BAXTER (SECILY), ET AL. VS. FINE (JOSEPH G.)
Annotate this Case
Download PDF
RENDERED: JANUARY 15, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000541-MR
SECILY BAXTER, Individually; and
FRANCES BAXTER, as Administratrix and
Personal Representative for the Estate of
JOSHUA MIGUEL DEANGELO GARCIA BAXTER
v.
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA R. ISAAC, JUDGE
ACTION NO. 05-CI-02413
AHS SAMARITAN HOSPITAL, LLC
d/b/a SAMARITAN HOSPITAL; and
DR. JOSEPH G. FINE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CAPERTON, AND KELLER, JUDGES.
KELLER, JUDGE: Secily Baxter (Baxter) appeals the judgment of the Fayette
Circuit Court which dismissed her medical malpractice action against Joseph G.
Fine, M.D. (Dr. Fine), after the jury found that Dr. Fine was not negligent in failing
to remove a surgical sponge from Baxter’s abdomen following her appendectomy.
Specifically, Baxter contends that the trial court erred: (1) when it denied her
motions for summary judgment and directed verdict under the doctrine of
negligence per se or the doctrine of res ipsa loquitur; (2) when it failed to instruct
the jury on the doctrine of res ipsa loquitur; and (3) when it granted partial
summary judgment precluding the estate of Joshua Baxter (Joshua) from bringing a
cause of action for wrongful death pursuant to Kentucky Revised Statute (KRS)
411.130. For the reasons set forth below, we affirm.
FACTS
On January 3, 2003, Baxter delivered her first child at the University
of Kentucky Medical Center (UK Medical Center) by caesarean section. Twenty
sponges were used during this procedure. After the procedure, there was a
discrepancy in the instrument count. As a result, Baxter underwent an x-ray in the
immediate post-operative period which revealed no evidence of a foreign body.
On September 16, 2003, Baxter presented to the Emergency
Department of Samaritan Hospital (Samaritan) complaining of right lower
quadrant pain and vomiting. One day later, Thomas Greenlee, M.D., diagnosed
Baxter with an inflamed appendix, and on the following day, Baxter underwent an
open appendectomy at Samaritan. Dr. Fine performed the appendectomy.
This procedure involved a five to six-inch incision and required the
use of retractors and sponges to facilitate access to the appendix. After Dr. Fine
-2-
removed the appendix, a Samaritan circulating nurse and a Samaritan scrub tech
performed two counts to ensure that all of the sponges and instruments used during
the procedure were accounted for and that nothing was left inside Baxter. Both
counts reported that two sponges were used during the surgery and that two
sponges were removed. As a result, Dr. Fine closed the incision. Although both
sponge counts were reported as correct, discovery in this case later revealed that
the sponge discovered inside Baxter’s body was likely left during the
appendectomy performed by Dr. Fine.
On the morning following her appendectomy, Baxter was released
from Samaritan. On September 23, 2003, Dr. Fine prescribed Baxter further pain
medication after she contacted Dr. Fine’s office complaining of continuing pain.
On September 26, 2003, Baxter saw Dr. Fine in his office, where he removed
Baxter’s sutures and evaluated her post-operative condition. During this visit,
Baxter complained of a mass in the right side of her abdomen and Dr. Fine told
Baxter that she had developed a hematoma (blood clot) which would eventually go
away. At the end of Dr. Fine’s evaluation, Baxter and her mother received
instructions to return to Dr. Fine’s office if further problems developed. Baxter
never returned or contacted Dr. Fine’s office after this visit.
In December of 2003, Baxter became pregnant with her second child.
On March 31, 2004, Baxter was seen for a routine prenatal screening exam by a
home visit obstetric nurse. During this visit, the nurse noted a “blood clot size of
grapefruit [sic]” on Baxter’s abdomen. On April 14, 2004, Baxter arrived at the
-3-
UK Medical Center complaining of vaginal bleeding. A CT scan revealed that
Baxter had experienced a placental abruption. A physical examination also
revealed a palpable mass in the right quadrant of Baxter’s abdomen. On April 16,
2004, after her vaginal bleeding stopped and it was determined that there was no
evidence of fetal jeopardy, Baxter was discharged from the hospital with bed rest
precautions. On May 19, 2004, during a scheduled obstetric appointment at the
UK Medical Center, a physical examination and an ultrasound revealed an
abdominal mass in Baxter’s right side. As a result, Baxter underwent an
exploratory laparotomy surgery on May 25, 2004, which revealed the presence of a
sponge in her abdomen. The sponge was removed and Baxter was discharged on
May 28, 2004.
On June 2, 2004, Baxter presented to the UK Medical Center in preterm labor and delivered a 555 gram pre-term male infant, Joshua, consistent with
a 24-week gestation. Joshua was immediately placed on life support, and over the
next twelve days, Joshua’s condition deteriorated. On June 14, 2004, life support
intervention was discontinued and Joshua died.
Baxter (initially by way of her mother, Frances Baxter) filed suit in
the Fayette Circuit Court against Dr. Fine, Samaritan, and its nursing staff for
damages resulting from the retained surgical sponge. Baxter alleged that the
retained sponge caused her to experience pain and suffering, an additional medical
procedure, and that it caused her to deliver a premature infant. Also included in
the action was a wrongful death claim brought by the estate of Joshua. During the
-4-
pendency of the litigation, Baxter attained the age of majority and replaced Frances
Baxter as the real party in interest. Additionally, Baxter settled her claims against
Samaritan.
Prior to trial, Baxter moved for partial summary judgment against Dr.
Fine, arguing that he was negligent as a matter of law for leaving a sponge in her
during the appendectomy. The trial court denied Baxter’s motion for partial
summary judgment. However, the trial court granted Dr. Fine’s motion for partial
summary judgment dismissing the wrongful death claim brought by Joshua’s
estate.
Following the presentation of evidence by Baxter, Dr. Fine and Baxter
each moved for directed verdicts, which both were denied by the trial court. After
hearing the evidence, the jury returned a verdict in favor of Dr. Fine.
Consequently, the trial court entered a final judgment dismissing Baxter’s
complaint against Dr. Fine with prejudice. This appeal followed.
STANDARDS OF REVIEW
The issues raised by Baxter on appeal involve different standards of
review; therefore, we will set forth the appropriate standard as we analyze each
issue.
ANALYSIS
1. Partial Summary Judgment and Directed Verdict
On appeal, Baxter contends that the trial court erred in overruling her
motions for partial summary judgment and directed verdict against Dr. Fine for
-5-
negligence under either the doctrine of negligence per se or the doctrine of res ipsa
loquitur. Generally, summary judgment is only proper when “there were no issues
as to any material fact and that the moving party was entitled to a judgment as a
matter of law.” Pearson ex rel. Trent v. Nat’l Feeding Systems, Inc., 90 S.W.3d
46, 49 (Ky. 2002). Further, motions for directed verdict are appropriate if the
moving party can establish that based on the evidence presented at trial, reasonable
minds could not differ on the proper resolution of the case. Spivey v. Sheeler, 514
S.W.2d 667, 673 (Ky. 1974). However, both standards require the reviewing court
to construe the record in the light most favorable to the party opposing the motion.
See Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991);
Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 821 (Ky. 1992).
In the interim between Baxter and Dr. Fine submitting their briefs to
this Court, the Supreme Court of Kentucky in Nazar v. Branham, 291 S.W.3d 599
(Ky. 2009), overruled the doctrine of negligence per se and adopted the res ipsa
loquitur approach to retained foreign object cases. In adopting the res ipsa
loquitur approach, the Court held that under this standard, “juries should generally
be permitted to determine a healthcare professional’s liability in a retained foreign
object case.” Id. at 604. The Court further held that under the doctrine of res ipsa
loquitur, “juries may - but are not required to - infer negligence from the fact that a
surgical item was left in a patient’s body.” Id. at 603.
Because the Supreme Court in Nazar rejected the per se rule in
retained foreign object cases, the trial court was correct in refusing to hold Dr. Fine
-6-
negligent as a matter of law for failing to remove the sponge. Thus, the trial court
properly denied Baxter’s motions for partial summary judgment and directed
verdict under the doctrine of negligence per se.
Additionally, the trial court correctly denied Baxter’s motion for
partial summary judgment and her motion for directed verdict under the doctrine of
res ipsa loquitur. Dr. Fine presented adequate evidence both before and during the
trial which created fact issues sufficient to defeat Baxter’s motions. First, Baxter’s
prior caesarean section with an incorrect instrument count created an issue of fact
as to who was responsible for the retained sponge. Further, at the time Baxter
made her motion for partial summary judgment, only two of Baxter’s experts had
been deposed, discovery was not complete, and Dr. Fine still had approximately
five months until he had to disclose his experts. Although one of Baxter’s experts,
Dr. Robert Weiss, faulted Dr. Fine for not accounting for the sponge, Baxter’s
other expert, Dr. William Roberts, did not address Dr. Fine’s standard of care with
respect to the sponge count. Instead, Dr. Roberts only criticized Dr. Fine for
failing to evaluate Baxter more promptly after her discharge from Samaritan and
for the thoroughness of Dr. Fine’s post-operative examination of Baxter on
September 26, 2003.
At trial, Dr. Fine presented expert testimony that it was common
practice for doctors to rely on nurses to account for all sponges used during
surgery. Further, Dr. Fine presented expert testimony that it was the nursing staff’s
obligation to count the sponges. Even though the presence of the sponge in
-7-
Baxter’s abdomen constituted prima facie evidence of negligence, the expert
testimony created a question of fact regarding Dr. Fine’s liability for Baxter’s
injuries. Accordingly, the trial court did not err in denying Baxter’s motion for
partial summary judgment and her motion for directed verdict against Dr. Fine for
negligence.
2. Jury Instructions
Next, Baxter argues that the trial court erred by failing to give the jury
an instruction on the doctrine of res ipsa loquitur. “Alleged errors regarding jury
instructions are questions of law and must be examined using a de novo standard of
review.” Hamilton v. CSX Transp., Inc., 208 S.W.3d 272, 275 (Ky. App. 2006)
(citing Reece v. Dixie Warehouse and Cartage Co., 188 S.W.3d 440, 449 (Ky.
App. 2006)). The issue on appeal regarding an alleged erroneous jury instruction is
whether the instruction misstated the law. Olfice, Inc. v. Wilkey, 173 S.W.3d 226,
229 (Ky. 2005). The question is not which instructions best state the law. Id. at
230.
The res ipsa loquitur doctrine is an evidentiary doctrine which allows
a jury to infer negligence on the part of the defendant. Sadr v. Hager Beauty Sch.,
Inc., 723 S.W.2d 886, 887 (Ky. App. 1987). The doctrine, however, creates a
rebuttable presumption of negligence. Id. (citing Bowers v. Schenley Distillers,
Inc., 469 S.W.2d 565 (Ky. 1971)). On occasion, the rebuttable presumption may
-8-
be strong enough to require a directed verdict. Id. Instructions on res ipsa
loquitur, however, should not be submitted to a jury. As recognized by the
Supreme Court of Kentucky in Meyers, jury instructions should not explain
evidentiary matters, evidentiary presumptions, or contain unnecessary detail. 840
S.W.2d at 824. This principle applies here. Although Baxter could request the
application of the doctrine of res ipsa loquitur to avoid a directed verdict or to win
a directed verdict, the trial court was correct in refusing to give an instruction on
the same.
3. Wrongful Death Claim
Finally, Baxter contends that the trial court erred in granting partial
summary judgment precluding Joshua’s estate from bringing a wrongful death
action pursuant to KRS 411.130. We disagree.
KRS 411.130(1) provides that “[w]henever the death of a person
results from an injury inflicted by the negligence or wrongful act of another,
damages may be recovered for the death from the person who caused it . . . .”
(Emphasis added). In determining the meaning of the word “person” for purposes
of the wrongful death statute, the former Kentucky Court of Appeals held in
Mitchell v. Couch, 285 S.W.2d 901, 906 (Ky. 1955), that a wrongful death action is
possible only if the negligence has resulted in the death of a “viable fetus.” The
court further held that “viable fetus” means that “the child has reached such a state
of development that it can presently live outside the female body as well as within
it.” Id. at 905. Once the state of viability is reached, the unborn child becomes a
-9-
legal person with a separate existence. Orange v. State Farm Mut. Ins. Co., 443
S.W.2d 650, 652 (Ky. 1969). As stated in Mitchell, the reason “for holding that a
viable unborn child is an entity within the meaning of the general word ‘person’ is
because, biologically speaking, such a child is, in fact, a presently existing person,
a living human being.” 285 S.W.2d at 905.
After a careful review of the record, we conclude that the trial court
was correct in determining that there was not a genuine issue of material fact with
respect to the viability of Joshua. Although Joshua was placed on life support
equipment and survived as a result of such equipment for twelve days, the experts
for both Baxter1 and Dr. Fine concluded that Joshua was never viable and was not
capable of sustaining life apart from his mother. Because Joshua was not viable,
his estate could not bring a wrongful death action pursuant to KRS 411.130.
Accordingly, the trial court properly granted partial summary judgment dismissing
the wrongful death claim brought against Dr. Fine by Joshua’s estate.
Even if the trial court erred in granting partial summary judgment,
because of the jury verdict, Joshua’s estate could not have prevailed in the
wrongful death claim. The jury determined that Dr. Fine was not negligent, thus
absolving him from liability resulting from the retained sponge. It would be
inconsistent to determine that Dr. Fine was liable for damages resulting from the
retained sponge after determining that he was not negligent. Because the jury
1
Although three of Baxter’s experts were deposed, only one expert, Dr. William Roberts, gave
an opinion regarding the viability of Joshua.
-10-
determined Dr. Fine was not negligent, he could not have been liable for the death
of Joshua.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the Fayette
Circuit Court.
ACREE, JUDGE, CONCURS.
CAPERTON, JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
CAPERTON, JUDGE, DISSENTING: The issue at hand that
prompts my dissent is the propriety of a res ipsa loquitur instruction in medical
negligence cases. In the wake of Nazar v. Branham, 291 S.W.3d 599 (Ky. 2009),
overruling Laws v. Harter, 534 S.W.2d 449 (Ky. 1975), our case law on medical
negligence is open for reform. In giving consideration to such an instruction, I
believe that Nazar as well as the cases of other states are informative. In Nazar,
our Supreme Court stated
The res ipsa loquitur approach avoids this unfairness by
permitting juries to infer negligence from the fact of the
retained foreign object, while granting them the latitude
to analyze other facts and evidence relevant to liability.
As such, juries are free to analyze the reliability and
veracity of the defendant's expert witnesses and weigh it
against the likelihood that the surgeon was negligent in
failing to remove an object from the plaintiff's body
during surgery. The res ipsa loquitur standard simply
provides a more equitable method for resolving retained
foreign object cases. Nazar at 604.
The first sentence, in stating that the jury can infer negligence from
-11-
the fact of the retained object, should serve to illuminate our understanding of the
newly-adopted res ipsa loquitur doctrine. Absent a jury instruction advising the
jury of their ability to infer negligence from the fact of a retained object, how can a
jury be expected to fully understand the weight that can be attached to such
evidence? True, the arguments of counsel can illuminate the jury as to the facts,
but such are only arguments and do not instruct on the law. And, if the law is that
the jury can infer negligence from the fact of a retained object, why is it that they
are deprived of an instruction? No doubt some will argue that the doctrine of res
ipsa loquitur is an effective tool to thwart directed verdict and fend-off summary
judgment. If true, then why would our Supreme Court say that the jury can infer
anything at all, why not merely state that the purpose of the doctrine is only a
consideration for the trial court when presented with motions for directed verdict
and summary judgment?
Such an instruction merely allows the jury to understand that the facts
supporting res ipsa loquitur could support a finding of negligence but only in
conjunction, as stated in the second half of the sentence, with other facts and
evidence relevant to liability. Thus, the jury would give full consideration to all
the evidence but understand that the doctrine of res ipsa loquitur allows a finding
of negligence if they so decide.
In the second sentence of the above quote, our Supreme Court
specifically considered the “weighing” of the testimony of defendant’s expert
witnesses against a retained object in the body of a plaintiff. If the guidance given
-12-
was not to impose a res ipsa loquitur instruction is such cases, why address the
jury weighing such evidentiary matters?
Consider the recent decision of the Supreme Court of Missouri in
Sides v. St. Anthony’s Medical Center, 258 S.W.3d 811 (Mo. 2008), wherein the
Supreme Court of Missouri quoted the Virginia Law Review in stating “In the 43
years since the Second Restatement was promulgated, the commentators have
noted that, ‘the modern trend is to allow both a res ipsa loquitur instruction and
expert evidence in medical malpractice cases.’” Sides at 816, quoting Karyn K.
Ablin, Res Ipsa Loquitur and Expert Opinion Evidence in Medical Malpractice
Cases: Strange Bedfellows, 82 Va. L.Rev. 325, 327 (1996). One might read the
article to question the appropriateness of the application of the res ipsa loquitur
doctrine. Nevertheless, when the doctrine is adopted our courts must give
consideration as to how it is to be applied.
While the change in the law is complete, the changes it effects will
need to be determined. I would allow a res ipsa loquitur instruction under Nazar.
-13-
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEE:
H. Wayne Roberts
David N. Zorin
Lexington, Kentucky
James P. Grohmann
Andie Brent Camden
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLANT SECILY BAXTER:
ORAL ARGUMENT FOR
APPELLEE:
David N. Zorin
Lexington, Kentucky
James P. Grohmann
Louisville, Kentucky
-14-
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.