TACKETT (JAMES F.) VS. APPALACHIAN REGIONAL HEALTHCARE, INC. , ET AL.

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RENDERED: JULY 18, 2008; 2:00 P.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2007-CA-000720-MR JAMES F. TACKETT v. APPELLANT APPEAL FROM PERRY CIRCUIT COURT HONORABLE JOHN DAVID CAUDILL, SPECIAL JUDGE ACTION NO. 04-CI-00109 APPALACHIAN REGIONAL HEALTHCARE, INC. d/b/a HAZARD APPALACHIAN REGIONAL HOSPITAL AND MUKUT SHARMA, M.D. APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, CHIEF JUDGE; NICKELL, JUDGE; GRAVES, SENIOR JUDGE. COMBS, CHIEF JUDGE: James F. “Chum” Tackett appeals from a summary judgment entered against him by the Perry Circuit Court concerning his medical malpractice claim against Mukut Sharma, M.D., and Hazard Appalachian Regional Hospital, d/b/a Appalachian Regional Hospital, Inc. (ARH). After our review, we affirm. On February 19, 2003, Tackett underwent surgery for a torn rotator cuff in his right shoulder at ARH. Dr. Mukut Sharma performed the surgery. Tackett was released from the hospital later that night. While returning home, he became nauseated and noticed that he was bleeding from a wound on his right shoulder where a drainage tube had been placed during surgery. According to Tackett, there was “blood all over the side of my clothes and down on my pants and everything.” Tackett was then driven to a hospital in Whitesburg. The bleeding was stopped and he stayed overnight. He did not receive a blood transfusion while at the Whitesburg hospital. Tackett claims that he experienced total vision loss in his right eye on the day following this incident. He had had problems with his vision prior to the surgery and had been receiving treatment for severe non-proliferative diabetic retinopathy in both eyes for several months beforehand. According to Dr. Jack Hollins, Tackett’s ophthalmologist, the disease is brought on by diabetes and involves a weakening of blood vessels behind the retina. This weakening often causes a leakage of blood, fluid, water, and protein from the blood vessels in the eyes that can result in impaired vision. The condition was particularly pronounced in Tackett’s right eye and had worsened in the year prior to his shoulder surgery. On February 19, 2004, Tackett filed suit against Dr. Sharma and ARH in Perry Circuit Court. He alleged that the defendants had breached their -2- respective standards of care by negligently discharging him before his surgery wound had healed. He attributes the total vision loss in his right eye to the blood loss he suffered following his shoulder surgery. On August 21, 2006, Sharma moved for summary judgment. ARH filed its own motion for summary judgment on October 18, 2006. On January 5, 2007, the trial court entered an order granting Sharma’s motion for summary judgment. The order provided as follows: This matter came before the Court upon motion of the Defendant, Mukut Sharma, M.D., by counsel for an order granting summary judgment herein. The Court has reviewed the file in its entirety and makes the following findings: 1. This case has progressed for over thirty (30) months; 2. The plaintiff has failed to provide an expert as to liability and/or causation; 3. The plaintiff’s treating physician, Dr. Hollins indicates that the plaintiff suffers from diabetic retinopathy and that is the cause of his vision loss; 4. The plaintiff indicated that Dr. Arroz would be testifying against Dr. Sharma and after being deposed it is apparent to the Court that Dr. Arroz will not be testifying against Dr. Sharma; and, 5. Lastly, the plaintiff in his deposition indicates that Dr. Sharma did nothing wrong. Based upon the foregoing, the Court finds the defendant’s motion well taken and hereby dismisses the claims of the plaintiff against Mukut Sharma, M.D. with prejudice. -3- Tackett filed a motion to alter, amend, or vacate the court’s order of summary judgment on January 12, 2007. This motion was denied in an order entered on March 13, 2007. On the same day, the court entered an order granting the motion of ARH for summary judgment on the grounds that there was no genuine issue of material fact and that ARH was entitled to judgment as a matter of law. Tackett filed a notice of appeal as to both summary judgment orders on April 3, 2007. On appeal, Tackett argues that the trial court erred in granting the defendants’ motions for summary judgment. As a general rule: [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, 916 S.W.2d 779, 781 (Ky.App. 1996); Kentucky Rules of Civil Procedure (“CR”) 56.03. Our review is de novo since we analyze questions of law rather than of fact. Blevins v. Moran, 12 S.W.3d 698, 700 (Ky.App. 2000). We must view the record in a light most favorable to the party opposing summary judgment, and all doubts are to be resolved in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is appropriate only when “it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor.” Id. The issue of impossibility is viewed in a realistic, practical sense -- not in an absolute, abstract analysis. Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992). Accordingly: -4- [t]he inquiry should be whether, from the evidence of record, facts exist which would make it possible for the non-moving party to prevail. In the analysis, the focus should be on what is of record rather than what might be presented at trial. Welch v. American Publishing Co. of Kentucky, 3 S.W.3d 724, 730 (Ky. 1999). Consequently, a party opposing a motion for summary judgment cannot defeat that motion without presenting at least some affirmative evidence that there is a genuine issue of material fact that warrants a trial. O’Bryan v. Cave, 202 S.W.3d 585, 587 (Ky. 2006); Steelvest, 807 S.W.2d at 482. Liability for medical negligence generally requires expert medical testimony to establish the applicable standard of care, its breach, and consequent causation of injury. Green v. Owensboro Medical Health System, Inc., 231 S.W.3d 781, 783 (Ky.App. 2007); Andrew v. Begley, 203 S.W.3d 165, 170 (Ky.App. 2006). There are two exceptions to this rule: The first is where the negligence and injurious results are “so apparent that laymen with a general knowledge would have no difficulty in recognizing it.” The second is where other medical testimony provides an adequate “‘foundation for res ipsa loquitur on more complex matters.’” Green, 231 S.W.3d at 783-84 (Internal citations omitted). The second exception is illustrated by cases in which, for example, a surgeon leaves a foreign object in a patient’s body or removes the wrong limb or organ. Andrew, 203 S.W.3d at 170; see also Perkins v. Hausladen, 828 S.W.2d 652, 655 (Ky. 1992). Another example of the second exception is an admission by a defendant doctor of a medically -5- technical nature from which negligence can be inferred. Andrew, 203 S.W.3d at 170-71; see also Perkins, 828 S.W.2d at 655; Jarboe v. Harting, 397 S.W.2d 775, 778 (Ky. 1965). Tackett does not argue that either of these exceptions applies here. We are not persuaded that either exception is involved since he has neither alleged nor established any facts from which negligence and causation can be inferred. The circumstances and the claim in this case necessitate evidence in the form of specialized medical testimony. An expert was indeed required. The failure to produce an expert where one is required is often a basis for entry of summary judgment in medical negligence cases. “To survive a motion for summary judgment in a medical malpractice case in which a medical expert is required, the plaintiff must produce expert evidence or summary judgment is proper.” Andrew, 203 S.W.3d at 170. Tackett has failed to produce any expert testimony whatsoever. Instead, he cites only to a single portion of deposition testimony from Dr. Hollins, his treating ophthalmologist, which indicated that a transient decrease in blood pressure and blood could cause a worsening of the swelling in the eyes. When viewed in a light most favorable to him, Tackett argues that Dr. Hollins’s testimony is proof that his eye condition worsened from a severe and sudden loss of blood, thus rendering summary judgment inappropriate. Dr. Hollins described diagnostically what may have transpired in Tackett’s case. However, Tackett failed to produce evidence as to the medical standard of care at issue to substantiate that Dr. Sharma and ARH may have -6- breached their respective standards of care linking them to Tackett’s eye injury. The record shows that only two physicians were deposed in this matter, neither of whom rendered any sort of opinion as to whether the defendants were negligent. Dr. Vincent Arroz, Tackett’s family doctor, was identified by Tackett as an expert witness in discovery responses, but he was unaware that he had been listed in that capacity. During his deposition, Dr. Hollins expressly declined to render an opinion that a standard of care was breached with respect to Tackett’s medical treatment. Dr. Hollins also expressed no opinion as to whether Dr. Sharma and ARH had breached their respective standards of care during his deposition. This case was litigated for almost three years prior to entry of summary judgment. During this time, Tackett failed to produce any expert medical testimony that attributed his vision loss to any act of negligence on the part of the defendants. In the absence of such testimony, we are compelled to conclude that the trial court did not err in ordering that summary judgment be granted in this case. See Andrew, 203 S.W.3d at 170. The judgment of the Perry Circuit Court is affirmed. ALL CONCUR. -7- BRIEF FOR APPELLANT: James W. Craft, II Whitesburg, Kentucky BRIEF FOR APPELLEE APPALACHIAN REGIONAL HEALTHCARE, INC.: Michael J. Schmitt Paintsville, Kentucky -8-

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