GEROLD SCOTT WADDLE; AND GILDA DITMER v. GALEN OF KENTUCKY, INC., D/B/A HUMANA HOSPITAL LAKE CUMBERLAND, INC.
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RENDERED:
MARCH 19, 2004; 10:00 a.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002085-MR
GEROLD SCOTT WADDLE; AND
GILDA DITMER
APPELLANTS
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE WILLIAM T. CAIN, JUDGE
ACTION NO. 93-CI-00362
v.
GALEN OF KENTUCKY, INC.,
D/B/A HUMANA HOSPITAL LAKE
CUMBERLAND, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, DYCHE AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Gerold Scott Waddle and Gilda Ditmer have
appealed from an order entered by the Pulaski Circuit Court on
September 17, 2002, which dismissed their vicarious liability
claim against the appellee, Galen of Kentucky, Inc., d/b/a,
Humana Hospital Lake Cumberland, Inc. (Cumberland), with
prejudice.
Having concluded that the trial court did not err by
dismissing the appellants’ cause of action against Cumberland,
we affirm.
At approximately 5:45 p.m. on June 1, 1992, Waddle was
injured in a motorcycle accident in Casey County, Kentucky.
Shortly thereafter, Waddle was taken to the emergency room at
Cumberland for treatment.1
Waddle was initially attended to by
Dr. Elias Deetlefs, the emergency room physician on duty.
Dr.
Deetlefs noticed that Waddle’s left leg appeared to be seriously
injured.
Consequently, he called Dr. Donald Brown, one of the
general surgeons on staff at Cumberland, for a surgical
consultation.
Both doctors agreed that Waddle suffered from
compartment syndrome, a condition which results when swelling or
other causes of pressure prevent blood from reaching a
particular muscle compartment.
Dr. Brown decided to transfer
Waddle to the University of Kentucky Medical Center (UKMC) for a
fasciotomy, the standard operative procedure used to treat
compartment syndrome.
A transport was called at 8:55 p.m., and
Waddle arrived at UKMC at approximately 11:10 p.m.
taken into surgery at 1:30 a.m. on June 2, 1992.
Waddle was
Waddle has had
four additional surgeries performed since the initial
fasciotomy.
On June 1, 1993, Waddle filed a complaint in the
Pulaski Circuit Court against Dr. Brown and Cumberland, in which
1
Cumberland is located in Somerset, Kentucky.
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he alleged, inter alia, that Dr. Brown negligently delayed his
treatment thereby necessitating additional procedures which
resulted in permanent disfigurement, impairment of his earning
power, pain and suffering, and excess medical expenses.2
Waddle
contended that the fasciotomy should have been performed at
Cumberland as opposed to UKMC and that the delay in treatment
resulted in the death and deterioration of certain muscle tissue
in his leg.
Waddle’s mother, Ditmer, joined in the complaint,
alleging damages for lost wages as well as for nursing services
that she provided for her son.
Waddle’s expert witness, Dr. Luther Cobb, testified at
trial that the delays Waddle was subjected to at Cumberland were
a substantial factor in bringing about his ultimate injuries and
in necessitating further operational procedures.
Dr. Cobb
explained that time is of the essence when performing a
fasciotomy due to the possibility of irreversible muscle tissue
loss.
Dr. Cobb opined that Dr. Brown’s decision to transport
Waddle to UKMC rather than to perform the fasciotomy at
Cumberland was a breach of the standard of care.
Nevertheless, the trial court granted Dr. Brown’s
motion for a directed verdict.
The court concluded that the
appellants had failed to produce “sufficient evidence upon which
a reasonable person could determine that a fasciotomy would not
2
Waddle also named Dr. Deetlefs as a defendant in the complaint.
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have been necessary but for the Defendants’ alleged negligence,
that the resultant sequela of Waddle’s injuries would have been
any different but for the Defendants’ alleged negligence, or
that the Defendants’ alleged negligence was otherwise a
substantial contributing factor in causing the injuries”
sustained by Waddle.
The trial court also granted Cumberland’s
motion for a directed verdict.
The trial court reasoned that
the appellants had failed to produce sufficient evidence
indicating the hospital was independently negligent.3
On October 8, 1999, this Court rendered an unpublished
opinion reversing the trial court’s decision with respect to Dr.
Brown and Cumberland.4
This Court concluded that there “was
adequate evidence that [Dr. Brown’s] decision to transfer Waddle
constituted a breach of the standard of care.”
With respect to
Cumberland, this Court agreed with the trial court’s finding of
“no independent negligence on the part of Cumberland.”
Notwithstanding, this Court concluded that “Cumberland may be
subject to liability under the doctrine of ostensible agency.”5
3
The trial court also entered a directed verdict in favor of Dr. Deetlefs.
4
This Court affirmed the trial court’s decision with respect to Dr. Deetlefs.
See Waddle v. Galen of Kentucky, 1998-CA-000178-MR & 1998-CA-000466-MR (notto-be published opinion).
5
For a thorough discussion of the doctrine of ostensible agency see Williams
v. St. Claire Medical Center, Ky.App., 657 S.W.2d 590, 595-97 (1983).
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Consequently, the case was remanded to the Pulaski Circuit Court
for a new trial with respect to Dr. Brown and Cumberland.6
In September 2002 the appellants voluntarily dismissed
their claim against Dr. Brown,7 but they did not enter into a
written settlement agreement.
However, the appellants did
indicate that they intended to proceed against Cumberland under
an ostensible agency theory.
After learning of the dismissal of
Dr. Brown, Cumberland filed a motion to dismiss on September 17,
2002.
In sum, Cumberland contended the appellants had released
the hospital of its liability by agreeing to voluntarily dismiss
their claim against Dr. Brown, the hospital’s alleged ostensible
agent.8
On September 17, 2002, the trial court entered an order
dismissing the appellants’ claim against Cumberland, with
prejudice.
This appeal followed.
The appellants’ argument that the trial court erred by
dismissing their claim against Cumberland is two-fold.
First,
the appellants contend that they never released Dr. Brown.
6
The Supreme Court of Kentucky entered an order denying discretionary review
in the case on September 25, 2000.
7
The trial court entered an order dismissing Dr. Brown as a defendant on
September 16, 2002. It appears the voluntary dismissal was the product of an
agreement on the part of Dr. Brown’s insurance carrier to pay Waddle
approximately $9,900.00 as reimbursement for his “costs”.
8
Cumberland attached an affidavit to its motion to dismiss in which one of
its attorneys, Todd B. Thompson, stated that the appellants’ counsel, Tom
Carroll, had informed him that “Dr. Brown paid money to [Waddle] . . . as a
payment of ‘costs’ associated with the litigation.” In his affidavit,
Thompson further stated that Carroll had informed him that the appellants
“intended to proceed solely against the Hospital based upon a theory of
vicarious liability[,]” and that Dr. Brown had not been given a “‘release’”.
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Second, the appellants argue in the alternative that a “release”
of a defendant who is primarily liable for a particular
plaintiff’s injuries does not necessarily operate as a “release”
of the defendant’s ostensible principal.
We reject both
contentions.
We begin our analysis by setting forth the proper
standard of review.
Since the trial court apparently considered
matters outside of the pleadings, i.e., Thompson’s affidavit, in
arriving at its decision to dismiss the appellants’ claim
against Cumberland, we must treat the motion as one for summary
judgment.9
The standard of review governing an appeal of a
summary judgment is well-settled.
The appellate court must
determine whether the trial court erred by concluding that there
was no genuine issue as to any material fact and that the moving
party was entitled to a judgment as a matter of law.10
Summary
judgment is appropriate “if the pleadings, depositions, answers
to interrogatories, stipulations, 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
9
See, e.g., Pearce v. Courier-Journal, Ky.App., 683 S.W.2d 633, 635 (1985).
See also 6 Philipps, Kentucky Practice, Kentucky Rules of Civil Procedure
(CR) 12.02, cmt. 9 (5th ed. 1995). “On a motion to dismiss . . . the Rule
recognizes that matters outside the pleadings may be presented by affidavit
or otherwise. It is within the discretion of the court whether or not this
extraneous matter shall be considered, but if the court does not exclude it,
the motion shall be treated as one for summary judgment under Rule 56.”
10
Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).
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is entitled to a judgment as a matter of law.”11
In Paintsville
Hospital Co. v. Rose,12 our Supreme Court held that for summary
judgment to be proper the movant must demonstrate that the
adverse party cannot prevail under any circumstances.
The Court
has also stated that “the 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.”13
The
appellate court need not defer to the trial court since factual
findings are not at issue.14
“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.”15
Furthermore, “a party opposing a properly supported
summary judgment motion cannot defeat it without presenting at
least some affirmative evidence showing that there is a genuine
issue of material fact for trial.”16
“‘A release is a private agreement amongst parties
which gives up or abandons a claim or right to the person
11
CR 56.03.
12
Ky., 683 S.W.2d 255, 256 (1985).
13
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 480
(1991).
14
Goldsmith v. Allied Building Components, Inc., Ky., 833 S.W.2d 378, 381
(1992).
15
Steelvest, 807 S.W.2d at 480.
16
Id. at 482.
See also Kentucky Practice, CR 56.03, cmt. 4.
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against whom the claim exists or the right is to be enforced or
exercised.’”17
That is to say, a release is a surrender of a
claimant’s right to prosecute a cause of action.18
In Kentucky,
a release is viewed as a contract between the party executing
the release and the party being released.19
A contract, in the
absence of a statutory requirement, need not be in writing.20
As
with any valid contract, however, a release must be supported by
valuable consideration.21
It is undisputed that the appellants
in the case sub judice entered into an oral agreement with Dr.
Brown’s insurance carrier whereby they agreed to voluntarily
dismiss their claim against Dr. Brown in exchange for $9,900.00.
This agreement was clearly supported by valuable consideration.22
Thus, we are persuaded that the appellants entered into a valid
and enforceable release with respect to Dr. Brown.
We now turn to the question of whether a valid release
of an agent for the agent’s alleged tortious conduct operates to
bar recovery against the principal on a theory of vicarious
17
Frear v. P.T.A Industries Inc., Ky., 103 S.W.3d 99, 107 (2003) (quoting 66
Am.Jur.2d, Release, § 1 (2001)).
18
Frear, supra at 107.
19
Richardson v. Eastland, Inc., Ky., 660 S.W.2d 7, 8 (1983).
20
Skaggs v. Wood Mosaic Corp., Ky., 428 S.W.2d 617, 619 (1968).
21
Brown v. Kentucky Lottery Corp., Ky.App., 891 S.W.2d 90, 92 (1995).
22
Cf., Beech v. Deere & Co., Ky.App., 614 S.W.2d 254, 257 (1981).
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liability.23
In Copeland v. Humana of Kentucky, Inc.,24 this
Court was presented with an analogous situation.
The plaintiff,
Laura Michele Copeland, was scheduled to have corrective eye
surgery at Humana Hospital Suburban.
Prior to her operation,
anesthesiologists employed by Schafer and Nash, P.S.C. prepped
Laura for surgery.
During the administration of her anesthesia,
Laura apparently suffered a brain injury which rendered her
severely disabled.
Subsequent to Laura’s injury, her parents
(as Laura’s guardians) entered into a settlement agreement which
provided in pertinent part that Schafer and Nash, its insurer,
and the anesthesiologists who administered Laura’s anesthesia
would never “have to pay out any further sums to any person or
entity by reason of injury or death sustained by Laura. . . .”25
Shortly after the execution of this settlement
agreement, the Copelands filed suit against Humana and the
surgeon who performed Laura’s operation.
The trial court
dismissed the Copelands’ claim against Humana which had been
based on a vicarious liability theory.
On appeal to this Court,
the trial court’s dismissal was affirmed for two reasons.
First, this Court noted that if the Copelands were permitted to
23
The law is well-settled that a hospital can be held vicariously liable for
the negligent acts of its ostensible agents. See Williams, 657 S.W.2d at
595-97.
24
Ky.App., 769 S.W.2d 67 (1989).
25
Id. at 68.
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recover against Humana based upon a vicarious liability theory,
a problem would arise with respect to “circuity of action” under
the terms of the settlement agreement, i.e., Humana would be
able to pursue a recovery against its agents, Schafer and Nash,
and pursuant to the settlement agreement, Schafer and Nash could
seek indemnification from the Copelands.26
Thus, vis-à-vis the
Copelands’s claim against Humana, all of the parties would end
up in the same position as they had been prior to the
Copelands’s filing suit.
As a second basis for its holding in Copeland, this
Court relied on the basic principle that a release of an agent
from liability also releases the principal insofar as the
principal’s liability is derived solely from the agent’s
negligence:
As far as the vicarious liability
issue, we find that other courts have
spoken to this issue with persuasive
reasoning which we paraphr[a]se and
adopt. The covenant not to sue not
only operated to discharge the
anesthesiologists, Schafer and Nash,
P.S.C. (the servants/employees) as the
parties primarily responsible, it
[e]ffected a complete discharge of the
hospital (the master/employer) who is
only secondarily liable, despite the
attempted reservation by the Copelands
in the covenant of all their rights
against the hospital. The Copelands
had but one cause of action which the
law gave to compensate them for their
26
Id. at 69.
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daughter’s injuries. This cause of
action for the allegedly tortious
conduct of Schafer and Nash was
assertable against the hospital only
because Schafer and Nash were allegedly
acting in their function as employees
or ostensible agents of the hospital at
the time they committed the negligent
act causing Laura Michele Copeland's
injury. When Schafer and Nash entered
into the structured settlement
agreement with the Copelands, they
repaired the wrong that they had done
and therefore were fully acquitted from
further liability. This acquittance
inured to the benefit of the hospital,
for the discharge of the primary
tortfeasor (Schaefer and Nash) must be
held to discharge the secondary
tortfeasor (the hospital) also from
further responsibility, as the
hospital’s liability for the tortious
act was vicarious in nature and derived
solely from its legal relation to the
wrongdoer, Schafer and Nash.27
In the case sub judice, while there is no apparent
problem with circuity of litigation with respect to the release
agreement at issue, the language quoted above applies with equal
force.
As we mentioned previously, the appellants entered into
an agreement with Dr. Brown to voluntarily dismiss their claim
against him in exchange for $9,900.00.
Thus, since the alleged
primary tortfeasor, Dr. Brown, was discharged from further
liability, the alleged secondary tortfeasor, Cumberland, must
also be deemed to be released from further responsibility.
appellants’ vicarious liability claim against Cumberland was
The
27
Id. at 70.
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derived solely from the alleged negligence of Dr. Brown.
Accordingly, the release executed in favor of Dr. Brown inured
to the benefit of Cumberland to bar the appellants’ vicarious
liability claim.
In their brief to this Court, the appellants argue
that Copeland does not control and that pursuant to our Supreme
Court’s decision in Cohen v. Alliant Enterprises, Inc.,28 their
vicarious liability claim against Cumberland should be allowed
to go forward.
We disagree.
In Cohen, the sole issue before the Court was whether
an urgent treatment facility (principal) could be held
vicariously liable for the alleged negligence of one of the
treatment facility’s physicians (agent), where the physicianagent “ha[d] escaped liability by virtue of the statute of
limitations.”29
The Supreme Court answered this question in the
affirmative:
The case at bar is clearly
distinguishable from Copeland, in that
there has been no settlement of any
sort here. The Copelands were able to
recover for the negligence of the
anesthesiologist/agent via the
“release” or “covenant not to sue” and
therefore, the vicarious liability of
the hospital for the negligent actions
of its agent could not serve as a
second recovery for the same offending
conduct. The fact that Mr. Cohen
28
Ky., 60 S.W.3d 536 (2001).
29
Id. at 537.
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cannot recover from the [physician]agent here does not negate the fact
that liability may exist, and that it
can be imputed to the principal. It is
the negligence of the servant that is
imputed to the master, not the
liability.30
Hence, the key distinction between Copeland and Cohen
is that in the former, the agent’s alleged negligence was
“discharged” via the settlement agreement, whereas in the
latter, the claim against the agent was simply barred by the
statute of limitations.
In other words, since the physician-
agent’s alleged negligence in Cohen had not been discharged, the
urgent treatment facility as principal was subject to suit based
upon a theory of vicarious liability.
Under the facts of the instant case, Copeland clearly
controls.
Dr. Brown’s alleged negligence was “discharged” in
exchange for the payment of $9,900.00.
Thus, no negligence
could thereafter be imputed to Cumberland.
Accordingly, the
trial court did not err by dismissing the appellants’ cause of
action against Cumberland.
Based on the foregoing, the order of the Pulaski
Circuit Court is affirmed.
ALL CONCUR.
30
Id. at 538.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas E. Carroll
Monticello, Kentucky
B. Todd Thompson
Louisville, Kentucky
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