LINDA SUSAN SMITH, EXECUTRIX OF THE ESTATE OF GARY S. SMITH, DECEASED; AND LINDA SUSAN SMITH, INDIVIDUALLY v. MILTON F. MILLER, M.D.; GALEN OF KENTUCKY, INC., D/B/A COLUMBIA SUBURBAN HOSPITAL, F/K/A HUMANA OF KENTUCKY, INC., D/B/A HUMANA HOSPITAL SUBURBAN; HUMANA, INC.; AND HUMANA HEALTH PLAN, INC.
Annotate this Case
Download PDF
RENDERED:
NOVEMBER 14, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000146-MR
LINDA SUSAN SMITH, EXECUTRIX OF
THE ESTATE OF GARY S. SMITH,
DECEASED; AND LINDA SUSAN SMITH,
INDIVIDUALLY
v.
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 90-CI-007050
MILTON F. MILLER, M.D.; GALEN OF
KENTUCKY, INC., D/B/A COLUMBIA
SUBURBAN HOSPITAL, F/K/A HUMANA OF
KENTUCKY, INC., D/B/A HUMANA HOSPITAL
SUBURBAN; HUMANA, INC.; AND HUMANA
HEALTH PLAN, INC.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, GUIDUGLI AND PAISLEY, JUDGES.
GUIDUGLI, JUDGE.
In this wrongful death/medical negligence
action, Linda Susan Smith, Executrix of the Estate of Gary S.
Smith, Deceased, and Linda Susan Smith, Individually,
(hereinafter, collectively, “Smith”) have appealed from multiple
pre-trial rulings and post-trial orders of the Jefferson Circuit
Court.
The circuit court granted a summary judgment to Galen of
Kentucky, Inc., d/b/a Columbia Suburban Hospital, f/k/a Humana
of Kentucky, Inc., d/b/a Humana Hospital Suburban (hereinafter
“Suburban”) on December 19, 2000, and directed a verdict in
favor of Humana, Inc., and Humana Health Plan, Inc.,
(hereinafter, collectively, “Humana”) at the close of the trial.
The circuit court then entered a judgment in favor of Milton
Miller, M.D. (hereinafter “Dr. Miller”) after the jury returned
a verdict in his favor and awarded no damages.
Having reviewed
the extensive record, the parties’ briefs, and the applicable
case law, we affirm.
The facts underlying this action are not essentially
in dispute, although this case has an overwhelmingly complex
procedural history, encompassing twenty-five volumes of record,
four videotapes of various court hearings as well as the
videotapes of a multi-day trial, which must be addressed for a
complete understanding of the matter.
Gary Smith, a Jefferson
County police officer, began a doctor-patient relationship with
Dr. Miller, an internist, in 1973, and in 1982 was diagnosed
with hepatitis.
Dr. Miller began a course of treatment for the
hepatitis, including the use of the steroid Prednisone, an
accepted treatment for hepatitis in the 1970s and 1980s.
In
1988, Humana began providing health care coverage of Jefferson
-2-
County employees, including Gary Smith.
In late 1988, Gary
Smith experienced a flare-up of his hepatitis, and wanted a
liver evaluation performed at the Mayo Clinic.
Dr. Miller’s
office contacted Humana regarding this request, which was denied
because facilities performing liver evaluations were located in
Louisville.
On July 1, 1989, Gary Smith was admitted to
Suburban due to liver problems and was discharged on July 5,
1989.
Dr. Miller referred Gary Smith to gastroenterologist Dr.
Samuel H. Cheng and to hepatologist Dr. Carlo Tamburo.
In late
July, Dr. Miller’s office contacted Humana regarding the
possibility of a liver transplant.
Although Humana indicated
that Gary Smith’s insurance probably would not cover a
transplant, additional information was requested.
Not until
August 16, 1989, did Gary Smith request coverage for a liver
transplant from Humana.
Although Humana initially planned to
deny coverage because his policy did not provide for this type
of transplant, Humana nevertheless administratively approved
coverage for the liver transplant on August 21, 1989.
Gary
Smith was then transferred to the Medical College of Virginia
for the liver transplant.
Tragically, Gary Smith died on August
29, 1989, before a transplant could be performed.
One year later, on August 28, 1990, Smith, through her
attorney, H. Joseph Marshall, filed a 58-page Verified Complaint
in Jefferson Circuit Court, naming Dr. Miller, Humana, Suburban,
-3-
Caretenders, Inc., and unknown defendants as the defendants and
alleging several causes of action.
She later filed First and
Second Amended Complaints, and included claims against Humana of
Virginia, Inc., d/b/a Humana Hospital University of Louisville
(hereinafter “University Hospital”).
Judge Rebecca Westerfield,
the first judge assigned to this case, ordered the first two
complaints as well as several paragraphs in the third complaint
stricken as they were too long and confusing.
Discovery began,
and several defendants moved for summary judgments, all of which
were denied.
By this time, Judge Thomas Wine was the presiding
trial judge.
Several trial dates were scheduled, and then
continued, for various reasons.
Over the course of several
years, the rancor between the attorneys representing Smith and
those representing the various defendants became apparent in the
motions filed and during court appearances.
In June 1996, Smith
had apparently terminated her attorney-client relationship with
co-counsel, Alan Leibson, whom the trial court allowed to
withdraw several months later.
Both Caretenders and University
Hospital were voluntarily dismissed in mid-1996.
The matter was
scheduled to go to trial in 1995, and then in 1996.
The
December 4, 1996, trial date was eventually continued to May 6,
1997.
As the May trial date grew closer, Smith continued to
attempt to propound discovery from the defendants, and issued
-4-
several deposition/subpoena notices.
In April 1997, attorneys
Tim McCall and Brian Clare entered the case as co-counsel for
Smith.
However, the trial court entered an order on May 1,
1997, disqualifying McCall, and subsequently Clare, on
Suburban’s motion.
At the hearing that day, attorney Marshall
first indicated that they had all of the evidence, but later
stated that discovery was not complete as they had not received
anything.
Attorney Marshall also indicated to the trial court
that he had no other attorneys in his office and that the case
was too much for one attorney to handle.
On May 5, 1997, the
day before the trial was to begin, attorney William McMurray
entered an appearance as co-counsel for Smith, and moved the
court to continue the trial for four weeks.
He stated that
attorney Marshall was physically unable to perform his duties
and responsibilities as trial counsel and that he needed four
weeks to review the large case file and to prepare for the
complex trial.
The trial court denied the motion to continue,
noting that the information regarding attorney Marshall’s health
condition had been available to him for some time, and that he
was only attempting to delay the trial.
Smith petitioned this
Court for a writ of prohibition and for intermediate relief, but
she was denied any relief.
On May 6, 1997, the day of trial, Smith, through
attorney McMurray, renewed her motion to continue the trial.
-5-
Through a bench ruling that day and in a written order entered
the following day, the trial court denied the renewed motion to
continue and then dismissed the case because Smith was not
prepared to go to trial.
In the written order, the trial court
found that attorney Marshall was admitted into the hospital only
after his motion to continue was denied and that this was for
the dilatory purpose of delaying the proceedings.
The trial
court also found that Smith had condoned and acquiesced in these
dilatory practices.
In an opinion rendered April 23, 1999, and
made final January 6, 2000,1 a three-judge panel of this Court,
with Judge Guidugli as the presiding judge, held that the trial
court abused its discretion in denying the motion to continue
and therefore reversed and remanded the matter for further
proceedings.
The Supreme Court of Kentucky denied discretionary
review on December 9, 1999.
Upon remand, Smith filed a motion to recuse the trial
judge, which was denied, and the Supreme Court agreed that there
was not a sufficient basis to justify disqualification.
However, on August 23, 2000, Judge Wine entered a sua sponte
order voluntarily recusing himself and the case was randomly
reassigned to Judge Geoffrey Morris in the Thirteenth Division.
On September 1, 2000, the trial court entered an order
scheduling a jury trial for August 21, 2001.
1
Appeal No. 1998-CA-000410-MR.
-6-
On August 18, 2000, Suburban renewed its motion for
summary judgment.
On September 7, 2000, Smith filed a motion to
stay Suburban’s motion pending discovery.2
responded to this motion.
Smith eventually
On December 19, 2000, the trial court
entered a Memorandum and Order granting Suburban’s motion for
summary judgment as follows:
This action comes before the Court on a
Renewed Motion for Summary Judgment brought
by defendant [Suburban]. The plaintiffs
have filed a Response to which Suburban has
filed a Reply.
After a careful perusal of the
memoranda submitted by the parties, the
exhibits attached thereto and the applicable
case and statutory law of this Commonwealth,
this Court will grant the Motion for Summary
Judgment brought by defendant [Suburban].
BACKGROUND INFORMATION
The decedent, Gary Smith, was a
Jefferson County employee who was insured by
Humana Insurance Plans and contracted
hepatitis. As a result, Mr. Smith had
chronic liver problems resulting in his
death in August of 1989. Mr. Smith’s
surviving spouse, the plaintiff herein, has
brought this action to recover damages for
his death. Ms. Smith contends that the
actions of the defendants, either in whole
or separately, caused her husband’s death as
he did not receive a liver transplant, the
only effective cure for his condition.
Suburban has brought a Motion for
Summary Judgment contending that nothing it
2
Attorney Marshall filed an amended motion to stay on September 11, 2000,
which began the course of events leading to the imposition of Rule 11
sanctions against him. We have addressed the issue of Rule 11 sanctions in a
separate opinion rendered this day in appeal No. 2002-CA-001146-MR.
-7-
did contributed to Mr. Smith’s condition or
his death.
MEMORANDUM
In Kentucky, a movant should not
succeed on a summary judgment motion unless
it appears impossible for the nonmoving
party to produce evidence warranting a
judgment in his favor. Steelvest, Inc. v.
Scansteel Service Center, Ky., 807 S.W.2d
476 (1991). The term “impossible” is used
in a practical sense and not in an absolute
sense. Perkins v. Hausladen, Ky., 828
S.W.2d 652 (1992).
With this standard in mind, this Court
will examine the arguments set forth by the
parties. While Suburban has made a renewed
Motion for Summary Judgment and the
plaintiff has filed a Response to that
renewed motion, this Court will return to
the original memoranda filed by the parties
wherein the issues upon which a decision
must be made were more clearly set forth.
The Response filed by the plaintiff to the
renewed motion brought forth too many
extraneous issues which are not properly
before the Court. Consequently the Court
will neither mention nor in any way rule on
those extraneous issues.
Suburban asserts that, after treatment
for over seven years for chronic liver
disease, beginning in February of 1982, Mr.
Smith was admitted to Suburban Hospital for
five days in the beginning of July, 1989 for
tests which were actually and accurately
performed and then discharged at the
direction of his primary care physician.
The plaintiffs, however, contend that
Suburban violated its standard of care.
The plaintiffs contend that Suburban
was negligent in failing to maintain
adequate standards for review. They argue
that, as a result, Gary Smith was
-8-
prematurely discharged with 18 blood
chemistries out of normal boundaries.
Consequently, they contend that another
physician did not review the case for a
routine hepatic consult, and the possibility
of an earlier liver transplant did not
occur, resulting in his death. In their
Trial Memorandum, the plaintiffs also cite
to the following accusations against
Suburban:
i)
Failed to utilize peer review on
failure to complete discharge
summary which would have conveyed
seriousness of condition, and
would have led to hepatic consult,
earlier transplant;
ii)
Inadequate review of the charts
for determination of whether
treatment was proper as it
occurred, which would have
disclosed the need for hepatic
consult and an earlier transplant;
iii) If Gary Smith had been sent for a
transplant at this time, he would
have had a 90 – 95% survival rate
on his transplant, but for the
failures of the hospital in its
reviewing function.
iv)
Discharged with 18 blood
chemistries out of line, with no
discharge plan, again a failure of
the reviewing function, because
this would have disclosed the need
for hepatic consult and an earlier
transplant.
v)
Failure to notify Gary Smith
independently of his prognosis and
current condition. Misinformed
him and his family after discharge
as to his condition, in an attempt
to get him to delay further
getting the transplant. Had he
-9-
been informed earlier, he could
have mustered the available
resources for an earlier
transplant.
As set forth in Suburban’s memorandum,
the plaintiffs must show causation. In
other words, the plaintiffs must prove the
alleged deviation from the standard of care
by Suburban’s employees contributed to Mr.
Smith’s death. Actionable negligence
requires a legal duty on the part of the
defendant, a breach thereof, and consequent
injury. The absence of any one of these
elements is fatal to the claim. Mullins v.
Commonwealth Life Insurance Company, Ky.,
839 S.W.2d 245 (1992). “In any negligence
claim, it is necessary to show that the
defendant failed to discharge a legal duty
or conform his conduct to the standard
required.” Mitchell v. Hadl, Ky., 816
S.W.2d 183 (1991).
Dr. Thomas Noble, an expert retained by
the Plaintiff, testified in his deposition
as follows:
Q. Similarly, there’s another hospital
sued called Humana Hospital Suburban,
now called Suburban Medical Center.
You do not have any opinions that are
critical of the hospital care that
was rendered at that hospital, do
you, Doctor Noble?
A. There was one issue in terms of his
July 1st and 5th admission [sic] to
that hospital where his liver
function tests were so dramatically
elevated and he was discharged.
I think one has to ask, and I will
look at the chart to see if this is
clarified, why he was sent home with
his liver still as in such terrible
shape.
-10-
Admittedly that’s a doctor’s
decision. On the other hand, quality
assurance mechanisms are in place
that no physician can get, as I know
from the bylaws at work, can get
privileges at a hospital without
signing a statement that says he will
abide by the bylaws, which usually
require hospitals to monitor the
performance of physicians.
And that’s a kind of theoretical and
somewhat unusual position perhaps,
but I do think hospitals have some
responsibility to physicians that
practice there in terms of assuring
that they are getting timely
consultation and doing what they need
to do to take care of the patients
appropriately.
Q. Doctor, as we sit here today, are you
expressing any opinion that is in any
way critical of the hospital care
that Gary Smith received at Suburban
Hospital in Louisville?
A. My criticism is. . . .
***
A. . . . that he was sent home with
dramatically elevated liver function
tests, and that, at least in this
day and age, that would have raised
eyebrows or would have raised
questions with the quality
assurance. Quality assurance
managers would have been on the case
and would have raised questions with
the physician eventually, if there
was no response, with the
administration.
And there are cases where the
patient’s care has been removed from
a physician, too, and another
-11-
physician appointed when there is
not adequate care being rendered by
the physician.
Now, this has nothing to do with
nursing and lab and all of those
things. This has to do with a much
more basic issue of what
responsibility hospitals have for
physicians that practice there. And
they do, they do have a
responsibility.
(Deposition of Thomas Noble, M.D., page 81,
line 10 through page 83, line 18. Emphasis
added.)
Suburban contends that, even assuming
arguendo that the above testimony suggests
that it breached its standard of care, the
plaintiffs must still show that such breach
substantially caused the injuries for which
they seek recovery. Dr. Noble clearly sets
forth that the only aid Suburban could
render to Mr. Smith was to review the care
his physician had given him while he was in
the hospital. This could not possibly have
been prior to Mr. Smith’s dismissal. The
situation Dr. Noble refers to, the hospital
privileges of a physician, would have to be
reviewed in a thorough manner. It could not
have been done in a manner which would have
contributed to Mr. Smith’s chances of
survival.
The duty of care for a patient is
obviously shared by both the patient’s
personal physician and the employees of any
hospital he may be treated in, however, in
the present action there is no indication by
the plaintiff that any of the employees of
Suburban contributed in any way to Mr.
Smith’s illness or subsequent death. There
is also no indication that, due to past
actions, Dr. Miller’s hospital privileges
should have been suspended or under strict
review by Suburban. As a result, this Court
-12-
will grant Suburban’s Motion for Summary
Judgment.
ORDER
WHEREFORE IT IS HEREBY ORDERED AND
ADJUDGED that the Motion for Summary
Judgment brought by defendant [Suburban] be
and hereby is GRANTED.
At the October 30, 2000, pre-trial hearing, the trial
court made the statement that the case was ready for trial back
in 1997, although counsel for Smith indicated that he was still
unable to get discovery.
On February 13, 2001, the trial court
ordered the parties to exchange lists of witnesses to be called
at trial by June 10, 2001, and lists of exhibits to be used at
trial by August 10, 2001.
By an order entered April 20, 2001,
the trial court ordered the parties to name their experts by
June 1, 2001, which was later amended to allow the defendants
until July 1, 2001, to name their expert witnesses.
During the
course of these events upon remand, Smith served additional
requests for admissions on both Dr. Miller and Humana, and again
moved, unsuccessfully, for permission to take another deposition
of Humana CEO David Jones.
Attorneys Joel Frockt and Irvin Maze
were permitted to enter appearances as additional counsel in
March 2001.
On May 24, 2001, Smith moved the trial court to remand
the August 21, 2001, trial date to allow discovery to be
completed.
The trial court denied this motion on June 1, 2001,
-13-
stating that the trial date was set in the fall of 2000 and that
there had been ample time for any further discovery.
Smith
again moved to remand the trial date on June 20, 2001, citing
the defendants’ failure to answer interrogatories or to produce
the written transplant policy.
The trial court held a hearing
on June 21, 2001, at which time Humana objected to Smith’s
naming of a new expert witness, Linda Peeno, after the June 1
deadline.
The trial court excluded her because she was named
after the cut-off date when there had been sufficient time for
Smith to obtain additional witnesses and because there was a
showing of prejudice in that a new expert was named only fortyfive days prior to the trial.
This ruling was memorialized by
an order entered June 26, 2001.
The trial court held another
hearing on July 23, 2001, and heard arguments relating to
Smith’s next motion to remand the trial date.
The defendants
objected, and Humana contended that Smith had been permitted to
conduct necessary discovery.
Dr. Miller indicated that he had
provided both insurance policies and that for a substantial
length of time after the remand, Smith had done nothing to move
the case along.
The motion to remand was then denied by order
entered July 25, 2001.
The matter proceeded to trial on August 21, 2001.
Smith, again, moved the trial court to remand or reassign the
trial date and reopen discovery.
The trial court denied the
-14-
motion, and the trial commenced.
At the close of Smith’s case,
both Humana and Dr. Miller moved the trial court for directed
verdicts.
As to Dr. Miller, the trial court at first denied the
motion as to all claims, but later granted directed verdicts to
him on all of the non-medical negligence claims and as to
Smith’s punitive damages claim.
verdicts have been appealed.
Neither of these directed
Humana then argued that there was
no evidence of a breach of contract in that although the policy
did not cover Gary Smith’s transplant, the transplant was
approved when requested.
The trial court denied the motion in
order to give Smith her full day in court, noting that it would
be revisited later in the trial.
After the completion of Dr.
Miller’s presentation of evidence, Humana chose not to call any
witnesses as they had all been called previously by Smith.
The
trial court again denied Smith’s motion to call Dr. Peeno as a
rebuttal witness as there were no witnesses called by Humana to
rebut.
At the close of the trial, Dr. Miller’s renewed motion
for a directed verdict was again denied, although the trial
court indicated that the motion was well taken.
However, the
trial court directed a verdict in favor of Humana, stating that
there was insufficient evidence to allow the case to go to the
jury.
Smith then moved the trial court for a mistrial and to
recuse itself, alleging that the trial court had prejudged the
-15-
case based upon its prior rulings and based upon its drafting of
jury instructions before arguments had taken place.
The matter
proceeded to the jury, which returned with a unanimous verdict
in favor of Dr. Miller.
September 17, 2001.
The final judgment was entered
Smith filed a timely CR 59 motion to
vacate, arguing that she did not have sufficient time to
complete discovery, that the trial court erred in granting
Suburban’s motion for summary judgment and in granting a
directed verdict in favor of Humana, that Dr. Peeno should have
been permitted to testify, that Humana “sandbagged” her by not
calling any witnesses, and that the trial court should have
recused itself based upon the cumulative effect of its rulings
to Smith’s detriment.
The trial court denied the motion on
December 21, 2001, and this appeal followed.
Prior to addressing the merits of this appeal, we must
address the issue of the defect in Smith’s notice of appeal,
which was the basis of this Court’s show cause order entered
August 25, 2003.
On January 10, 2002, Smith filed a notice of
appeal, specifically listing eleven separate rulings of the
trial court as the basis of her appeal:
Notice is given that Linda Susan Smith,
Executrix of the Estate of Gary S. Smith,
Deceased, and Linda Susan Smith,
Individually, hereby appeal to the Court of
Appeals of the Commonwealth of Kentucky from
the Memorandum and Order entered by this
Court on December 19, 2000, from the
-16-
Memorandum and Order entered by this court
on February 13, 2001, from the Order entered
by this Court on February 22, 2001, from the
Order entered by this Court on April 5,
2001, from the Order entered by this Court
on April 20, 2001, from the Memorandum and
Order entered by this Court on June 1, 2001,
from the Order entered by this Court on June
26, 2001, from the Order entered by this
Court on July 10, 2001, from the Opinion and
Order entered by this Court on July 25,
2001, from the Findings of Fact, Conclusions
and Order entered by this Court on August
14, 2001 and from the Order denying Motion
to Vacate pursuant to CR 59 entered by this
Court on December 21, 2001.
The names of the Appellees against whom
this Appeal is taken are Milton F. Miller,
M.D., Galen of Kentucky, Inc., d/b/a
Columbia Hospital, f/k/a Humana of Kentucky,
Inc., d/b/a Humana Hospital Suburban,
Humana, Inc., and Humana Health Plan, Inc.
The names of the Appellants are Linda Susan
Smith, Executrix of the Estate of Gary S.
Smith, Deceased, and Linda Susan Smith,
Individually.
The first ten rulings are interlocutory in nature, and most deal
with discovery issues, while some deal with the Rule 11
sanctions matter, and one is a summary judgment in favor of
Suburban.
The last order listed is from the order denying
Smith’s Motion to Vacate pursuant to CR 59.
Nowhere in this
list of eleven circuit court rulings did Smith include the
actual trial judgment entered September 17, 2001.
That order
provides:
This matter came before the Court for a
trial by jury beginning August 21, 2001. At
the close of all of the evidence, the Court
-17-
granted motions for directed verdict in
favor of defendants Humana, Inc., and Humana
Health Plans, Inc.
The case against defendant Milton
Miller, M.D. was submitted to the jury.
Following deliberations, the jury returned a
unanimous verdict in favor of Dr. Miller.
Accordingly, the Court enters judgment
in favor of defendants, and this action is
dismissed with prejudice at the plaintiffs’
cost.
This is a final order, the Court having
determined that there is no just cause for
delay.
Pursuant to CR 73.03(1), “[t]he notice of appeal shall
specify by name all appellants and all appellees . . . and shall
identify the judgment, order or part thereof appealed from.”
Pursuant to CR 54.01, “[a] judgment is a written order of a
court adjudicating a claim or claims in an action or proceeding.
A final or appealable judgment is a final order adjudicating all
the rights of the parties in an action or proceeding.”
Therefore, an appellant must identify the final and appealable
judgment in a notice of appeal.
In 1985, CR 73.02(2) was amended to establish a
standard of substantial compliance, and reads as follows:
(2) The failure of a party to file timely a
notice of appeal, cross-appeal, or motion
for discretionary review shall result in a
dismissal or denial. Failure to comply with
other rules relating to appeals or motions
for discretionary review does not affect the
validity of the appeal or motion, but is
-18-
ground for such action as the appellate
court deems appropriate, which may include:
(a)
A dismissal of the appeal or denial of
the motion for discretionary review,
(b)
Striking of pleadings, briefs, record
or portions thereof,
(c)
Imposition of fines on counsel for
failing to comply with these rules of
not more than $500, and
(d)
Such further remedies as are specified
in any applicable Rule.
While the rules relating to the filing of notice of appeal were
once enforced under a standard of strict compliance, the Supreme
Court of Kentucky in Ready v. Jamison, Ky., 705 S.W.2d 479
(1986), announced a standard of substantial compliance found in
CR 73.03(2) for defects other than timeliness of the notice of
appeal.
In Ready, the Supreme Court reviewed three separate
appeals in which the appellants failed to properly designate the
final judgment as required in CR 73.03.
In each case, the
notice of appeal stated that the appeal was being taken from a
post-judgment motion rather than from the final judgment.
Supreme Court held that:
Dismissal is not an appropriate remedy for
this type of defect so long as the judgment
appealed from can be ascertained within
reasonable certainty from a complete review
of the record on appeal and no substantial
harm or prejudice has resulted to the
opponent. While our court continues to have
a compelling interest in maintaining an
orderly appellate process, the penalty for
-19-
The
breach of a rule should have a reasonable
relationship to the harm caused. Likewise
the sanction imposed should bear some
reasonable relationship to the seriousness
of the defect.
Id. at 481-82.
The Supreme Court went on to state that with the
new policy of substantial compliance, it was seeking to
“achiev[e] an orderly appellate process, decid[e] cases on the
merits, and see[] to it that litigants do not needlessly suffer
the loss of their constitutional right to appeal.”
Id. at 482.
Later, in City of Devondale v. Stallings, Ky., 795 S.W.2d 954
(1990), the Supreme Court of Kentucky declined to extend Ready’s
policy of substantial compliance to the failure to name an
indispensable party because the action was jurisdictional in
nature, unlike the situation in Ready.
In the present matter, although we would like to hold
that Smith’s failure to include the September 17, 2001, final
judgment on her notice of appeal is fatal and requires a
dismissal, we shall not do so because Smith did list the order
denying her post-judgment CR 59 motion, as was the case in
Ready.
Therefore, we find that Smith has shown sufficient cause
not to dismiss the appeal and we shall review this matter on the
merits.
In the introduction to her brief, Smith states, “[a]t
the heart of this Appeal is the Appellants’ failure to obtain
meaningful discovery and the Court’s failure to grant the
-20-
Appellants a continuance of the trial to complete discovery.”
Accordingly, Smith argues that she was denied a reasonable
opportunity to obtain discovery and that the trial court erred
in denying her motion to continue the trial.
Furthermore, Smith
argues that the trial court erred in granting Suburban’s motion
for summary judgment, in granting Humana a directed verdict, and
in denying her motion for disqualification and for a mistrial.
On the other hand, Humana argues that the trial court
properly granted its motion for directed verdict because Smith
did not introduce sufficient evidence to sustain a verdict in
her favor and that the trial court did not abuse its discretion
in its rulings on discovery and evidentiary matters.
Suburban,
in turn, argues that the trial court’s ruling on its motion for
summary judgment was not premature and that Smith did not
present sufficient evidence to establish that Suburban breached
its duty or that any alleged deviations from the standard of
care caused Gary Smith’s death.
Lastly, Dr. Miller argues that
no testimony related to his contract with Humana was excluded as
the trial court permitted Smith to ask all of the questions she
chose to ask, and that Smith failed to identify any discovery
delay relating to him.
I. DISCOVERY, PRE-TRIAL AND TRIAL RULINGS
In her brief, Smith has raised several arguments
regarding various rulings of the trial court regarding discovery
-21-
matters, continuances, and recusal.
In particular, Smith argues
that due to adverse rulings regarding discovery, she was not
permitted to establish the core theory of her case.
She
collectively blames the defendants below for delays in obtaining
and for obstructing discovery.
She also argues that she was
denied a reasonable opportunity to engage in discovery, citing
her inability to take, or complete, depositions of Humana CEO
David Jones and corporate representative Richard Remmers, the
trial court’s exclusion of Dr. Linda Peeno as a witness,
Humana’s failure to timely produce written organ transplant
policies and procedures, and the trial court’s exclusion of Dr.
Miller’s testimony regarding his contractual relationship with
Humana.
Additionally, Smith asserts that the trial court erred
in denying her motion to remand the trial date due to a failure
to obtain discovery and in denying her motion for a mistrial and
for recusal.
The appellees have all argued that the trial court
did not abuse its discretion in making its various rulings.
Our standard of review in matters involving a trial
court’s rulings on evidentiary issues and discovery disputes is
abuse of discretion.
Sexton v. Bates, Ky.App., 41 S.W.3d 452,
(2001); Goodyear Tire and Rubber Co. v. Thompson, Ky., 11 S.W.2d
575 (2001).
“The test for abuse of discretion is whether the
trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by legal principles.”
-22-
Id. at 581.
As to Smith’s arguments regarding her motions to
continue or remand the trial due to lack of discovery, we cannot
hold that she has raised any issue of merit.
As pointed out in
Suburban’s brief, the day before and the day of the May 1997
trial, Smith’s counsel indicated that the case was ready to go
to trial but for lead counsel, attorney Marshall’s physical and
mental problems.
Smith’s new attorney indicated that he needed
only a four-week continuance to allow him sufficient time to
review the record prior to going to trial.
At no time did he
indicate that discovery was in any way incomplete or lacking.3
Therefore, upon remand, the matter should have been ready to
proceed directly to trial.
That the trial court allowed the
parties to continue with discovery to at least update their
witnesses has no bearing on Smith’s contention that she was not
permitted a reasonable opportunity to engage in discovery.
She
filed her lawsuit in 1990, almost seven years prior to the 1997
trial date.
She then had close to two years to continue
discovery once the case was remanded for further proceedings.
Smith had what amounted to nine years in which to seek out and
obtain discovery in this matter.
She cannot argue that she was
3
We note that in the week before trial, attorney Marshall moved for a
continuance citing the lack of response to his discovery requests. However,
this was not raised by the attorney requesting the continuance on either the
day before or the day of trial. We also note that in the January 29, 2001,
hearing, attorney Marshall indicated, incorrectly, that the case was not
ready at the time of the 1997 trial date due to discovery issues, not due to
his physical and mental condition.
-23-
not provided with a “reasonable opportunity” over that nine-year
period.
Therefore, we must hold that the trial court did not
abuse its discretion in denying Smith’s motions to continue or
remand the trial date due to a failure to complete discovery.
We also cannot accept Smith’s argument that her
attempts at discovery were blocked or delayed, precluding her
from establishing her case.
The trial court did not abuse its
discretion regarding the taking of David Jones’s deposition as
he had already been deposed once and would be available to
testify at trial.
As to the deposition of Richard Remmers, we
agree with Humana that Smith did not preserve this issue as the
trial court never actually ruled on her motion to compel.
Additionally, we agree that the trial court properly limited the
questions that Smith could ask Remmers in his capacity as a
corporate representative during the deposition.
We also agree that the trial court did not abuse its
discretion in denying Smith’s attempt to include Dr. Peeno as a
witness at trial, in particular because she was not timely
identified as a witness.
Smith had more than sufficient time to
identify and locate her expert and lay witnesses over the many
years this case was pending prior to going to trial, so that the
trial court’s refusal to extend the time limitation was well
within its discretion.
We can also find no error in Humana’s
late production of the written transplant policy and procedure
-24-
documentation in that the old documents were eventually located
and produced and in that Smith could not show any harm.
Lastly,
we agree with Dr. Miller that Smith was permitted to ask the
questions she chose to regarding Dr. Miller’s contract with
Humana.
Finally, we agree that the trial court properly denied
Smith’s motion for disqualification and for a mistrial as the
alleged errors on which she relied we have held were not errors.
II. DIRECTED VERDICT IN FAVOR OF HUMANA
At the close of Smith’s case, Humana moved for a
directed verdict, arguing that Smith had failed to establish a
cause of action for breach of contract.
Smith did not submit
any evidence that the contract covered Gary Smith’s liver
transplant.
However, the transplant was administratively
approved once it was requested and there was no evidence that
there would have been a difference in his survival had the
request been approved on August 17 rather than on August 21.
Smith argued that there was a factual issue as to what Humana
knew.
Although indicating it was inclined to direct a verdict
in Humana’s favor, the trial court nevertheless allowed Smith
her full day in court and denied Humana’s motion.
At the close
of the trial, however, the trial court ruled that Humana was
entitled to a directed verdict as there was insufficient
evidence of a breach to take to the jury.
-25-
In her brief, Smith argues that her claims against
Humana were for insurance bad faith rather than in the nature of
medical malpractice.
She argues that she had established
sufficient evidence to allow her to go to the jury in that
Humana violated KRS 446.070 by allowing unlicensed adjusters to
make coverage decisions, that Gary Smith’s policy did not
include within its body all of its criteria and exclusions, and
that Humana failed to communicate its denial of coverage to Gary
Smith.
Humana, on the other hand, notes that Smith did not
plead a cause of action in her second amended complaint under
the Unfair Claims Settlement Act or one for bad faith, but only
alleged claims of medical malpractice, fraud and breach of
contract.
However, she failed to establish even these “new”
causes of action.
Additionally, the claims she did plead were
unsupported by the evidence presented at trial.
Our standard of review regarding a ruling on a motion
for directed verdict pursuant to CR 50.01 is well settled in the
Commonwealth.
On a motion for directed verdict, the
trial judge must draw all fair and
reasonable inferences from the evidence in
favor of the party opposing the motion.
When engaging in appellate review of a
ruling on a motion for directed verdict, the
reviewing court must ascribe to the evidence
all reasonable inferences and deductions
which support the claim of the
prevailing party. Meyers v. Chapman
Printing Co., Inc., Ky., 840 S.W.2d 814
-26-
(1992). Once the issue is squarely
presented to the trial judge, who heard and
considered the evidence, a reviewing court
cannot substitute its judgment for that of
the trial judge unless the trial judge is
clearly erroneous. Davis v. Graviss, Ky.,
672 S.W.2d 928 (1984).
In reviewing the sufficiency of
evidence, the appellate court must respect
the opinion of the trial judge who heard the
evidence. A reviewing court is rarely in as
good a position as the trial judge who
presided over the initial trial to decide
whether a jury can properly consider the
evidence presented. Generally, a trial
judge cannot enter a directed verdict unless
there is a complete absence of proof on a
material issue or if no disputed issues of
fact exist upon which reasonable minds could
differ. Where there is conflicting
evidence, it is the responsibility of the
jury to determine and resolve such
conflicts, as well as matters affecting the
credibility of witnesses. Cf. Taylor v.
Kennedy, Ky.App., 700 S.W.2d 415 (1985).
Bierman v. Klapheke, Ky., 697 S.W.2d 16, 18-19 (1998).
We agree
that Smith failed to present sufficient evidence to overcome
Humana’s motion for a directed verdict.
Because Smith did not dispute Humana’s assertion that
she raised several issues in her brief regarding causes of
action not raised below, we shall decline to review those
arguments, although we note that they are without merit.
These
allegations include Smith’s claims that non-licensed insurance
adjusters were deciding Gary Smith’s coverage and treatment and
-27-
that the insurance policy did not contain all of the criteria
and exclusions.
As to Smith’s identifiable claims against Humana for
medical malpractice, fraud and breach of contract, we agree with
Humana that the evidence presented did not support those causes
of action.
Smith admitted in her brief that her claims against
Humana did not include a claim for medical malpractice.
Additionally, she failed to introduce sufficient evidence to
establish the six-prong test for fraud.4
Smith’s breach of
contract claim also fails because Gary Smith’s request for a
liver transplant was actually approved once it was made, and
Humana paid for all of the services related to the transplant,
although the transplant never took place.
Based upon the evidence presented at the trial of this
matter, we must hold that the trial court did not commit any
error in directing a verdict in favor of Humana at the close of
evidence.
III. SUMMARY JUDGMENT IN FAVOR OF SUBURBAN
We shall next address Smith’s argument that the trial
court improperly granted Suburban’s motion for summary judgment.
4
“In a Kentucky action for fraud, the party claiming harm must establish
six elements of fraud by clear and convincing evidence as follows: a)
material representation b) which is false c) known to be false or made
recklessly d) made with inducement to be acted upon e) acted in reliance
thereon and f) causing injury.” UPS v. Rickert, Ky., 996 S.W.2d 464, 468
(1999).
-28-
Our standard of review in summary judgment matters is well
settled in the Commonwealth.
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. There is no
requirement that the appellate court defer
to the trial court since factual findings
are not at issue. Goldsmith v. Allied
Building Components, Inc., Ky., 833 S.W.2d
378, 381 (1992). “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 “only 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),
citing Steelvest, supra (citations omitted).
Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).
With
this standard in mind, we shall review the trial court’s
decision to grant Suburban’s motion for summary judgment.
In her brief, Smith argues that the trial court should
not have granted a summary judgment to Suburban because the
ruling was premature, because the trial court failed to consider
her responses filed in 2000 to the Suburban’s renewed motion,
-29-
and because Suburban was not entitled to a summary judgment as
it breached its independent duties to Gary Smith.
We disagree.
First, we agree with Suburban that the trial court did
not prematurely rule on its motion for summary judgment.
Smith
clearly had sufficient time to complete her discovery, and in
fact her attorney announced that the case was ready for trial in
1997 but for her lead attorney’s sickness.
Therefore, she
cannot claim that discovery had not been completed once the case
was remanded.
Additionally, Smith’s attempt to re-take the
deposition of David Jones came after Suburban had filed its
renewed motion for summary judgment.
Next, we also agree with
Suburban that the trial court did not ignore information
contained in Smith’s responses filed in 2000.
The trial court
indicated that the later documents were read, but contained too
many extraneous issues.5
Finally, we agree that Suburban was entitled to a
summary judgment because Smith failed to establish that Suburban
breached its duty of care or that any possible breach caused
Gary Smith’s death.
As we cannot improve upon it, we shall
adopt the trial court’s well-reasoned opinion as set out
hereinabove.
CONCLUSION
5
One of these responses was a portion of Smith’s 200-page sealed response.
-30-
For the foregoing reasons, the rulings and judgments
of the Jefferson Circuit Court are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
H. Joseph Marshall
Louisville, KY
Fredric Michels
Louisville, KY
Peter L. Ostermiller
Louisville, KY
BRIEF FOR APPELLEE, MILTON F.
MILLER, M.D.:
William Kennedy Simpson
Louisville, KY
Rheanne D. Falkner
Louisville, KY
BRIEF FOR APPELLEE, GALEN OF
KENTUCKY, INC., GALEN OF
KENTUCKY, INC., F/N/A HUMANA
OF KENTUCKY, INC. AND GALEN OF
KENTUCKY, INC., D/B/A HUMANA
HOSPITAL SUBURBAN:
William T. Robinson, III
Covington, KY
Luann Devine
Covington, KY
BRIEF FOR HUMANA, INC. AND
HUMANA HEALTH PLAN, INC.:
Frank P. Doheny, Jr.
Louisville, KY
Cheryl E. Bruner
Louisville, KY
Kevin Michael Norris
Louisville, KY
-31-
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.
