. Gaes denies that they discussed getting x-rays or going to the emergency room. Ms. Gaes called the office again on May 15, 2003, stating that now her abdomen had become swollen and she could not sit up. She spoke again with Ms. Jones. Ms. Jones stated in her deposition that she informed Ms. Gaes she 2 should go get an abdominal x-ray. Ms. Gaes claims that she was never given this information. Ms. Gaes called again that evening and talked to Dr. Kaikaus, Dr. Jones’ partner. She told him about her problems and he asked if she had ever been told to get an abdominal x-ray to make sure she had not been injured during the colonoscopy. She replied in the negative and he set up an appointment for an x-ray for the next morning. The next morning, Ms. Gaes had the x-rays and they showed free air in the abdomen. She was taken to surgery to repair a perforated colon, a known complication of a colonoscopy. To repair the colon, Ms. Gaes required a temporary colostomy. 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 . . . . “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 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). Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). The Appellees moved for summary judgment in this case when Ms. Gaes did not retain a medical expert to testify. They argued “[i]t is an accepted 3 principle that in most medical negligence cases, proof of causation requires the testimony of an expert witness because the nature of the inquiry is such that jurors are not competent to draw their own conclusions from the evidence without the aid of such expert testimony.” Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122, 124 (Ky. 1991). In other words, Ms. Gaes needed an expert witness to show her injury was caused by the Appellees’ medical negligence. Ms. Gaes argued that there are exceptions to the medical expert requirement. She cites to the case of Perkins v. Hausladen, 828 S.W.2d 652 (Ky. 1992), which stands for the proposition that the required expert testimony can come in the form of admissions by the defendant doctor or when the circumstance is such that the experience of laymen can recognize negligence. The lower court found the Appellees’ argument more persuasive and granted the motion for summary judgment. This appeal followed. We find that the lower court erred in granting summary judgment. First, there are genuine issues of material fact. Ms. Gaes does not argue that the perforated colon was the negligent act at issue here. She claims that she was not properly cared for post-op because she was never told she should get an abdominal x-ray to check for a perforated colon until three days after the surgery. The Appellees contend that Ms. Gaes was informed of the necessity of an x-ray on the first day she called. This is a question of fact for the jury. Further, assuming the jury believed that Ms. Gaes was not told to get an x-ray for three days, she could prove negligence using the reasoning of Perkins 4 v. Hausladen. During his deposition, Dr. Jones admitted that requiring an x-ray would be standard procedure for complaints after a colonoscopy. This would meet the expert testimony requirement via an admission from the defendant doctor. Also, a layman could recognize that a perforated colon would need to be repaired as soon as possible and that any delay could cause injury. The reasoning in Perkins is directly applicable for the case at hand. Viewing the record in favor of Ms. Gaes and applying Perkins, we do not find that it would be impossible for Ms. Gaes to prevail at trial. As such, we reverse the order granting summary judgment and remand this case for further proceedings. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEES: Martin H. Kinney, Jr. Louisville, Kentucky Katherine Kerns Vesely Donald K. Brown, Jr. Michael B. Dailey Louisville, Kentucky 5

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