CHARLES V. BEALL AND MARILYN C. BEALL v. T. W. SWERCZEK, D.V.M. AND K. B. POONACHE, D.V.M.
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RENDERED: AUGUST 20, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001526-MR
CHARLES V. BEALL AND
MARILYN C. BEALL
v.
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA OVERSTREET, JUDGE
ACTION NO. 94-CI-02470
T. W. SWERCZEK, D.V.M. AND
K. B. POONACHE, D.V.M.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
Charles V. and Marilyn C. Beall (the Bealls)
appeal from an order of the Fayette Circuit Court entered May 19,
1998, granting summary judgment on behalf of Thomas W. Swerczek,
D.V.M. and K. B. Poonache, D.V.M. (the Appellees).
We affirm.
The Bealls have been engaged in the equine industry for
over fifty years.
They train and breed thoroughbred horses on
their farm in Fayette County and elsewhere in central Kentucky.
In 1993, the Bealls noticed that one of their mares was
experiencing degenerating vision and partial blindness and
suspected that the mare was afflicted with leptospirosis.1
The
disease would eventually spread to eight horses, six of which
would experience either partial or total blindness.
The Bealls
contacted the Appellees after the first mare began experiencing
problems in order to obtain a diagnosis of the afflicted mare.
The Appellees are veterinarian pathologists employed as
professors by the University of Kentucky Livestock Diagnostic
Disease Center.
Although both are licensed veterinarians,
neither Appellee actively practices veterinary medicine.
The Appellees instructed the Bealls to obtain blood
samples from the horses in which leptospirosis was suspected and
to bring the blood samples to the Appellees for the purposes of
testing and analysis.
Diagnostic tests performed by the
Appellees on the blood samples brought to them by the Bealls
failed to confirm the presence of leptospirosis with any degree
of certainty.
The Appellees released the test results to the
Bealls sometime in July of 1993.
Prior to releasing the test
results, Dr. Swerczek visited the Bealls’ farm personally to
visually inspect the horses and the farm’s water supply.
During
that visit, Dr. Swerczek informed the Bealls that their horses
may be suffering from leptospirosis but that he could not draw a
definite conclusion at that time.
Further, he requested that the
Bealls donate any of the horses that suffered mortal injury as a
1
Leptospirosis is the common term for a condition caused by
Leptospira interrogans, a bacterial disease that affects a wide
range of domestic animals, including horses, and can result in
equine opthalmia (moon blindness) in adult horses. See K. B.
Poonache, D.V.M., Ph.D., Equine Leptospirosis, VET-29, University
of Kentucky College of Agriculture Extension Service, 1990.
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consequence of the progression of the disease to the University
of Kentucky for research.
In August of 1993, the Bealls retained Dr. James
Donahue (Dr. Donahue), a professor of microbiology at the
University of Kentucky, to treat their afflicted horses.
Dr.
Donahue performed another battery of blood tests and immediately
reported to the Bealls that, in his opinion, the horses were
afflicted with leptospirosis and that treatment should commence
forthwith.
On September 30,1993, the Bealls consulted with Dr.
James Smith, D.V.M. (Dr. Smith), a specialist in equine
opthalmology.
After another series of blood tests and physical
examinations, Dr. Smith concluded that the horses were most
likely infected with leptospirosis.
Thereafter, the Bealls
commenced a series of vaccinations for all twenty-eight horses.
The course of treatment suspended the transmission of the disease
and caused remission in the horses afflicted with partial
blindness.
The totally blind horses remained in that condition.
On August 16, 1994, the Bealls file a pro se complaint in
the Fayette Circuit Court against the Appellees.
On February 27,
1998, the parties attended a pre-trial conference in which the
Bealls agreed to certain stipulations on the record.
However, at
a later date, the Bealls refused to sign such stipulations.
On
March 27, 1998, the trial court granted the Appellees’ motion to
compel the Bealls to sign the previously agreed to stipulations.
The only stipulation relevant to this appeal, reads as follows:
It is further stipulated by the parties that
the attached blood work and pathology report
performed at the Livestock Diagnostic Disease
Center are accurate documents and the results
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of the testing performed at the Livestock
Diagnostic disease Center is accurate and was
performed in a reasonable standard of care of
a pathologist.
On March 31, 1998, based upon this stipulation, the Appellees
filed a motion for summary judgment.
On April 24, 1998, the
trial court held a hearing on the motion and on May 19, 1998, the
trial court granted summary judgment in favor of the Appellees.
Thereafter, the Bealls filed a motion to reconsider, which the
trial court denied.
This appeal followed.
A moving party is entitled to summary judgment only where
“the pleadings, depositions, answers to interrogatories,
stipulations, and admission on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.”
56.03.
Kentucky Rules of Civil Procedure (CR)
In the oft cited case Steelvest, Inc. v. Scansteel
Service Center, Inc., Ky., 807 S.W.2d 476, 480 (1991), the
Supreme Court of Kentucky stated:
[T]he proper function of summary judgment is
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.
...[A] judgment is only proper where the
movant shows that the adverse party could not
prevail under any circumstances....
...
[T]he rule [CR 56.03] is to be cautiously
applied. 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. Even
though a trial court may believe the party
opposing the motion may not succeed at trial,
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it should not render a summary judgment if
there is any issue of material fact.
In viewing the record in a light most favorable to the
Bealls, we believe that the trial court properly granted summary
judgment in favor of the Appellees.
on appeal.
The Bealls raise two issues
First, the Bealls argue that summary judgment was
inappropriate because the trial court did not consider their
claim that the Appellees were negligent not only for failure to
diagnose their horses’ condition, but also for failure to treat
the horses.
Second, the Bealls argue that summary judgment was
inappropriate because the trial court failed to consider their
allegations of conspiracy and fraud against the Appellees.
We think it is important to reiterate that the Bealls
filed a pro se complaint.
Moreover, they proceeded pro se
throughout the trial court proceedings.
The complaint itself
presents mere factual allegations instead of legal causes of
action.
However, pro se pleadings in general are not required to
meet the same legal standards as those prepared by legal counsel.
Beecham v. Commonwealth, Ky., 657 S.W.2d 234 (1983).
In order to
raise a legal claim, a complaint “need only give fair notice of a
cause of action and the relief sought.”
S.W.2d 626 (1968) (citations omitted).
Pike v. George, Ky., 343
In giving the Bealls the
benefit of the doubt, we liberally construe their complaint to
raise a legal claim for both medical malpractice and fraud.
However, it is clear to us from the record that the Bealls
abandoned their claim of fraud and intended to pursue only their
claim for medical malpractice at trial.
When asked to submit a
pre-trial memorandum to the trial court specifying their legal
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causes of action, the Bealls raised only the following question
of law:
1.
Standard of care.
The Defendants [Appellees] were expected
to exhibit a degree of skill and care of
veterinarian pathologists acting under
the same or similar circumstances.
Blair v. Eblen, Ky., 461 S.W.2d 371, 373
(1970).[sic] Plaintiff [Appellants]
contends that the Defendants failed or
refused to meet their duty.
Trial courts have discretion to direct party litigants to attend
pre-trial conferences in order to simplify the issues for
presentation at trial.
CR 16.1(a).
The party litigants are
bound by the issues raised at the pre-trial conference.
Massey, Ky., 358 S.W.2d 490 (1962).
Sapp v.
The Supreme Court stated in
Sapp:
One of the chief purposes of pre-trial
procedure, and the principal usefulness of a
pre-trial order, is to formulate the issues
to be litigated at trial. The parties are
bound by the pre-trial order. They may not
later inject an issue not raised at the pretrial conference. Otherwise the primary
objective of pre-trial procedure would be
defeated.
Id. at 492.
It is clear from the Bealls’ pre-trial memorandum
that the only issue they intended to pursue at trial was the
issue of medical malpractice.
The Bealls may not now on appeal
raise the abandoned issue of fraud.
With regard to the issue of medical malpractice, the
Bealls now claim that they intended to pursue claims against the
Appellees both for the diagnosis and treatment of their horses.
However, the record indicates that the Bealls only sought damages
from the Appellees for their alleged failure to properly diagnose
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their horses.
The Bealls’ pre-trial memorandum alleges that the
Appellees failed to meet their duty of care as veterinary
pathologists.
However, veterinary pathologists are not in the
business of treating animals. They attempt to discover the cause
of an animal’s condition through blood tests and physical
examinations. Treatment of animals, however, is left to
practicing veterinarians. Appellees did not hold themselves out
as practicing veterinarians.
Further, the Bealls stated
emphatically during the proceedings in this case that they had
not asked the Appellees to treat their animals.
Therefore, the
only issue before the trial court after the pre-trial conference
was whether the Appellees had met their duty to properly diagnose
the Bealls’ horses.
In cases of professional malpractice, the plaintiff
must show that the defendant failed to exhibit the degree of care
and skill reasonably expected of a similar trained professional
acting under the same or similar circumstances.
Ky., 461 S.W.2d 371 (1970).
Blair v. Eblen,
By the Bealls’ own admission, the
Appellees exercised the degree of skill reasonably expected of
veterinary pathologists in performing the blood work on their
horses.
The Bealls offered this stipulation in their own pre-
trial memorandum and agreed to this stipulation at the pre-trial
conference.
With no other issue before it, the trial court did
not abuse its discretion in granting summary judgment to the
Appellees.
For the foregoing reasons, the judgment of the Fayette
Circuit Court is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
David N. Zorin
Lexington, KY
Patrick J. Murphy
Garry R. Kaplan
Lexington, KY
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