DONNA K. DECKER v. KIMBERLY A. ALUMBAUGH, M.D.
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RENDERED: APRIL 25, 2003; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000520-MR
DONNA K. DECKER
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DENISE CLAYTON, JUDGE
ACTION NO. 00-CI-002507
KIMBERLY A. ALUMBAUGH, M.D.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BAKER, GUIDUGLI AND KNOPF, JUDGES.
GUIDUGLI, JUDGE.
In this medical malpractice action, Donna K.
Decker (hereinafter “Decker”) has appealed from the Jefferson
Circuit Court’s February 8, 2002, summary judgment in favor of
Kimberly A. Alumbaugh, M.D., (hereinafter Dr. Alumbaugh).
Having considered the parties’ briefs, the certified record and
the applicable case law, we affirm.
On April 13, 2000, Decker filed a complaint in the
Jefferson Circuit Court alleging that Dr. Alumbaugh negligently
performed a surgical procedure on her on April 28, 1999, causing
a punctured bowel necessitating further surgical repair, and
that she deviated from the standard of care of a reasonably
competent medical doctor acting under the same or similar
circumstances.
She alleged that as a direct and proximate cause
of this negligence, she suffered severe physical pain, mental
anguish and distress, lost wages1, and incurred hospital and
medical expenses for the care and treatment of her injuries.
Dr. Alumbaugh filed a response on April 26, 2000, stating that
the complaint failed to state a cause of action upon which
relief could be granted and praying that the complaint be
dismissed.
Soon thereafter, Dr. Alumbaugh served Decker with
several discovery requests, including a Request for Admissions,
a First Set of Request for Production of Documents, and a First
Set of Interrogatories2.
Although Decker filed her response to
the Request for Admissions on May 3, 2000, she did not file the
other two responses within thirty days.
The response she did
file did not name an expert witness upon whom she planned to
1
Decker apparently dropped her claim for lost wages because in discovery
responses, she indicated that she was unemployed both at the time of the
incident and at the time she completed the discovery response. Therefore,
she did not have any lost wages to claim.
2
This particular discovery request was apparently served on April 25, 2000.
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rely.
Accordingly, Dr. Alumbaugh filed a motion for summary
judgment pursuant to CR 56.03 on May 25, 2000, relying upon her
own affidavit stating that she met the standard of care in her
treatment of Decker, and that the bowel injury, a recognized
complication, occurred in the absence of negligence.
In her
motion, Dr. Alumbaugh argued that she was entitled to a judgment
as a matter of law because Decker failed to state an issue of
material fact against her and did not provide the name of an
expert witness to support her claim of negligence.
Therefore,
Decker would be unable to dispute Dr. Alumbaugh’s affidavit
concerning her treatment.
On June 11 and June 13, 2000, Decker filed her
responses to the remaining discovery requests, in which she
named Dr. Lawrence W. Nunemaker, a gynecologist, as her retained
expert witness.
She also indicated that she could not provide
Dr. Alumbaugh with any of her medical records as they were in
the possession of Dr. Nunemaker.
She then filed a response to
the motion for summary judgment on June 14, 2000, in which she
stated that she had not yet received Dr. Nunemaker’s report, but
expected to receive it within the next ten days.
However, she
stated in her response that Dr. Nunemaker indicated to her
counsel that Dr. Alumbaugh was negligent.
Dr. Alumbaugh
scheduled the deposition of Dr. Nunemaker for June 23, 2000, and
served a subpoena duces tecum on Dr. Nunemaker for Decker’s
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medical records on June 15, 2000.
The deposition was apparently
renoticed for March 1, 2001, but canceled due to the circuit
court’s entry of a summary judgment.
To the apparent surprise of the parties, the circuit
court granted Dr. Alumbaugh’s motion for summary judgment by
order entered February 20, 2001, basing its decision upon
Decker’s failure to state an issue of material fact against Dr.
Alumbaugh and the fact that she did not have an expert to
support her claim.
This order was vacated by the circuit court
on Decker’s motion on April 30, 2001.
In October, Dr. Alumbaugh
once again noticed the deposition of Dr. Nunemaker as well as of
Decker for December 5, 2001, and served another subpoena duces
tecum on Dr. Nunemaker, who had not responded to the first
subpoena.
The depositions were canceled, however, due to a
family emergency concerning Decker’s counsel, and Dr. Nunemaker
apparently never responded to the second subpoena.
On December 11, 2001, Dr. Alumbaugh filed a renewed
motion for summary judgment, indicating that Decker had still
not produced her expert witness, Dr. Nunemaker, for a deposition
or provided an affidavit from him to support her claim, despite
repeated requests.
Decker did not file a response to the motion
for summary judgment within twenty days pursuant to the local
rules.
Therefore, the circuit court entered an order on January
17, 2002, indicating that it had taken the matter under
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submission as the time for filing a response had passed.
Not
until February 4, 2002, did Decker file a late response to the
renewed motion for summary judgment, in which she stated that
she still had not received a written report from Dr. Nunemaker
and therefore could not produce it for Dr. Alumbaugh, and that
Dr. Alumbaugh had not attempted to reschedule the canceled
depositions.
Furthermore, she argued that the grounds of Dr.
Alumbaugh’s renewed motion were in the nature of a discovery
dispute, and that summary judgment should not be used as a
sanctioning tool in such situations.
By order signed on January
30, 2002, but not entered until February 8, 2002, the circuit
court granted Dr. Alumbaugh’s renewed motion for summary
judgment and dismissed the action with prejudice, noting that
Decker’s response was due on January 6, 2002.
This appeal
followed.
In her brief, Decker continues to argue that the
circuit court abused its discretion by using summary judgment as
a dismissal tool for what she avers is a discovery dispute.
She
notes that the discovery delay had not been of a long duration,
and that existing material facts still needed to be litigated.
On the other hand, Dr. Alumbaugh counters Decker’s contentions
and argues that the procedural history of the action and the
lack of evidence in the record support the summary judgment.
Dr. Alumbaugh first argues that Decker failed to preserve the
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issue raised on appeal because she did not take any timely
action after the filing of the renewed motion for summary
judgment.
Furthermore, Dr. Alumbaugh argues that Decker had
failed to produce any evidence from her expert witness, over a
year from the date her counsel assured the circuit court and
opposing counsel that a report would be forthcoming.
In Lewis v. B&R Corporation, Ky.App., 56 S.W.3d 432,
436 (2001), this Court set out the standard of review in appeals
from summary judgments:
The standard of review on appeal when a
trial court grants a motion for 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." The trial court must view
the evidence in the light most favorable to
the nonmoving party, and summary judgment
should be granted only if it appears
impossible that the nonmoving party will be
able to produce evidence at trial warranting
a judgment in his favor. The moving party
bears the initial burden of showing that no
genuine issue of material fact exists, and
then the burden shifts to the party opposing
summary judgment to present "at least some
affirmative evidence showing that there is a
genuine issue of material fact for trial."
The trial court "must examine the evidence,
not to decide any issue of fact, but to
discover if a real issue exists." While the
Court in Steelvest [Ky., 807 S.W.2d 476
(1991)]used the word "impossible" in
describing the strict standard for summary
judgment, the Supreme Court later stated
that that word was "used in a practical
sense, not in an absolute sense." Because
summary judgment involves only legal
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questions and the existence of any disputed
material issues of fact, an appellate court
need not defer to the trial court’s decision
and will review the issue de novo.
(citations in footnotes omitted)
Additionally, the Supreme Court in Hoke v. Cullinan, Ky., 914
S.W.2d 335, 337 (1996), stated that “[p]rovided litigants are
given an opportunity to present evidence which reveals the
existence of disputed material facts, and upon the trial court’s
determination that there are no such disputed facts, summary
judgment is appropriate.”
With this standard of review in mind,
we shall consider the matter before us.
Pursuant to CR 56.03, a summary judgment is
appropriate “if the pleadings, depositions, answers to
interrogatories, stipulation, and admissions 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.”
Here, we agree with Dr.
Alumbaugh that, based upon the history of this case and the
evidence provided, there is no genuine issue as to any material
fact, and that she is entitled to a judgment as a matter of law.
In our review of the record, we note that Decker’s
first mention of Dr. Nunemaker as her retained expert witness
came in her June 11, 2000, answer to the Request for Production
of Documents, followed closely by her naming of Dr. Nunemaker as
a witness at trial in her answer to Interrogatories.
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In her
June 14, 2000, response to the original motion for summary
judgment, she indicated that she expected to receive Dr.
Nunemaker’s report within ten days.
By the time Dr. Alumbaugh
renewed her motion for summary judgment in December 2001,
neither party had received a copy of any type of report from Dr.
Nunemaker, despite Decker’s assurances that the report was
forthcoming months previously.
We further note that at no time
did Decker attempt to name a new expert witness to support her
claim of negligence.
She is therefore left with nothing to
counter Dr. Alumbaugh’s affidavit in which she stated she met
the applicable standard of care in her treatment of Decker.
In order to go forward with her case, Decker must
present expert testimony to support her claim of negligence.
In
Jarboe v. Harting, Ky., 397 S.W.2d 775 (1965), the former Court
of Appeals of Kentucky set out the general rule as follows:
“[T]he general rule is that expert testimony is required in a
malpractice case to show that the defendant failed to conform to
the required standard.”
Id. at 778.
The only evidence
presented in this case is the affidavit of Dr. Alumbaugh, in
which she states that her actions were not negligent.
Decker
was provided with a more than adequate amount of time to provide
Dr. Nunemaker’s report supporting her claim, but failed to do so
or to offer any other type of proof.
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Therefore, there is no
issue of material fact to be decided by a fact-finding jury, and
Dr. Alumbaugh is entitled to a judgment as a matter of law.
We disagree with Decker’s contention that this is a
discovery dispute matter of short duration, and that summary
judgment should not have been used as a sanctioning tool in this
instance.
Decker’s first discovery response was filed in May
2000, followed by assurances that Dr. Nunemaker’s report
establishing negligence would be shortly forthcoming.
By the
time the circuit court granted the renewed motion for summary
judgment in early 2002, the report had not been received by
either party.
Likewise, the certified record does not reveal
that Dr. Nunemaker’s report was ever filed or made available to
Dr. Alumbaugh, and Decker did not aver in her brief that she
ever received it.
This “delay” cannot be considered to be of
short duration as argued by Decker, especially in light of the
fact that she did not apparently retain any other expert witness
to provide evidence on her behalf.
We have reviewed the cases relied upon by Decker to
the effect that summary judgment is not to be used as a
sanctioning tool in discovery disputes, but do not find those
cases to be applicable here.
In Ward v. Houseman, Ky.App., 809
S.W.2d 717 (1991), a dismissal by summary judgment was reversed
in a case where plaintiff’s counsel failed to timely provide the
name of an expert witness several months prior to trial.
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The
defendant merely moved to exclude the expert’s testimony, not
for a summary judgment.
Likewise, in Bridewell v. City of
Dayton, Ky.App., 763 S.W.2d 151 (1988), the Court of Appeals
held that the circuit court’s dismissal of an action when
interrogatories were filed four weeks late was an abuse of
discretion.
In the present case, Decker had at least one and
one-half years to produce a report or affidavit from Dr.
Nunemaker, or to produce him for a deposition, but failed to do
so.
Furthermore, we do not believe that the circuit court used
summary judgment to sanction Decker, as it based its decision on
the lack of an expert witness and failure to state an issue of
material fact against Dr. Alumbaugh.
Because we agree with the circuit court that there are
no genuine issues as to any material fact and that Dr. Alumbaugh
is entitled to a judgment as a matter of law, we affirm the
circuit court’s summary judgment dismissing the complaint.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
G. William Bailey, Jr.
Elizabethtown, KY
Scott P. Whonsetler
Louisville, KY
Kirsten Rene Daniel
Louisville, KY
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