CAROL CRABTREE v. HARDIN MEMORIAL HOSPITAL AND THOMAS R. TAYLOR, M.D.
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RENDERED:
December 11, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001149-MR
CAROL CRABTREE
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE T. STEVEN BLAND, JUDGE
ACTION NO. 95-CI-001236
v.
HARDIN MEMORIAL HOSPITAL AND
THOMAS R. TAYLOR, M.D.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, JOHNSON AND MILLER, JUDGES.
JOHNSON, JUDGE:
Carol Crabtree (Crabtree) pro se appeals from
the judgment of the Hardin Circuit Court entered on April 10,
1997, which summarily dismissed her medical malpractice claims
against Hardin Memorial Hospital (the hospital) and Thomas R.
Taylor, M.D. (Dr. Taylor) (collectively, the appellees).
affirm.
We
On September 7, 1994, while driving on Highway 313,
from Vine Grove to Radcliff, Crabtree applied the brakes of her
automobile to avoid hitting a deer.
Her car's engine stopped
running, causing Crabtree to lose control of the vehicle and
careen off the road.
Crabtree was taken by ambulance to Hardin
Memorial Hospital where she complained of pain in the left side
of her body and in her head.
She was admitted to the hospital
where she was treated by Dr. Taylor until her release on
September 10.
Because of her continuous complaints of head pain,
Dr. Taylor had Crabtree undergo a CT scan on September 9.
The
scan was read by Jeff Haynes, M.D. (Dr. Haynes), who reported to
Dr. Taylor that Crabtree had an old right parietal lobe infarct.
Before releasing her, Dr. Taylor informed Crabtree that she had
had a stroke some time in the past, but he could not determine
when the stroke occurred or its cause.
He referred her to a
neurologist for further investigation into the cause of the
stroke.
After her release from the hospital, Crabtree continued
to experience problems with the left side of her body.
Specifically, she had numbness on her left side and weakness in
both her left arm and leg.
Before her scheduled appointment with
the neurologist recommended by Dr. Taylor, she returned to the
emergency room of the hospital.
Further tests, including an MRI,
were ordered by Joseph Oropilla M.D. (Dr. Oropilla).
The MRI
report, prepared by Karen Williams, M.D., (Dr. Williams), stated:
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"There is abnormal signal in the high right posterior parietal
area, corresponding to the findings on the CT examination [of
September 9], and consistent with an old infarct."
The discharge
summary for the hospitalization indicated that Crabtree's
headaches were "most likely whiplash injury/tension type
headache[s]."
On August 7, 1995, Crabtree filed a pro se complaint in
the Hardin Circuit Court.
She alleged that while she was in the
hospital, she was not given her blood pressure medicine and
"suffered a stroke as a direct result of the negligence of Hardin
Memorial Hospital, its physicians, nursing staff, and other
staff, and Dr. Thomas A. [sic] Taylor."
She further alleged that
the negligence of the appellees "was a substantial factor in
causing her serious and permanent injuries, great pain of body
and mind, medical expenses to date and in the future, and
permanent impairment to her ability to labor and earn money.
. . . "
Over the next several months, the appellees made
several unsuccessful attempts to depose Crabtree and to discover
the identity of her expert witnesses.
Finally, after obtaining a
court order, the appellees took Crabtree's deposition on August
21, 1996.
In that deposition, Crabtree admitted that no doctor
had diagnosed her as having had a stroke during or after her
hospitalization in September 1994, and further that no doctor had
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expressed any criticism of the treatment she had received either
by the hospital or its staff, or by Dr. Taylor.1
Thereafter, the hospital and Dr. Taylor moved for
summary judgment based upon Crabtree's failure to identify an
1
The following exchanges between counsel for the hospital and
Crabtree are representative of her deposition testimony:
Q
Has anyone told you that -- I want to
make -- get this clear, because I thought I've
asked this before.
A.
Okay.
Q. No physician has reviewed your blood
pressure readings from the stay -A.
Not that I know of.
Q. --at Hardin Memorial Hospital, and told
you that you should have received blood
pressure medicine during that stay, have they?
A.
Not that I know of.
. . .
Q. Mrs. Crabtree, I just have a few more
questions for you. I'm just going to kind of
summarize your testimony a little bit. As I
see it, from your testimony, it doesn't appear
that any physician has told you that you have
suffered a stroke as a result of not receiving
your high blood pressure medicine while you
were a patient at Hardin Memorial Hospital; is
that correct?
A. No one has told me that, specifically,
but no one has told me otherwise, either. I
told you that earlier.
Q. So your testimony is that's correct,
but no one has told you otherwise, either?
[sic]
A.
Right.
-4-
expert witness to establish her claims that she had been injured
as a result of their negligent care.
The hospital's motion was
accompanied by the affidavit of Dr. Haynes who stated that the
infarct seen on the CT Scan that Crabtree underwent during her
stay at the hospital "occurred at least one month prior to
September 9, 1994[,] and could have occurred at any time from Ms.
Crabtree's date of birth on July 5, 1950[,] until August 9,
1994[,]" and, in his opinion, could not possibly have occurred
while Crabtree was in the hospital.
In response to these
motions, Crabtree stated that she was in possession of a report
from Dr. Haynes that contained a diagnosis of CVA2 and "not an
'old infarct'."
On November 11, 1996, the Hardin Circuit Court3 denied
the motions for summary judgment and stated as follows:
Of course, [Crabtree's] response is not
submitted in the proper form, i.e., it
is not in the form of an affidavit and
does not contain a copy of the alleged
report [of Dr. Haynes]. Nevertheless,
it is almost impossible to obtain a
summary judgment in Kentucky.
Steelvest, Inc. v. Scansteel Service
Center, Inc., Ky., 807 S.W.2d 476
(1991). If [Crabtree] has the evidence
which she claims, summary judgment is
inappropriate. If she does not, Rule 11
sanctions may be appropriate.
2
Cerebral vascular accident, or commonly, a stroke.
3
The Hardin Circuit Court Judge presiding at this time was the
Honorable William S. Cooper.
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The trial court also set the matter for trial on May 7, 1997, and
established a deadline for all the parties to identify their
expert witnesses.
At no time before or after the deadline did Crabtree
identify an expert witness.
In April 1997, a month before the
trial was to commence, both the hospital and Dr. Taylor renewed
their motions for summary judgment.
In its order from which
Crabtree has appealed, the Hardin Circuit Court4 granted the
renewed motions and stated as follows:
Although admittedly difficult to
obtain summary judgment, it is not
impossible, particularly in a medical
malpractice case where the burden of
proof imposed upon the Plaintiff is
quite specific. In a medical
malpractice case, negligence must be
established by expert testimony unless
negligence and injurious results are so
apparent that a layman with general
knowledge would have no difficulty
recognizing it. Morris v. Hoffman, Ky.
App., 551 SW2d 8 (1977); Baylis v.
Lourdes Hosp., Inc., Ky., 805 SW2d 122
(1991)[.] The allegations of negligence
made by the Plaintiff in this case do
not fall within the exceptions to the
expert testimony rule [emphasis
original].
The Plaintiff has had opportunity
after opportunity to produce an expert
witness. The Plaintiff did not identify
an expert witness during her deposition.
The Plaintiff did not identify an expert
witness in her answers to
interrogatories. The Plaintiff did not
identify an expert witness even after
4
At this time, the Honorable T. Steven Bland had become Judge
of the Hardin Circuit Court, Division One.
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two separate orders were entered by this
Court giving Plaintiff the opportunity
to do so. The Plaintiff insists that
the existing record is sufficient to
establish negligence on the part of the
Defendants. The Court has examined the
records referred to and can find no
document which supports Plaintiff's
claim. Specifically, the Plaintiff has
not produced the document which she
claimed she had at the September 17,
1996 hearing. Her claim that she had
such a document appears to have been the
only reason summary judgment was not
granted previously in this case.
Without the testimony of an expert
witness, it will be impossible for the
Plaintiff to prevail in this case.
Since the Plaintiff has no expert
witness, after being afford[ed] every
opportunity by the Court and the
Defendants to produce one, the
Defendants are entitled to summary
judgment.
In this appeal, Crabtree has reiterated her theory that
Dr. Taylor was negligent in failing to give her any medication
for her blood pressure for the three days she was hospitalized
after her automobile accident.
She also complains that he was
insensitive when he "blurted" out that she had had a stroke at
some time in the past.
She further faults the hospital for
bringing her a pain medication to which her records indicated she
was allergic.
Crabtree did not take the medicine, and thus,
admittedly, incurred no physical injury from this mistake.
However, she insists that the stroke she allegedly suffered while
in the hospital could possibly have been the result of a
combination of being deprived of her blood pressure medicine and
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from being "frightened so badly by nearly taking Darvon" and her
knowledge of her reaction to such medicine.
The essence of Crabtree's argument that the summary
judgment was inappropriate, is summed up in her brief as follows:
With all of the information that is
available today about strokes and the
risks of high blood pressure, I see no
reason why almost anyone couldn't be
able to see the negligence performed by
Dr. Taylor by his not resuming my blood
pressure medicine or by the hospital's
negligence in administering a drug that
was amply stated that I was allergic to.
One of the many problems with Crabtree's argument is that there
is no competent medical evidence that Crabtree suffered a stroke
at any time during or after her stay in the hospital.
injured her left side in the automobile accident.
She
She continued
to have numbness and weakness in her left side after she was
released from the hospital, symptoms that could possibly be
related to a stroke.
However, whether those symptoms were caused
by a stroke, or by the accident, or by some other event is not an
issue capable of resolution by a layman utilizing "general
knowledge" about strokes.
See Morris v. Hoffman, supra at 9.
The fallacy in Crabtree's argument that her injury and
the cause thereof are obvious can be gleaned from a medical
report filed in the record by Crabtree herself.
The report,
prepared by Hal M. Corwin, M.D. (Dr. Corwin), a neurologist who
examined Crabtree in January 1995, reveals several possible
causes for Crabtree's symptoms, including hysteria, multiple
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sclerosis, stress or anxiety.
The report also indicated that
before the author could be any more specific about the etiology
of Crabtree's complaints, several tests would have to be
performed which Crabtree would not authorize.
Clearly, whether
Crabtree suffered a stroke during her hospitalization and, if so,
whether it was caused by a deviation from the standard of care
owed her by the hospital and/or Dr. Taylor are questions that
cannot be answered in the affirmative without proof from an
expert witness.
Jarboe v. Harting, Ky., 397 S.W.2d 775, 778
(1965).
Crabtree also argues that she did supply the name of an
expert witness.
She states in her brief as follows:
I declared a physician [more than one
(1)] several times as an expert witness
and not once was this acknowledged. I
was never told why it didn't count. I
also submitted a hand written statement
from Dr. Ringel saying that prior [to]
this accident; [sic] I had no signs of a
CVA. I submitted my witness list in
writing and I declared an expert in
Court.
Other than the doctors and radiologists who were involved in
treating or testing Crabtree during her two hospitalizations
(none of whom she identifies as willing to testify in support of
her claims of negligence), the only doctor ever mentioned or
identified as a potential witness is David R. Ringel, M.D. (Dr.
Ringel), Crabtree's family physician since 1992.
She testified
that Dr. Ringel would testify that she had no symptoms of stroke
prior to the automobile accident.
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However,
according to
Crabtree's deposition testimony, she had never discussed the
propriety of the treatment that she received at the hospital or
the care provided by Dr. Taylor with Dr. Ringel and Dr. Ringel
had not expressed any opinion, much less a negative opinion,
about the standard of care provided by the appellees.5
In her reply brief, Crabtree states that "Dr. Corwin
did criticize the method in which Dr. Taylor 'blurted' out the
test results of the bran scan. . . ."
She also states that he
criticized "the fact that I wasn't returned to my blood pressure
medication following [Dr. Taylor's] ruling out the need for
surgery."
She further states that Dr. Corwin, who was never
5
During her deposition, Dr. Taylor's counsel asked Crabtree
about Dr. Ringel's opinion as follows:
Q. All right. But, getting back to the
original point, Dr. Ringel, although he may
have looked at some of these records, has
never said that the hospital did anything
wrong, or Dr. Taylor did anything wrong,
right?
A. He didn't say it, because -- I didn't
even bring it up. I didn't ask him.
Q. Have you ever told Dr. Ringel you have
a lawsuit pending?
A. I have told him that there is a lawsuit
pending, yes. But I have not actually
discussed -Q.
That it's--
A.
-- whether he thought it was right or
wrong. Because I know that doctors do have,
what's that, [H]ippocratic oath, or something
that they have, and it's like lawyers don't
talk about other lawyers, and I know this, so
I just never did bring it up.
-10-
named on her witness list, did not put these criticisms in
writing, but expressed them to her during an office visit.
Significantly, for purposes of determining the propriety of the
summary judgment, the written report authored by Dr. Corwin does
not support Crabtree's claims against the appellees.
In fact,
Dr. Corwin stated that he could not find any "objective evidence
of weakness."
Although he recognized that she might experience
"mild weakness," he opined this could be caused by several
possibilities none of which was a stroke, the failure of Dr.
Taylor to administer blood pressure medicine during her stay in
the hospital, or the fright occasioned by being offered medicine
to which she was allergic.
Thus, even if Crabtree contemplated
offering the testimony of Dr. Corwin at trial, the "criticisms"
she argues he mentioned to her would not allow a reasonable jury
to determine the existence of a causal link between her alleged
symptoms and the appellees' treatment of her during her stay in
the hospital.
Having reviewed the record, it is apparent that the
trial court did not err in dismissing Crabtree's complaint.
The
medical reports filed by Crabtree herself reveal that the
weakness she experiences on her left side of her body could have
numerous sources.
She has offered no evidence from which a jury
could determine that she suffered a stroke after September 7,
1996, much less that she suffered one due to any neglect in the
appellees' care or treatment of her.
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Accordingly, the judgment of the Hardin Circuit Court
is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE, HARDIN
MEMORIAL HOSPITAL:
Carol Crabtree, Pro Se
Guston, KY
Hon. Ken Howard
Elizabethtown, KY
Hon. John R. Grise
Hon. Laura M. Hagan
Bowling Green, KY
BRIEF FOR APPELLEE, THOMAS R.
TAYLOR, M.D.:
Hon. Paul A. Dzenitis
Lexington, KY
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