JERRI B. HORN AND ROY T. HORN v. ROBERT J. THOMAS, M.D.
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RENDERED: August 27, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
MODIFIED:
October 22, 2004; 2:00 p.m.
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001735-MR
JERRI B. HORN AND
ROY T. HORN
APPELLANTS
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 02-CI-00112
v.
ROBERT J. THOMAS, M.D.
APPELLEE
OPINION
AFFIRMING IN PART - REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND KNOPF, JUDGES.
GUIDUGLI, JUDGE. Jerri B. and Roy T. Horn (hereinafter “the
Horns”) appeal from a summary judgment of the Greenup Circuit
Court in their medical malpractice action against Robert J.
Thomas, M.D.
For the reasons stated herein, we reverse the
summary judgment, affirm the denial of the Horns’ motion for
leave to add an expert witness, and remand the matter for
further proceedings.
On August 24, 2000, Jerri Horn (hereinafter “Mrs.
Horn”) experienced shortness of breath and was taken to the
emergency room of Our Lady of Bellefonte Hospital in or near
Greenup County, Kentucky.
A chest x-ray was performed, and a
radiologist stated that the x-ray indicated suspected right midlung atelectasis (collapsed lung).
The report recommended
follow-up to ensure that a mass in the lung was not the
underlying cause of the atelectasis.
Mrs. Horn was admitted to the hospital, and was
treated by Dr. Robert J. Thomas (hereinafter “Dr. Thomas”).
A
CT scan was performed, the impression of which indicated
probable atelectasis or scar tissue, with recommended evaluation
in 4 – 6 weeks.
Mrs. Horn was released from the hospital on
August 25, 2000, and later had a stress test as requested by Dr.
Thomas.
Mrs. Horn had a follow-up visit with Dr. Thomas on
September 8, 2000.
Further testing was ordered, which was
conducted on September 11, 2000.
Another office visit was
conducted on September 15, 2000, about which time Dr. Thomas
believed Mrs. Horn may have had bronchospasm or asthma.
She was
given medication and told to return for another office visit on
October 13, 2000.
Mrs. Horn did not keep the October 13, 2000
appointment.
She would later state that she missed the
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appointment because her condition had not changed, and because
she had never been made aware of the possibility that she had a
mass in her lung.
In March, 2001, Mrs. Horn had a chest x-ray in
preparation for a gynecological procedure.
This x-ray, and a
subsequent CT scan indicated the presence of masses on both of
her lungs.
The masses were determined to be adenocarcinoma, or
lung cancer.
Mrs. Horn was evaluated by Dr. Edward Setser, a
cardiothoracic surgeon.
Dr. Setser opined that the primary
tumor had metastasized and that Mrs. Horn was not a candidate
for surgery.
an oncologist.
Mrs. Horn was also referred to Dr. Gerrit Kimmey,
Dr. Kimmey agreed with Dr. Setser that the
cancer was inoperable and terminal.
Mrs. Horn has undergone
chemotherapy and drug therapy which the record indicates has had
some success in extending her life beyond the original
prognosis.
On February 28, 2002, the Horns filed the instant
action against Dr. Thomas alleging negligence.
A number of
procedural matters were undertaken, and discovery depositions
were completed by May, 2003.
Shortly thereafter, on May 26,
2003, Mrs. Horn, through counsel, sought leave of court to add
an additional expert witness for the apparent purpose of
establishing if the cancer existed in August, 2000, and if so,
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opining as to its stage.
On May 30, 2003, the motion was
denied.
In July, 2003, Dr. Thomas, through counsel, filed a
motion for summary judgment.
As a basis for the motion, Dr.
Thomas maintained that Mrs. Horn could produce no proof as to
causation.
That is, Dr. Thomas argued that even if he breached
a duty to Mrs. Horn, the record contained no proof upon which
Mrs. Horn could rely to show that the alleged breach caused the
cancer to move from a more curable form (stage I) to the
incurable form (stage IV) of her diagnosis.
As such, he
maintained that he was entitled to have the action dismissed.
Upon considering the argument, and the Horns’ responsive brief,
the court rendered a summary judgment in favor of Dr. Thomas on
July 25, 2003.
This appeal followed.
The Horns now argue that the trial court committed
reversible error in granting Dr. Thomas’s motion for summary
judgment.
They maintain that sufficient proof exists in the
record to prove each element of their negligence claim, and that
when the record is viewed in a light most favorable to them it
was sufficient to rebut Dr. Thomas’s motion for summary
judgment.
Accordingly, they maintain that the trial court erred
in terminating the action.
We must first address Dr. Thomas’s assertion that the
instant appeal must be dismissed for failure to comply with CR
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76.12(4)(c)(v).
It provides in relevant part that the
appellant’s brief “shall contain at the beginning of the
argument a statement with reference to the record showing
whether the issue was properly preserved for review and, if so,
in what manner.”
Since the Horns’ argument fails to comply with
this provision, Dr. Thomas argues that the appeal must be
dismissed.
We are not persuaded by this argument.
Dismissal for
failure to comply with CR 76.12(4)(c)(v) is discretionary, not
mandatory.
Cornette v. Holiday Inn Express, Ky. App., 32 S.W.3d
106 (2000).1
This is especially true in appeals from summary
judgment, because the trial court proceeding did not continue to
fruition.
Id.
As such, and for the reasons stated below, we
will not rely on CR 76.12(4)c)(v) as a basis for dismissing the
Horns’ appeal.
Having closely examined the record, the law, and the
arguments of counsel, we agree that summary judgment was not
warranted, and accordingly reverse.
Summary judgment "shall be
rendered forthwith 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 is entitled to
1
Cornette addressed identical language found in CR
76.12(4)(c)(iv), which was subsequently amended to CR 76.12
(4)(c)(v).
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a judgment as a matter of law." CR 56.03. "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 Serv. Ctr., Inc., Ky.,
807 S.W.2d 476, 480 (1991). "Even though a trial court may
believe the party opposing the motion may not succeed at trial,
it should not render a summary judgment if there is any issue of
material fact."
Id.
Finally, "[t]he 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."
Scifres v. Kraft, Ky. App., 916 S.W.2d
779, 781 (1996).
The elements of a medical malpractice action are the
same as any negligence action, i.e., duty, breach, causation,
and injury.
Grubbs ex rel. Grubbs v. Barbourville Family Health
Center, P.S.C., Ky., 120 S.W.3d 682, 687 (2003), citing Mullins
v. Commonwealth Life Ins. Co., Ky., 839 S.W.2d 245 (1992).
Without entering into a protracted analysis of medical
negligence, suffice it to say that, “[I]n Kentucky, if the
physician's service falls below the expected level of care and
skill and this negligence proximately caused injury or death,
then all elements of a malpractice action have been met.”
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Grubbs at 688, citing Reams v. Stutler, Ky., 642 S.W.2d 586
(1982).
For purposes of the instant appeal, Dr. Thomas
acknowledges that he owed a duty to Mrs. Horn.
On the element
of breach, the testimony of Dr. Rudy may be relied upon to
create a genuine issue of material fact.
In addressing
counsel’s deposition question regarding whether Dr. Thomas
allegedly breached a duty to fully apprise Mrs. Horn of her need
for a follow-up examination, Dr. Rudy stated:
“ . . . it’s
below the standard [of care] not to have made her understand or
show good effort to make her understand.
the ball’s [sic] in her court.
There is a point where
I don’t see evidence in this
case that we got to that point.”
While we make no evaluation as to the sufficiency of
this assertion as proof at trial, it does represent a question
of fact upon which reasonable minds could differ.
As such, the
element of breach cannot be relied upon to support a summary
judgment.
The corpus of Dr. Thomas’s summary judgment argument
below was grounded on the elements of causation and damages.
The trial court apparently found as persuasive his claim that
the proof gave rise to no genuine issues as to these elements.
We do not share the trial court’s conclusion on this issue.
Dr. Kimmey, whom the Horns designated as an expert witness,
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stated in deposition that he assumed within a reasonable degree
of medical probability that Mrs. Horn had lung cancer in August
or September of 2000.
Again, the question is not whether this
is compelling evidence, nor whether the trial judge believed
that it would lead one party would prevail at trial, Steelvest,
supra, but whether there exists a genuine issue of material
fact.
Id.
Whether Mrs. Horn had lung cancer in September 2000,
and if so, whether the cancer had not yet progressed to stage
IV, is at the heart of the Horns’ claim.
Dr. Thomas is entitled to summary judgment only if
“his right to judgment is shown with such clarity that there is
no room left for controversy.”
Steelvest, 807 S.W.2d at 842,
citing Isaacs v. Cox, Ky., 431 S.W.2d 494 (1968).
Since some
evidence exists in support of the assertion that Mrs. Horn had
lung cancer in August or September of 2000, even if the evidence
is tenuous, we believe the trial court erred in terminating the
action.
This evidence may be offered in support of both the
causation and damages elements of the Horns’ claim.
The Horns also argue that the trial court abused its discretion
when it denied their motion for leave to add an additional
expert witness.
They claim that no prejudice would have been
suffered by Dr. Thomas by the court granting the motion, and
that they should be entitled to add an expert in support of
their claim.
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We find no error on this issue.
The trial court
ordered all discoveries to be concluded by May 14, 2003.
On May
23, 2003, the Horns moved for leave to add an additional expert
witness.
It appears from the record that they had chosen no
particular witness to add, but rather sought 90 days in which to
locate one.
“An abuse of discretion occurs when a ‘trial judge's
decision [is] arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.’"
Farmland Mutual Insurance Company v.
Johnson, Ky., 36 S.W.3d 368 (2000).
In the matter at bar, the
trial court’s decision not to extend the discovery period cannot
reasonably be regarded as arbitrary, unreasonable, unfair, or
unsupported by sound legal principles, given that the Horns had
approximately fifteen (15) months after filing the complaint in
which to complete discovery.
Finding an abuse of discretion
under the facts at bar would be tantamount to concluding that a
trial court may not enforce its own orders.
While the court
could have exercised its discretion and granted the motion, its
refusal to do so does not constitute an abuse of discretion.
Accordingly, we find no error on this issue.
For the foregoing reasons, we reverse the summary
judgment, affirm the denial of the motion for leave to add an
expert witness, and remand this matter for further proceedings.
ALL CONCUR.
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BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Daniel Scott Bowling
Ashland, KY
David O. Welch
Ashland, KY
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