VENITA GAIL HARRIS, ADMINISTRATRIX OF THE ESTATE OF ROBERT BENJAMIN LEE HARRIS; AND VENITA GAIL HARRIS AND BENJAMIN J. HARRIS, INDIVIDUALLY AND AS PARENTS OF ROBERT BENJAMIN LEE HARRIS v. KEITH A. HEWITT, M.D.; KELA L. FEE, M.D.; AND HEWITT, DAVIS AND FEE
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March 11, 2005; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002736-MR
VENITA GAIL HARRIS, ADMINISTRATRIX OF
THE ESTATE OF ROBERT BENJAMIN LEE HARRIS;
AND VENITA GAIL HARRIS AND BENJAMIN J.
HARRIS, INDIVIDUALLY AND AS PARENTS OF
ROBERT BENJAMIN LEE HARRIS
APPELLANTS
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
ACTION NO. 00-CI-00369
v.
KEITH A. HEWITT, M.D.; KELA L. FEE, M.D.;
AND HEWITT, DAVIS AND FEE
APPELLEES
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE:
JOHNSON AND McANULTY, JUDGES; HUDDLESTON, SENIOR JUDGE.1
JOHNSON, JUDGE:
Venita Harris and her husband, Benjamin (Ben)
Harris (collectively the appellants) have appealed from the
November 6, 2003, order of the Warren Circuit Court which
granted summary judgment to Keith A. Hewitt, M.D., Kela Lyons
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.
Fee, M.D., and the partnership of Hewitt, Davis and Fee
(collectively the doctors); denied the appellants’ motion for
summary judgment; and excluded the testimony of their expert
witness, Dr. Michael L. Resnick.
We conclude that the issue of
whether the trial court abused its discretion in excluding Dr.
Resnick’s testimony is moot.
We also conclude that the trial
court did not err in denying the appellants’ motion for summary
judgment. Thus, we affirm the trial court’s order in part.
We
further conclude that the trial court erred in granting summary
judgment to the doctors, as there was sufficient evidence to
establish the standard of care and a genuine issue as to the
breach of that standard of care.
Thus, we reverse that portion
of the trial court’s order and remand for further proceedings
consistent with this Opinion.
Appellants filed this action against the doctors2
alleging medical negligence in the birth of their son, Robert
Benjamin Lee Harris, which caused his death on March 23, 1999.
The appellants based their claim on a lack of informed consent,
alleging that Dr. Hewitt failed, during the period of Venita’s
prenatal care, to counsel her concerning the risks of undergoing
a vaginal birth, after she had previously given birth by
cesarean section (C-section) and that any counseling Dr. Fee
2
The Medical Center at Bowling Green was originally named as a party to this
action. The trial court dismissed the Medical Center from the case by
summary judgment entered on March 9, 2001.
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provided to Venita about the risks of the procedure and her
options came after Venita was too far into labor for her to make
a rational decision.
Venita and Ben were married in 1997, and on July 27,
1998, Venita saw Dr. Hewitt, who confirmed her pregnancy and
began her prenatal care.
Venita informed Dr. Hewitt that she
had had a child by a prior marriage, approximately 16 years
earlier, and that child had been delivered by C-section.3
Dr.
Hewitt informed Venita that she might be able to give vaginal
birth even after having delivered by C-section (VBAC).
It is
undisputed that Dr. Hewitt did not document the scope of his
discussions with Venita during prenatal counseling with her.
However, he testified that he discussed the advantages and
disadvantages of both VBAC and C-section with Venita.
Dr.
Hewitt stated in his deposition taken on August 21, 2000, as
follows:
Q:
A:
Yes.
Q:
Do you recall when that took
place?
A:
3
During your treatment of Venita
after it was determined that she
was pregnant, did you ever have
a discussion with her about the
risk of following a trial of
labor?
At every visit.
Venita’s prior medical history included endometriosis and preeclampsia.
-3-
Q:
Every visit?
A:
Every visit. We talk about
that every visit.
Q:
Tell us exactly what you said
every visit.
A:
Well, basically, when they’ve
come in with a previous Csection, I’ll say: Well, you know you
have the option to have a vaginal
delivery, and if you desire so after
we’ve educated you on all your findings
and all the data, basically, there’s
risks both ways. There’s risks of
cesarean sections. There’s risk of
repeat V-backs [sic].
And I always tell them that there are
things throughout the pregnancy that
might change their decision. And I
always try to tell them not to get bent
on one decision at the beginning of the
pregnancy because they may have data
that pop up toward the end that will
change their mind.
And that frequently happens. You’ll
frequently have some women that will
say they want a V-back [sic] and then
some that say they want a C-section,
and then at the end of the pregnancy
will change their mind one way or the
other depending on the data.
But as data pops up, you know, that
would have some influence on what
choice you made, then we discuss that
aspect of it too.
. . .
Well, what I actually say is, I say:
Listen, there is [sic] complications
both ways. If you have a repeat
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cesarian [sic] section, there’s [sic]
complications in having the anesthetic.
The anesthetic is generally a more
aggressive anesthetic with the cesarian
[sic] section than with the vaginal
delivery.
You can have epidurals both ways, but
you have general anesthetic with the
cesarian [sic] section. General
anesthetic is the biggest risk to
pretty much any surgery; risk of
aspiration, risk of wound infection,
risk of retained fluid in the baby’s
lungs, risk of abdominal organ injury.
There’s also the debilitating risks of
injuring the uterus in such a way that
it will hamper you with problems the
rest of your life with irregular
bleeding, pelvic pain, adhesions,
things like that. Endometriosis is a
high risk after a cesarian [sic]
section.
Vaginal, you know, we bring up that
vaginally is generally safer. Vaginal
delivery after cesarian [sic] section
can have some risks too.
One of the risks of a vaginal delivery
after cesarian [sic] section is that
you can labor for 20 hours and still
end up with a cesarian [sic] section.
You could have, you know, basically a
risk of kind of putting up with all
that and then having to have a Csection, and that would be the worse
scenario.
Then we bring up uterine rupture.
Uterine rupture, we admit to them it is
a rare complication, but it can happen.
It can have devastating results.
And then again, I revent, [sic] I just
basically say: Listen, don’t make this
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concrete decision now. Let’s see how
things progress, and then, you know, as
we get down the line and things happen
that would make you change your mind,
you may change your mind.
Venita claims that Dr. Hewitt never discussed the
benefits and the risks of either VBAC or C-section.
Ben
testified that, while he was not at every prenatal visit Venita
made to Dr. Hewitt, he does not recall a discussion with Dr.
Hewitt regarding Venita’s delivery options during the visits he
attended.
Neither Venita nor Ben recalls being told by Dr.
Hewitt that a trial of labor could result in a uterine rupture
and death or brain damage to the baby.4
Both Venita and Ben
testified that they were not aware that Dr. Hewitt was going on
vacation and they believed he would deliver their baby.
Venita’s pregnancy with Robert was difficult, and
she developed hypertension.
On March 19, 1999, Venita thought
she was having contractions and she went to the Medical Center
in Bowling Green.
Dr. Hewitt saw Venita at that time; and while
working under the erroneous assumption that she was 37 weeks
4
Both Venita and Ben were deposed on July 18, 2000. Venita stated in her
deposition that the delivery of her first child by C-section was necessary
only after her arriving at the hospital in labor and being told she had
developed preeclampsia and cephalopelvic disproportion (CPD). Preeclampsia
was defined by Dr. Fee as a “condition that is defined by protein in your
urine, elevated blood pressures and swelling . . . only found in pregnancy.”
CPD is a condition where the fetal head of a baby is too large to fit through
the pelvis of the mother. Venita also stated that she had discussed with Dr.
Hewitt that her previous obstetrician, Dr. Hatcher, told her that she would
never be able to have natural childbirth. Venita stated that Dr. Hewitt
“briefly said that things had changed, there was an option of trial of labor,
but he would talk to me about that at a later time.”
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pregnant, he determined that she was having false labor and that
she was dehydrated.
that day.
Dr. Hewitt treated Venita and sent her home
On March 19, 1999, Venita was actually 39 weeks
pregnant; and Dr. Hewitt has conceded that the standard of care
provides that a scheduled C-section should occur no earlier than
the 39th week.
In his deposition, Dr. Hewitt testified as
follows:
Q.
As I understand what you’ve said, it’s
an open decision that can be changed at
any point?
A.
Uh-huh (yes).
Q.
But at this point, she was going into
labor, she thought. It appears that
she was under the assumption that she
was going to go through a vaginal
deliver[y]. I would take it as that
from just looking at the records.
A.
Right. But being 37 weeks and the
repeat sections are done at 39, that
was still an option too.
Q.
So she was still two weeks before term?
A.
Like if she had said, I want a repeat
section, we would have done that at 39
weeks.
Q.
Why would you do that at 39 weeks?
A.
Well, you do 39 weeks because whenever
you’re taking it upon yourself to
deliver a baby and pick the date that
it comes out, you want to be pretty
accurate about maturity. So you do 39
weeks.
-7-
And that’s kind of a standard of care
to make sure the baby’s mature enough.
You can do it a week earlier than term
just to prevent having a lot of Csections come in in the middle of the
night that are in labor and want the
repeat section. You try to beat labor
by a little bit so you can get it
scheduled.
Q.
But in this case, she apparently was
possibly in the early stages of labor?
A.
Well, that – right. She presented
herself with nausea, vomiting,
dehydration, it looks like, and
questionable whether she was in labor.
And that’s basically her patient
complaint right there.
. . .
Q.
The fact that she was having
contractions at all though is a product
of the pregnancy and the fact that she
is getting closer to her delivery?
A.
Right. I mean that can go on for weeks
in the later stages of pregnancy.
Q.
There’s no documentation there that you
had any kind of discussion with her
about V-back [sic] versus C-section?
A.
Not for that specifically, no.
Q.
And you don’t have any recollection of
any conversation like that?
A.
Other than that I always do every time
somebody comes in and they had a
previous cesarian [sic] section. After
I’ve looked at the monitor, I always
say, you know, we’re always open here.
We can go either way.
-8-
In this instance, I’m sure most of my
discussion was pointed toward telling
the patient how this could be labor;
this may not be labor; we’ll have to
watch you for a while and see what you
do; and go from there.
On March 21, 1999, two days after Dr. Hewitt’s
examination, Venita returned to the Medical Center complaining
of pain.
Since Dr. Hewitt was in Florida on vacation, Dr. Fee,
who is one of Dr. Hewitt’s associates, was the group physician
on call when Venita arrived at the Medical Center.
Dr. Fee
testified that it was the doctors’ normal practice that when one
doctor was on vacation, the doctor on call would become familiar
with the charts of all of the vacationing doctor’s patients who
were close to their delivery dates.
However, Dr. Fee stated in
her deposition that she was not familiar with Venita’s chart or
any aspect of her treatment with Dr. Hewitt until the evening of
March 21, 1999.
The hospital called Dr. Fee and she gave orders
for Venita to go home and to return when her water broke or her
contractions were five minutes or less apart.
Later that day, at approximately 7:25 p.m., Venita
went into labor and was admitted to the Medical Center.
Venita’s medical records indicate that Dr. Fee did not
physically examine her until approximately 11:00 p.m., but she
did give telephonic orders at 9:00 p.m. to augment Venita’s
labor with Pitocin.
Upon her arrival at the hospital, Dr. Fee
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discussed with Venita and Ben the risks versus the benefits of
VBAC, including the possibility of death or brain damage to the
baby.
Dr. Fee gave them privacy to discuss this matter and to
decide what type of delivery Venita would undergo.
Venita and
Ben testified that this was the first time they had been
informed of these risks and they did not know what course of
treatment to choose.
They testified that they understood Dr.
Fee to say that VBAC was the safer route and they agreed to it.
Thus, Dr. Fee continued her treatment of Venita with the
objective of a vaginal delivery.
Dr. Fee testified in her deposition on July 18, 2000,
as follows:
A:
I got a history from the nurse.
And upon hearing her history, knew
that Mrs. Harris was a VBAC
candidate. And I even asked the
nurse – I said does she plan on
VBAC’ing, and the nurse said, yes,
she does, as if it had already
been decided. And I said, well,
I’ll be in very soon, because when
a patient is VBAC’ing, I stay in
the hospital.5
. . .
Then I wrote my assessment as she’s at
term with spontaneous membranes and I
5
This response is perplexing since obviously the doctor would have to stay in
the hospital if Venita were to have a C-section. Further, this testimony is
contrary to Dr. Hewitt’s testimony that when he examined Venita just two days
earlier no decision as to delivery had been made. Of course, Dr. Hewitt’s
admission that he thought Venita was in her 37th week of pregnancy when in
fact she was in her 39th week indicates that if a C-section were to be the
first option then it should have been scheduled on March 19, 1999, the 39th
week.
-10-
noted that she was a VBAC. I wrote
that I counseled her at length. She
was aware of the risk.
. . .
Q:
Okay. Do you know when Venita made a
conscious decision to have a VBAC, to
go into a trial of labor?
A:
When they told me to my face in that
room that that is what they desired. I
don’t know if she had made that before
she came into the hospital. I don’t
know if she had made that with Doctor
Hewitt. I don’t know when that had
been her major decision. All that
concerned me was that I knew – I sat
down on the side of her bed, talked to
her and her husband not briefly, but in
detail, mentioned the fact that her
uterus could rupture, even fetal death
can occur, possibility of transfusion,
infection – risk involved. Left the
room to let them think about it, walked
back in and they said they wanted to go
ahead with the trial of labor. That’s
when I knew her decision had been made.6
Dr. Fee further stated in her deposition taken on May 13, 2003,
as follows:
A:
I sat down on Ms. Harris’ bed after I
had reviewed her records at the desk
and checked her cervix. She was five
to six centimeters, in good labor,
completely thinned out, and the baby
was low in her pelvis. And I talked to
Ms. Harris and her husband that I
understood they were VBAC’ing when they
came in, but because I was the doctor
on call that night, I wanted to make
6
This testimony actually supports Venita’s claim that Dr. Hewitt had not
discussed with her the option of a C-section on March 19, 1999, since her
39th week of pregnancy would have dictated an immediate scheduling of the Csection.
-11-
sure that we were all on the same page
as far as the risks that that procedure
can have.
I told her that there can be a
need for a C-section, a quick Csection, that she had a good chance of
having a successful VBAC because of her
exam and the labor that she was in. I
told her the risks can include
bleeding, rupture of the uterus and
even fetal death. And I told that to
Ms. Harris and her husband sitting
there on her bed.
And I said, you make your
decision. If you want to proceed with
a vaginal delivery, I will be here by
your side the entire time of your
labor. And if you want a C-section, I
will be glad to perform that for you
also. And I said I’ll be back in a few
minutes; I’m going to go do some
paperwork. I left their room, left
them alone, and I came back later and
they felt very comfortable with their
decision.
. . .
Q:
Now, if she had been your patient from
the beginning of her pregnancy and
prenatal course, you would have sat
down and had that discussion with her
and her husband much earlier far before
they come into the hospital; is that
correct?
A:
Yes sir.
. . .
Q:
And I think you have already testified
in your first deposition that you don’t
know whether or not that had taken
place or not in this particular
situation, do you?
-12-
A:
I feel very strongly that it did.
Q:
And what are you basing that on?
A:
Because she came to the hospital
knowing exactly what she was going to
do. She told the nurse she was going
to have a VBAC, and that’s not a term
you pick up on the street. And I
believe that Dr. Hewitt has the
foresight and the knowledge to counsel
his patient regarding that. If she had
been a planned C-section, that would
have been scheduled already and on the
books.7
The trial of labor continued for approximately three
more hours and then Venita’s uterus ruptured, causing extreme
distress to the baby, and requiring Dr. Fee to perform an
emergency C-section.
When the baby was delivered, he had poor
tone and color and required artificial resuscitation.
The baby
and Venita were transferred to Vanderbilt University Children’s
Hospital ICU.
The baby died there on March 23, 1999, from
complications of “unexpected uterine rupture and asphyxia.”
On March 22, 2000, the appellants’ filed a pro se
complaint in the Warren Circuit Court against the doctors and
the Medical Center, claiming the doctors had been negligent in
the care they provided to Venita, deviating from “acceptable
7
This testimony also supports Venita’s claim that Dr. Hewitt had not
discussed the options of a VBAC or a C-section on March 19, 1999. Dr. Fee
indicates that since Venita was 39 weeks pregnant on March 19, 1999, then the
decision would have been made by that date and she was convinced that the
VBAC had been chosen, but Dr. Hewitt testified that on March 19, 1999, Venita
was only in her 37th week and that both options were still open to her.
-13-
standards of medical care” and causing Robert’s death.
The
doctors filed a response on April 7, 2000, and subsequently
filed several discovery requests.
On June 30, 2000, the
appellants obtained counsel to represent them.8
On December 12, 2000, the doctors deposed Dr. Resnick,9
pursuant to a notice by the appellants that Dr. Resnick would
serve as an expert witness in their case.
Dr. Resnick stated
that Venita initially saw him as a patient two or three times
post-birth, and then Venita requested that Dr. Resnick review
her medical records in regards to Robert’s death.
It was Dr.
Resnick’s opinion from reviewing the records and the depositions
of Dr. Hewitt and Dr. Fee that Venita did not meet the criteria
for a VBAC.
On July 23, 2001, the doctors filed their first motion
for summary judgment stating that since the appellants had
retained counsel, no amended pleadings had been filed on their
8
The appellants deposed all of the doctors’ identified experts, along with
the nurse and pediatrician who were on duty at the Medical Center and
assisted in the birthing process, as well as Dr. Hewitt’s and Dr. Fee’s
office staff. None of these individuals stated in their depositions that
either Dr. Hewitt or Dr. Fee had deviated from the standard of care in their
treatment of Venita or her child.
9
Dr. Resnick had been practicing in the fields of obstetrics and gynecology
for approximately 25 years. He practiced in Russellville, Kentucky, for two
years. It was during that time that Venita first heard of Dr. Resnick when
he was a guest on a radio talk show in Russellville. Dr. Resnick currently
lives and has a medical practice in Las Vegas, Nevada.
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behalf.10
On August 2, 2001, the appellants filed a response and
a motion for leave to file an amended complaint, along with a
copy of the amended complaint.
The trial court granted the
motion and the amended complaint was filed on August 6, 2001.
The appellants filed their response to the doctors’ motion for
summary judgment on August 13, 2001.
The trial court summarily
denied the doctors’ motion for summary judgment on September 17,
2001.11
On December 15, 2001, the appellants’ counsel deposed
Dr. Bruce Flamm,12 who had been listed by the doctors as an
expert witness in this case.
Dr. Flamm stated that he had
reviewed Venita’s medical history prior to 1999; the prenatal,
labor, and delivery records relating to Robert; the records from
Vanderbilt University Medical Center; and various depositions.
While Dr. Flamm was unable to testify concerning the substance
of any discussions between Venita and either of the doctors, he
10
The doctors argued that Venita could only have filed a pro se complaint on
her behalf and because the statute of limitations had run, the claims made by
Venita on behalf of Ben and the estate of Robert had expired.
11
This motion for summary judgment was partially renewed on February 28,
2002, in regards to Venita’s claims on behalf of Benjamin and the estate of
Robert. Although it is unclear from the record what the outcome of this
motion was, we must assume that it was ultimately denied.
12
Dr. Flamm worked as an obstetrician/gynecologist for Kaiser Permanente in
Riverside, California. He also served as the research chairman and a
clinical professional at the University of California at Irvine. He had
served as an expert witness in over 200 VBAC cases in the last decade.
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opined that Dr. Fee’s documented counseling alone would not meet
the standard of care they owed Venita.
On January 28, 2002, the appellants’ counsel deposed
Dr. Frank Boehm,13 who was listed by the doctors as an expert
witness in this case.
Dr. Boehm stated in his deposition that
he had reviewed all the medical records of Venita and the baby
from prenatal care through delivery, as well as Venita’s medical
records from the birth of her first child in 1983.
Dr. Boehm
acknowledged that “the real risk [in a VBAC] is uterine
rupture[,]” which would be “disastrous.”
He further testified
that “[t]he decision of whether to do a cesarean section and
delivery is a big issue” and “that it would be below the
standard of care to never mention [the risks of a VBAC] in the
prenatal course.”
After being continued twice, a jury trial was set for
November 24, 2003.
14
On August 15, 2003, the doctors filed a
notice to take another deposition of Dr. Resnick,15 which was
heard at the pretrial conference held on September 15, 2003.
13
Dr. Boehm served as director of maternal-fetal medicine at Vanderbilt
University Medical Center in Nashville, Tennessee, and had served as an
expert witness in several other VBAC cases.
14
Because the transcript of Dr. Resnick’s deposition had not been prepared,
on January 10, 2001, the doctors moved the trial court to continue the trial
scheduled for March 28, 2001. The motion was granted and the trial was
rescheduled for September 25, 2001.
15
The doctors explained the request was because two years had passed since
Dr. Resnick’s deposition had been taken, and the Medical Center had been
dismissed as a defendant since the earlier deposition.
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The appellants’ attorney stated in court on that date that if
the deposition was not arranged, then the appellants would not
call Dr. Resnick at trial.
The trial court entered an order on
September 22, 2003, requiring the appellants to produce Dr.
Resnick for the deposition, or he would not be allowed to
testify as an expert witness at trial.
The deposition set for
October 7, 2003, did not take place as Dr. Resnick failed to
appear.
The doctors, on October 10, 2003, filed a motion to
exclude Dr. Resnick as an expert witness and they renewed their
motion for summary judgment.
The doctors stated that because of
the appellants’ failure to produce Dr. Resnick for deposition,
the appellants were without any expert testimony to present at
trial.
The appellants filed a motion for partial summary
judgment based on the depositions of Dr. Hewitt, Dr. Fee, Dr.
Flamm, Dr. Boehm, and themselves, claiming they had established
that Venita’s consent was not informed.
On November 6, 2003, the trial court entered an order
1) denying the appellants’ motion for partial summary judgment,
2) granting the doctors’ motion to exclude Dr. Resnick as an
expert witness, and 3) granting the doctors’ motion for summary
judgment.
The appellants filed a motion to alter, amend, or
vacate the order on November 14, 2003, claiming that the trial
court had failed to consider, in a light most favorable to them,
the evidence which created an issue of fact regarding the
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doctors’ negligence.
The trial court denied the motion by order
entered on December 1, 2003, and this appeal followed.
Under Kentucky law, “[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.”16
The trial court must review the
pleadings, depositions, and discovery evidence to determine
whether summary judgment is proper.17
Since “factual findings
are not at issue,”18 an appellate court need not defer to the
trial court’s decision on summary judgment.
An appellate court
will review the issue de novo since it “involves only legal
questions and the existence of any disputed material issues of
fact.”19
The Supreme Court has stated that “[t]he proper
function for a 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 and against the movant.’”20
16
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996); Kentucky Rules of
Civil Procedure (CR) 56.03.
17
CR 56.03.
18
Barnette v. Hospital of Louisa, Inc., 64 S.W.3d 828, 829 (Ky.App. 2002).
19
Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky.App. 2001).
20
Paintsville Hospital Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985) (quoting
Roberson v. Lampton, 516 S.W.2d 838, 840 (Ky. 1974)). See also Steelvest,
Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
-18-
The term “impossible” is to be applied in a practical sense, not
in an absolute sense.21
However, summary judgment is not
considered a substitute for a trial, so the trial court must
review the evidentiary record not to decide any issue of fact,
but to determine if any real factual issue exists and whether
the non-movant can prevail under any circumstances.22
Moreover, “[t]he 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.”23
The movant
bears the initial burden of convincing the trial court by
evidence of record that there is no genuine issue as to any
material fact, which then shifts the burden to the party
opposing summary judgment.
“[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,”24 but the
threshold is quite low.25
In other words, the evidence presented
by the moving party in support of its summary judgment “must be
of such a nature that no genuine issue of fact remains to be
21
Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992).
22
Steelvest, 807 S.W.2d at 480.
23
Id.
24
Id. at 482.
25
Commonwealth, Transportation Cabinet, Dept. of Highways v. R.J. Corman
Railroad Co./Memphis Line, 116 S.W.3d 488, 498 (Ky. 2003).
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resolved.”26
Otherwise, summary judgment is improper even if the
party opposing summary judgment presents no contradicting
evidence.27
As stated earlier, the appellants’ claims against the
doctors are based on a lack of informed consent.
The law of
informed consent in Kentucky is codified in KRS28 304.40-320,29
26
Hartford Insurance Group v. Citizens Fidelity Bank & Trust Co., 579 S.W.2d
628, 631 (Ky.App. 1979).
27
Hartford, 579 S.W.2d at 631; Carter v. Jim Walter Homes, Inc., 731 S.W.2d
12, 14 (Ky.App. 1987).
28
Kentucky Revised Statutes.
29
KRS 304.40-320 provides:
In any action brought for treating, examining,
or operating on a claimant wherein the claimant’s
informed consent is an element, the claimant’s
informed consent shall be deemed to have been given
where:
(1)
The action of the health care provider in
obtaining the consent of the patient or
another person authorized to give consent
for the patient was in accordance with
the accepted standard of medical or
dental practice among members of the
profession with similar training and
experience; and
(2)
A reasonable individual, from the
information provided by the health care
provider under the circumstances, would
have a general understanding of the
procedure and medically or dentally
acceptable alternative procedures or
treatments and substantial risks and
hazards inherent in the proposed
treatment or procedures which are
recognized among other health care
providers who perform similar treatments
or procedures;
(3)
In an emergency situation where consent
of the patient cannot reasonably be
obtained before providing health care
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and is guided by “the accepted standard of medical . . .
practice among members of the profession with similar training
and experience[.]”30
Subsection (2) of KRS 304.40-320 deals
specifically with what a reasonable person should be told before
being deemed to have given informed consent, including
“substantial risks and hazards inherent in the proposed . . .
procedures[.]”
An action based on lack of informed consent “is
in reality one for negligence in failing to conform to a proper
professional standard . . . .”31
The general rule in a medical
malpractice case is that expert testimony will likely be
required to negate informed consent32 and to establish proximate
cause between the negligence and the injury.33
We first address the trial court’s exclusion of Dr.
Resnick’s testimony.
It is undisputed that appellants’ counsel
stated at a hearing that if Dr. Resnick was not produced for a
second deposition, then he would not be called to testify in
services, there is no requirement that a
health care provider obtain a previous
consent.
30
Id.
31
Holton v. Pfingst, 534 S.W.2d 786, 788 (Ky. 1975).
32
Keel v. St. Elizabeth Medical Center, 842 S.W.2d 860, 862 (Ky. 1992); see
also Hawkins v. Rosenbloom, 17 S.W.3d 116, 119 (Ky.App. 2000).
33
Sakler v. Anesthesiology Associates, P.S.C., 50 S.W.3d 210, 214 (Ky.App.
2001). (As the Court in Perkins, 828 S.W.2d at 654-55, noted, there are
exceptions to the rule. However, since the appellants are relying on the
doctors and the doctors’ experts, they do not need to meet one of the
exceptions to prove their case.)
-21-
this case.
The trial court entered an order providing that Dr.
Resnick would not be allowed to testify at trial if the second
deposition was not given.
It is undisputed that Dr. Resnick was
not produced; and as this case stood in 2003, it was not an
abuse of discretion for the trial court to prohibit him from
testifying at the trial scheduled for November 24, 2003.
However, the fact that Dr. Resnick was not allowed to testify
should not have prohibited the case from going to the jury.34
Every expert who testified in this case opined as to
the proper standard of care required to establish informed
consent.
Thus, the appellants can establish the standard of
care owed Venita without Dr. Resnick’s testimony.
Further, a
determination of whether the standard of care was breached by
Dr. Hewitt and/or Dr. Fee does not require expert testimony.
The standard of care in this case is that Dr. Hewitt and Dr. Fee
should have informed Venita of the risks and the benefits of
undergoing a C-section or VBAC prior to her giving birth to
Robert.
Both Dr. Hewitt and Dr. Fee stated that they fully
explained the risks versus the benefits of both procedures to
Venita.
Venita testified that Dr. Hewitt never gave her an
explanation concerning the procedures; and that when Dr. Fee
34
Since we are reversing the trial court’s granting of summary judgment, the
question of Dr. Resnick’s availability in October 2003, is moot. On remand,
if the appellants should desire to call Dr. Resnick as an expert witness, the
trial court will need to assess the status of discovery in light of the new
trial date.
-22-
gave her an explanation, she was in labor and under such stress
that she was incapable of making an informed decision.
This case is similar to Merker v. Wood,35 where the
former Court of Appeals reversed the trial court’s granting of a
directed verdict to the defendant doctor.
Mrs. Merker had
claimed that Dr. Wood had been negligent by failing or refusing
to see her for a follow-up X-ray for a broken leg.
Dr. Wood
denied this failure and claimed that Mrs. Merker failed to
present herself for examination.
The Court of Appeals noted
that the testimony of Dr. Wood and Dr. Hudson36 had established
that the standard of care for “orthopedic surgeons in Louisville
in this character of injury requires that an X-ray check of the
patient should be made frequently after the fracture is
reduced.”37
The Court then stated:
It is patent there is a conflict
between the testimony of the daughter and
that of Dr. Wood on this very important
telephone conversation of August 24th. If
the daughter’s testimony is believed, then
Dr. Wood was negligent in not directing that
Mrs. Merker return to the hospital without
delay for an X-ray examination to determine
whether the cast had slipped and whether the
fractured members were in apposition or were
out of alignment. If the testimony of Dr.
35
307 Ky. 331, 210 S.W.2d 946 (1948).
36
It is unclear from the case if Dr. Hudson was an expert for the plaintiff
or the defendant, but it does not matter, since it is clear that Dr. Wood’s
testimony alone would have been sufficient evidence to establish the standard
of care.
37
Merker, 307 Ky. at 337.
-23-
Wood is believed, then he was not negligent
because he testified he directed the
daughter to bring her mother to the hospital
immediately for a check up. Thus we see
there is an issue of fact for the jury’s
determination.
. . .
Dr. Sacklette testified that he
contacted Dr. Wood and told him that Mrs.
Merker needed attention; that Dr. Wood
assured him there was no danger and he would
take care of Mrs. Merker, but that it would
not be necessary for him to see her until
after the six weeks were up.
. . .
Thus we see there is an issue between
Dr. Sacklette and Dr. Wood on a material
point; also, between Dr. Wood and Mrs.
Merker’s daughter as to whether he would see
his suffering patient within a reasonable
time after notice from her daughter that she
needed his attention. If the jury should
reject the testimony of Dr. Wood and accept
that of Dr. Sacklette relative to his
conversation with Dr. Wood, or accept that
of Mrs. Merker’s daughter relative to
returning her mother to the hospital,38 then
Dr. Wood would be guilty of negligence and
malpractice according to the standard he,
himself, set as to the ordinary medical or
surgical skill applied to the handling of
such a case[.]39
Likewise, in the case before us the standard of care
has been established as a matter of law.
38
The disputed issue in
We note that Dr. Sacklette was testifying on this point as a fact witness
and not as an expert. Further, by using “or” the Court clearly indicated
that Mrs. Merker’s daughter’s testimony alone was sufficient to get this
disputed fact to the jury.
39
Merker, 307 Ky. at 334-35.
-24-
this case is one of fact and it centers on the conflicting
evidence as to whether the doctors properly obtained informed
consent from Venita.
It will be the jury’s role to determine
whether informed consent was properly given.
Therefore, summary
judgment was erroneously granted to the doctors, and the
appellants were properly denied summary judgment.
Thus, we
reverse that portion of the trial court’s order granting summary
judgment to the doctors, affirm that portion of the order
denying summary judgment to the appellants, and hold the issue
concerning Dr. Resnick’s testimony to be moot.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT FOR
APPELLANTS:
Thomas A. Noe III
Rusellville, Kentucky
BRIEFS FOR APPELLEES:
David F. Broderick
P. Kevin Hackworth
Bowling Green, Kentucky
ORAL ARGUMENT FOR APPELLEES:
David F. Broderick
Bowling Green, Kentucky
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