MARK STEPHENSON v. GRANT COUNTY AMBULANCE SERVICE, INC.; AND OVER THE TOP, INC.
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RENDERED: MAY 20, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002081-MR
MARK STEPHENSON
APPELLANT
APPEAL FROM GRANT CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
ACTION NO. 99-CI-00020
v.
GRANT COUNTY AMBULANCE SERVICE, INC.;
AND OVER THE TOP, INC.
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, HENRY, AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Mark Stephenson has appealed from the September
12, 2003, order of the Grant Circuit Court granting summary
judgment in favor of the Grant County Ambulance Service, Inc.1
1
We note that the record on appeal in this case is incomplete. It begins
with the motion to set pretrial conference filed on March 18, 2003. The
general index fails to provide page numbers for the various pleadings
(Kentucky Rules of Civil Procedure (CR) 75.07(11)). Counsel for the
appellant is reminded that the responsibility to see that the record on
appeal is properly prepared and transmitted to this Court involves
“reciprocal duties imposed upon the appealing party and the clerk by CR
75.07[.]” Belk-Simpson Co. v. Hill, 288 S.W.2d 369, 370 (Ky. 1956).
Having concluded that Stephenson’s claim for “civil battery”
relates back to the date of the original complaint and that the
trial court erred in denying Stephenson’s motion to amend his
complaint and in granting the Ambulance Service’s motion for
summary judgment, we reverse and remand.
On January 15, 1999, Stephenson filed a complaint in
the Grant Circuit Court against the Ambulance Service, alleging
that while he was working for Over the Top, Inc. on January 19,
1998, he fell from a ladder and sustained various injuries, and
that he suffered numerous complications from those injuries2 due
to the negligent care provided him by the Ambulance Service.
The Ambulance Service first transported Stephenson from the
scene of the accident to St. Luke’s Hospital, then, due to the
severity of his injuries, to University Hospital in Cincinnati.
Stephenson claimed that while in route to St. Luke’s Hospital he
repeatedly requested the ambulance medical personnel not to
treat his fractured leg, but that they did not abide by his
wishes.
An expert witness for Stephenson, Donna Adkins, R.N.,3
stated in her deposition that Stephenson’s fracture “should have
been secured, padded, but not reduced, due to reduction causing
2
The injuries referred to in the complaint included the non-union of a leg
fracture, and a permanent lung injury, known as acute respiratory distress
syndrome (ARDS), which developed during Stephenson’s stay in the hospital
following his injury.
3
Adkins has been the President/CEO of Medical Claims Analysis and Management
Services, Inc., and consults with insurance companies, individuals,
attorneys, and employers.
-2-
the potential for significant complications in the form of
infection at the site of the fracture . . . which caused the
patient to develop sepsis and develop ARDS. . . ” [emphasis
original].
Adkins also stated that if Stephenson “requested of
the EMS personnel that they not do anything to his leg, then
they breached the consent.”
On October 26, 2000, the Ambulance Service filed a
motion for summary judgment claiming Stephenson had failed to
produce evidence sufficient to prove that any complications from
his injuries were caused by the actions of the Ambulance
Service.
More specifically, it argued that Adkins was not
qualified to testify regarding the cause of Stephenson’s ARDS.
Therefore, even if the trial court, for the purpose of
addressing the motion for summary judgment, were to accept as
fact Adkins’s opinion that the ambulance personnel had breached
the standard of care regarding Stephenson’s leg fractures,4
Stephenson’s lawsuit should be dismissed for failing to
establish the cause of the complications from his injuries.
After Stephenson filed numerous requests for
extensions of time to respond to the motion for summary
judgment, he finally responded by arguing that it would be
premature to grant summary judgment since he had not been
afforded sufficient opportunity to depose all of the witnesses.
4
Stephenson fractured both legs during the fall.
-3-
The trial court granted Stephenson additional time to develop
his medical proof, but it eventually granted summary judgment in
favor of the Ambulance Service on March 20, 2001.
The trial
court reasoned that although Stephenson had provided expert
medical testimony that the Ambulance Service had breached the
standard of care, he had failed to present any medical proof to
establish the cause of the complications from his injuries.
On
appeal, this Court reversed the trial court on the grounds there
were genuine issues as to a material fact.5
On March 18, 2003, Stephenson filed a motion for the
trial court to schedule a pre-trial conference and a trial date.
On July 9, 2003, Stephenson filed a motion for leave to amend
his complaint, wherein he asserted “additional causes of action
that became known during the discovery process in this matter,
such as civil battery[.]”
He also asked the trial court to
strike from the allegations in his complaint “the medical issues
related to [his] development of ARDS and the delay in the
achieving union at the fracture site.”
The Ambulance Service
filed an objection and response on July 15, 2003, arguing that
Stephenson’s claim of civil battery did not relate back to his
original complaint for negligence and was barred by the statute
of limitations.
The Ambulance Service further argued that even
5
Case No. 2001-CA-000770-MR, rendered June 28, 2002, not-to-be-published,
dis. rev. denied March 12, 2003.
-4-
if the trial court allowed Stephenson to amend his complaint, it
was entitled to summary judgment because Stephenson could not
establish that the alleged actions of the Ambulance Service had
caused the complications from his injuries.
On August 8, 2003, the trial court denied Stephenson’s
motion to amend his complaint; and on August 22, 2003, the
Ambulance Service filed a renewed motion for summary judgment.
While Stephenson apparently did not file a written response to
the motion, he argued before the trial court that its refusal to
allow him to amend his complaint would effectively eliminate his
ability to respond to the motion for summary judgment.
On
September 12, 2003, the trial court entered an order granting
summary judgment in favor of the Ambulance Service.
This appeal
followed.
Stephenson argues that the trial court erred by
granting summary judgment to the Ambulance Service after denying
his motion to amend his original complaint.
Based on CR
15.03(1) and the case law applying that rule, we agree.
15.03(1) states, in relevant part as follows:
Whenever the claim or defense asserted in
the amended pleading arose out of the conduct,
transaction, or occurrence set forth or
attempted to be set forth in the original
pleading, the amendment relates back to the
date of the original pleading.
-5-
CR
In discussing this rule, it has been noted that “[t]he important
consideration is not whether the amended pleading presents a new
claim or defense or presents a new theory, but whether the
amendment relates to the general factual situation which was the
basis of the original controversy” [citation omitted].6
The most cited case in Kentucky on CR 15.03(1) is
Perkins v. Read,7 where the plaintiff had been unsuccessful
before the trial court in seeking to amend her complaint to add
a claim for the personal injuries she sustained in an automobile
accident that had occurred over three years earlier.
After
first allowing plaintiff’s motion to amend, the trial court
later dismissed her claim “as being barred by the one-year
statute of limitations for personal injury actions.”8
In
reversing this Court, which had affirmed the trial court, the
Supreme Court relied on Wimsatt v. Haydon Oil Co.,9 and stated,
“the automobile collision was the sole factual situation giving
rise to the cause of action in the case at bar.
In this respect
it represented the ‘conduct, transaction or occurrence’ which
formed the basis for the original complaint.”
Court had stated as follows:
6
6 Philipps, Kentucky Practice §15.03 (5th ed. 1995).
7
616 S.W.2d 495, 496 (Ky. 1981).
8
Id. at 495.
9
414 S.W.2d 908 (Ky.App. 1967).
-6-
In Wimsatt, the
There was only one cause of action, and
that arose by reason of the negligently
induced collision. The damage claims
arising out of that single “conduct,
transaction or occurrence” consisted of
the claims for wrongful death of Mrs.
Carrico, personal injuries to Thomas
Carrico, and property damage to the
Carrico car. All of these claims arose
from one tortious act, and by the express
language of CR 15.03 the amended complaint
asserting Thomas Carrico’s personal injuries
related back to the date of the original
complaint.10
Similarly, in the case before us, Stephenson sought to
amend his original complaint for the purpose of alleging a claim
of “civil battery”.
Since Stephenson’s additional claim of
civil battery “arose out of the conduct, transaction, or
occurrence” consisting of the Ambulance Service’s transporting
him and providing medical care to him, the trial court erred by
denying his motion to amend his complaint on the grounds that
his civil battery claim did not relate back under CR 15.03(1) to
his original complaint.
Thus, the order of the Grant Circuit Court is reversed
and this matter is remanded for further proceedings consistent
with this Opinion.
ALL CONCUR.
10
Wimsatt, 414 S.W.2d at 911.
-7-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert N. Trainor
Covington, Kentucky
John G. McNeill
Christopher W. Goode
Lexington, Kentucky
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