GLEN EVERETT BENTLEY, Administrator of the ESTATE OF INA KATHRYN BENTLEY v. HOSPITAL CORPORATION OF KENTUCKY
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RENDERED: April 2, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000064-MR
GLEN EVERETT BENTLEY, Administrator
of the ESTATE OF INA KATHRYN BENTLEY
APPELLANT
APPEAL FROM MASON CIRCUIT COURT
HONORABLE ROBERT I. GALLENSTEIN, JUDGE
ACTION NO. 96-CI-00132
v.
HOSPITAL CORPORATION OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; COMBS and DYCHE, Judges.
COMBS, JUDGE:
Glen Everett Bentley, as administrator of the
estate of Ina Kathryn Bentley, appeals from the judgment of the
Mason Circuit Court entered on November 7, 1997, which summarily
dismissed the plaintiff's claim for medical malpractice against
Hospital Corporation of Kentucky, d/b/a Meadowview Regional
Hospital.
We vacate and remand.
In May 1995, Ms. Bentley was admitted to Meadowview
Regional Hospital for a total replacement of the left knee to be
performed by Dr. Charlotte Harris, an orthopedic surgeon.
Dr.
Harris had been treating Bentley's severe degenerative arthritis
of the hips and knees for nearly a year preceding the May 1995
admission.
Bentley had recently undergone a total replacement of
the right hip and a total replacement of the right knee.
She had
been on crutches for 20 years; prior to surgery, she was nearly
confined to a wheelchair because of the pain and stiffness in her
joints.
Three days after the left total knee replacement surgery
was performed, Bentley advised Dr. Harris that her right knee was
swollen and painful.
Bentley advised Dr. Harris that a nurse had
twisted her knee while re-positioning her in bed.
X-rays
confirmed that Bentley had suffered a supracondylar femur
fracture just above the prosthesis.
with a knee immobilizer.
The fracture was treated
As a result of the fracture, Ms.
Bentley suffered a permanent shortening of her right leg.
In June 1996, Bentley filed her complaint, alleging
negligence on the part of the hospital and/or its employee(s)
with respect to her care.
Specifically, Bentley alleged that a
hospital employee, "while attempting to assist [her] back into
bed, grabbed her left leg and dropped it onto her right leg
causing the fracture."
In October 1997, after the deposition of
Dr. Harris was taken, the hospital moved for summary judgment.1
Dr. Harris was unable to state that Bentley had sustained the
fracture as a result of care that deviated from generally
accepted hospital practice.
At her deposition, Dr. Harris
testified as follows:
Q.
I have a letter here that you wrote to Mr.
Blackburn here on September 16th, 1996, wherein the
second paragraph, you describe Ms. Bentley's fracture
1
Ms. Bentley passed away on June 25, 1997.
1997, a motion was filed to revive the action.
-2-
On August 9,
as a pathologic type of fracture due to her
osteoporosis. . . .
A.
Yes.
fracture.
I did describe it as pathologic-type
Q.
And in the case of Ms. Bentley, can her
fracture that she sustained in her right femur be
described in your opinion as a pathologic-type
fracture?
A.
Yes.
Q.
And just as you stated a few moments ago, is
a pathological fracture like Ms. Bentley sustained one
that is attributable to an ongoing chronic process
moreso (sic) than a traumatic event?
A.
Yes.
Q.
So, the fracture that Ms. Bentley sustained
in this particular occurrence is one that you attribute
to her severe osteoporosis; is that correct?
A.
Yes.
* * * * *
Q.
Let me ask it a different way then. Dr.
Harris, you don't know one way or the other, based upon
medical probability or improbability or even medical
speculation whether or not the fracture on Ms.
Bentley's right femur of her leg was caused by any
inappropriate positioning on the part of any of the
personnel at Meadowview Regional Hospital, do you?
A.
No.
* * * * *
Q.
Isn't is just as likely that it occurred with
the exercise of reasonable care?
A.
Yes.
The hospital argued that without the supporting testimony of an
expert witness, Bentley could not get her claim against it to the
jury.
Moreover, the hospital argued that there was no other
evidence sufficient to create a question of fact regarding the
-3-
hospital's alleged violation of its duties and/or that such
violation caused Bentley to suffer the fracture.
The trial court
granted the hospital's motion for summary judgment.
This appeal
followed.
The issue before us is whether summary judgment was
appropriate in this case.
Kentucky courts follow a strict
standard for granting summary judgment.
In Steelvest, Inc. v.
Scansteel Serv. Center, Inc., Ky., 807 S.W.2d 476, 483 (1991),
the Kentucky Supreme Court stated:
We adhere to the principle that summary judgment is to
be cautiously applied and should not be used as a
substitute for trial. As declared in Paintsville
Hospital, it should only be used ‘to terminate
litigation when, as a matter of law, it appears that it
would be impossible for the respondent to produce
evidence at the trial warranting a judgment in his
favor and against the movant.’ It is vital that we not
sever litigants from their right of trial, if they do
in fact have valid issues to try, just for the sake of
efficiency and expediency.
In general, negligence in a medical malpractice case
must be established by expert testimony as explained in Bayliss
v. Lourdes Hosp. Inc., Ky., 805 S.W.2d 122 (1991):
It is an accepted 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.
Id. at 124 (footnote omitted).
The appellant submits that Dr.
Harris's deposition testimony sustains her position.
Based on
the contents of the deposition as cited above, we cannot agree.
However, in light of the unusual nature of Bentley's
injury, we are mindful of the doctrine of res ipsa loquitur —
which would excuse the need for an expert medical witness.
-4-
While
not cited by the appellant, Meiman v. Rehabilitation Center,
Inc., Ky., 828 S.W.2d 652 (1992), dealt with evidence indicating
that a patient's femur had been broken while a physical therapist
was attempting to outfit her with an artificial leg.
The court
held that expert medical testimony was not required in order to
establish negligence.
Restatement (Second of Torts) §328D (1965), provides as
follows:
(1) It may be inferred that harm suffered by
the plaintiff is caused by negligence of the
defendant when
(a) the event is of a kind which ordinarily
does not occur in the absence of negligence;
(b) other responsible causes, including the
conduct of the plaintiff and third persons,
are sufficiently eliminated by the evidence;
and
(c) the indicated negligence is within the
scope of the defendant's duty to the
plaintiff [Emphasis added].
This case is a close call as to the propriety of
summary judgment.
Although the appellee hospital appears to have
established a prima facie showing of nonliablity, we are not
convinced that it would have been impossible for the plaintiff to
present evidence at trial to create a genuine issue of fact.
As
mentioned earlier, Ms. Bentley passed away on June 25, 1997.
Despite her failing health, a deposition was not taken in order
to preserve her testimony.
However, two of her sons and her
husband are available to testify as to their direct observations
of her treatment in the hospital and as to her ordeal following
her alleged injury there.
The existence of these witnesses,
-5-
coupled with the highly unusual occurrence of the fracture
pursuant to the reasoning of Meiman, supra, renders it less than
impossible for the appellant to raise a genuine issue of fact for
a jury to determine.
Therefore, under the stringent test of Steelvest,
supra, we are compelled to vacate entry of summary judgment by
the Mason Circuit Court and remand this matter for a trial.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bruce E. Blackburn
Raceland, KY
Martin A. Arnett
Louisville, KY
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