DONALD RUCKER v. WILLIAM E. BARNES, M.D.; LIVINGSTON HOSPITAL HEALTHCARE SERVICES, D/B/A LIVINGSTON COUNTY HOSPITAL
Annotate this Case
Download PDF
RENDERED: MAY 13, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000637-MR
DONALD RUCKER
APPELLANT
APPEAL FROM LIVINGSTON CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 98-CI-00148
v.
WILLIAM E. BARNES, M.D.;
LIVINGSTON HOSPITAL HEALTHCARE
SERVICES, D/B/A LIVINGSTON COUNTY
HOSPITAL
APPELLEES
OPINION AND ORDER
DISMISSING APPEAL
** ** ** ** **
BEFORE:
BARBER AND VANMETER, JUDGES; HUDDLESTON, SENIOR JUDGE.1
VANMETER, JUDGE:
Donald Rucker filed this medical malpractice
action after he was informed that he tested positive for
Hepatitis C.
Rucker contends that the trial court erred in
granting summary judgment in favor of Dr. William E. Barnes
(Barnes) and Livingston County Hospital (LCH), and by dismissing
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110.(5)(b) of the Kentucky Constitution
and KRS 21.580.
his claims on behalf of his children.
Having determined that
Rucker’s notice of appeal was untimely filed, we must dismiss
this appeal.
In 1989 Rucker received forty-two units of blood
during the treatment of a gunshot wound.
In 1992 he was
admitted to LCH complaining of abdominal pain.
with the patient and tests were performed.
Barnes consulted
One of those tests,
which screened Rucker for the presence of anti-HVC indicated
that Rucker may have been exposed to Hepatitis C.
More
specifically the report stated:
A repeated reactive result may not
necessarily constitute a diagnosis of
Hepatitis C (non A, non B Hepatitis - NANBH)
or indicate the presence of anti-body to
Hepatitis C virus. If reactive, it is
suggested that a supplemental assay . . . be
ordered on this patient to obtain stronger
evidence of the presence of anti-HCV. The
supplemental assay is for research use only.
However, the test results were not disclosed to Rucker, and
Barnes asserts that he was not notified of the results.
No
supplemental tests were ordered, and Barnes contends that Rucker
never requested the results of his tests.
In 1997 Rucker discovered that he had been exposed to
Hepatitis C.
In 1999 Rucker, who still had not undergone any
treatment for Hepatitis C, filed a complaint against Barnes and
LCH on behalf of both himself and his three children.
In July
2000 the court granted appellee LCH’s motion to dismiss the
-2-
children as parties due to the failure to state a viable cause
of action.
In September 2000 the trial court entered a non-
final order granting summary judgment on behalf of LCH, finding
that because Rucker had signed a consent form acknowledging that
Barnes was not a hospital employee ostensible agent liability
did not exist.
The court rejected Rucker’s contention that the
hospital had a duty to disclose the test results, instead
concluding that LCH was entitled to judgment as a matter of law.
On December 17, 2002, the trial court entered a final
and appealable order granting summary judgment in favor of
Barnes and dismissing the action.
The court found that
regardless of whether Barnes was aware of Rucker’s test results
and whether Rucker was ever informed of those results Rucker was
not harmed by any such negligence and was not entitled to
damages since there was no evidence that the doctor’s failure to
inform him of his condition resulted in deterioration to his
liver or health.
Rucker filed a timely motion to alter, amend, or
vacate the December 17 order.
On February 7, while the motion
to alter, amend, or vacate was still pending, Rucker filed an
addendum seeking to include an expert witness’ affidavit
regarding his damages.
On February 10 the trial court entered
an order denying Rucker’s motion to alter, and on February 21
the court entered an amended order correcting a typographical
-3-
error in the February 10 order.
Rucker filed his notice of
appeal on March 19, 2003.
Pursuant to CR 73.02(1)(a), “[t]he notice of appeal
shall be filed within 30 days after the date of notation of
service of the judgment or order under Rule 77.04(2).”
Failure
to timely file “shall result in a dismissal.”2
The circuit court’s order granting summary judgment in
favor of Barnes and dismissing the case3 had a notation of
service date of February 10, 2003.
Rucker’s notice of appeal
was not received and filed by the circuit court clerk until
March 19, 2003, some thirty-seven days later.4
As the notice of
appeal therefore was filed seven days late, this court has no
choice but to dismiss the appeal as untimely. CR 73.02(2).
Rucker argues that a different result is compelled
because the running of time for filing a notice of appeal should
be calculated from the February 21 entry of the amended order
correcting a typographical error in the February 10 order.
CR
60.01 allows a court to correct a clerical mistake at any time,
either by motion of a party or on the court’s own motion.
2
CR 73.02(2). See Stewart v. Kentucky Lottery Corp., 986 S.W.2d 918 (Ky.App.
1998); Burchell v. Burchell, 684 S.W.2d 296 (Ky.App. 1984).
3
The nonfinal order granting summary judgment in favor of LCH was
specifically made “Final and Appealable upon final disposition” of the
remaining claims.
4
The trial court docket sheet reflects the same.
-4-
However, application of the rule is limited to clerical errors,5
and
a motion to correct a clerical mistake "does
not lead to relief from the underlying
judgment...." Thus "[t]he time for appeal
from the underlying judgment correspondingly
dates from the original rendition of judgment
. . ." and not from the entry of an amended
6
judgment.
Thus, as stated in Maslow Cooperage Corporation v. Jones,7 the
February 21 order correcting a typographical error in the
February 10 order “could not operate to revitalize the judgment
in such a way as to start anew the running of the period for
taking an appeal.”
For the foregoing reasons, this appeal is ordered
DISMISSED as having been untimely filed.
CR 73.02(2).
ALL CONCUR.
ENTERED:
5
May 13, 2005
/s/ L. B. VanMeter
Judge, Court of Appeals
Potter v. Eli Lilly and Co., 926 S.W.2d 449, 452 (Ky. 1996).
6
United Tobacco Warehouse, Inc. v. Southern States Frankfort Co-op, Inc., 737
S.W.2d 708, 709-10 (Ky.App. 1987).
7
316 S.W.2d 860, 861-62 (Ky.App. 1958).
-5-
BRIEF FOR APPELLANT:
Donald Rucker, Pro Se
LaGrange, Kentucky
BRIEF FOR APPELLEE WILLIAM E.
BARNES, M.D.:
Richard L. Walter
Paducah, Kentucky
BRIEF FOR APPELLEE LIVINGSTON
HOSPITAL AND HEALTHCARE, D/B/A
LIVINGSTON COUNTY HOSPITAL:
John A. Sheffer
Amy R. Perry
Louisville, Kentucky
-6-
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.
