CARMICLE (LINDA) VS. CASEY COUNTY HOSPITAL , ET AL.
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RENDERED: DECEMBER 5, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NOS. 2007-CA-001171-MR
AND
2007-CA-001924-MR
LINDA CARMICLE
v.
APPELLANT
APPEAL FROM CASEY CIRCUIT COURT
HONORABLE JAMES G. WEDDLE, JUDGE
ACTION NO. 03-CI-00208
CASEY COUNTY HOSPITAL;
EDWARD GRIMBALL, M.D.;
JARED WILSON, M.D.;
HOUSAM HADDAD, M.D.;
WESTLAKE REGIONAL HOSPITAL;
EKRAMUL KABIR, M.D.;
UNKNOWN DOCTORS; AND
UNKNOWN MEDICAL CARE
PROVIDERS
OPINION
AFFIRMING IN PART,
REVERSING AND REMANDING IN PART
** ** ** ** **
BEFORE: ACREE, CLAYTON, AND KELLER, JUDGES.
APPELLEES
KELLER, JUDGE: Linda Carmicle (Carmicle) appeals from the circuit court’s
order granting the motions for summary judgment filed by Casey County Hospital
(Casey County), Edward Grimball, M.D. (Grimball), Jared Wilson, M.D. (Wilson),
Housam Haddad, M.D. (Haddad), Westlake Regional Hospital (Westlake),
Ekramul Kabir (Kabir), M.D., Unknown Doctors, and Unknown Medical Care
Providers (hereinafter referred to as the Appellees). Carmicle argues she provided
to the Appellees the names and opinions of experts sufficient to establish a prima
facie case that the Appellees had violated the applicable standards of care and the
circuit court’s summary judgment was therefore inappropriate. The Appellees
argue that Carmicle failed to disclose the identity of or the opinion of any expert
calling into question the care they provided; therefore, justifying the court’s
summary judgment. For the reasons set forth below, we affirm in part and reverse
and remand in part.
FACTS
On November 27, 2002, Carmicle was involved in a motor vehicle
accident. Following that accident, she received treatment at Casey County and
Westlake for complaints of pain in her neck, back, and legs. During the course of
her treatment, Carmicle underwent cervical spine x-rays. After her release from
the hospital, Carmicle sought additional treatment with chiropractor Dr. Erica
Montgomery (Dr. E. Montgomery), who took additional cervical spine x-rays,
which revealed a fractured vertebra. According to Carmicle, Dr. E. Montgomery
advised her the x-rays from the hospital did not extend to the level of the fracture.
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Because of the fracture, Dr. E. Montgomery referred Carmicle to Dr. Yamamoto, a
neurosurgeon. Dr. Yamamoto also noted the cervical spine fracture and ultimately
performed surgery.
After her discharge from the hospital, Carmicle continued to suffer
from low back and leg pain. She ultimately came under the care of Dr. Moore,
who treated her for her lower extremity complaints. According to Carmicle, Dr.
Moore stated she suffered a hematoma and sheer force injury to her legs and,
because those injuries were not initially treated, they were permanent.
On November 26, 2003, Carmicle filed a complaint alleging the
appellees were negligent in providing medical care following her motor vehicle
accident. Specifically, Carmicle alleged the appellee physicians failed to take xrays that would have revealed a fracture to her lower cervical spine and failed to
treat her for complaints of back and right leg pain. As to the appellee hospitals,
Carmicle alleged they failed to establish or follow proper protocols. Finally,
Carmicle alleged the staff members of the hospitals failed to consult with
appropriate specialists or to perform necessary tests.
The Appellees timely filed answers to Carmicle’s complaint and
propounded interrogatories and requests for production of documents. In their
interrogatories, the Appellees asked Carmicle to identify her experts pursuant to
Kentucky Rules of Civil Procedure (CR) 26. The Appellees filed several motions
to compel and Carmicle ultimately responded to the Appellees’ interrogatories.
However, the Appellees took exception to the completeness of those responses and
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filed multiple motions for summary judgment. Following several hearings and
extensions of time so Carmicle could supplement her answers to interrogatories
and/or provide the Appellees with additional information, the circuit court granted
summary judgment to the Appellees. The responses by Carmicle to the Appellees’
interrogatories are the crux of this appeal; therefore, we will set them forth as
necessary in detail below.
Answers to Dr. Grimball’s Interrogatories
On September 13, 2004, Carmicle filed responses to Dr. Grimball’s
Interrogatories. In pertinent part, Carmicle stated Dr. Grimball failed to take xrays sufficient to identify a fracture in her lower cervical spine and failed to
respond appropriately to her complaints of leg pain. In terms of expert opinions,
Carmicle stated:
Dr. Yamamoto is expected to testify regarding the
necessity of the surgery he performed on my neck and
regarding his opinions as to the deviation from the
normal standard of care by the physicians and other
medical care providers who failed to recognize my
problems and who failed to properly diagnose my
problems.
...
Dr. Yamamoto generally led me to believe that all
of my physicians who saw me and treated me were at
fault for not giving me proper and timely treatment and
for not doing further testing early on in my treatment.
Dr. Yamamoto did not specifically address whether and
to what extent Dr. Grimball deviated from his standard of
acceptable care.
Carmicle also stated:
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Dr. Moore is expected to testify regarding the necessity
of the treatment he has given to me and regarding future
surgeries which will be necessary and regarding the
permanency of my injuries and regarding the fact that the
injuries to my legs should have been addressed much
earlier in my treatment. . . . Dr. Moore will also say that
my leg injuries should have been discovered earlier than
they were discovered and should have been attended to
earlier than they were attended to, and I believe that Dr.
Moore will probably testify that he believes that the
failure of all my physicians, particularly those in my
early care and treatment, to address my leg injuries and to
treat my leg injuries and to seek other treatment for my
leg injuries was a deviation from the proper standard of
care.
...
Moreover, Dr. Moore has led me to believe,
without specifically mentioning the names of any
particular doctors, that my leg injuries and other similar
injuries should have been discovered early on an [sic]
should have received treatment far sooner that [sic]
treatment was given for my leg injuries.
Answers to Haddad’s Interrogatories
In general, Carmicle stated, because of the nature of her injuries, Dr.
Haddad should have been “on notice that I had greater problems and injuries than
were diagnosed.” In particular, Carmicle noted the x-rays taken during her
treatment at the hospitals did not show her fractured vertebra. Regarding specific
expert witnesses, Carmicle identified Dr. Yamamoto and Dr. Moore and indicated
that she expected those physicians to testify as set forth above.
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Carmicle also stated she anticipated Dr. Erica Montgomery, her
treating chiropractor, Dr. Yamamoto, and Dr. Moore would testify:
that the failure to diagnose my conditions and the failure
to timely and properly treat my conditions and the failure
to properly conduct other tests and conduct other x-ray
examinations and the failure to obtain consultations from
specialists and the failure to send me to specialists for
further testing and further treatment were deviations from
the proper standards of care in my particular situation.
Answers to Wilson’s Interrogatories
In general, Carmicle stated she intended to call Drs. Yamamoto and
Moore as witnesses. She set forth their anticipated testimony in terms consistent
with those used in response to the interrogatories by Haddad and Grimball.
Answers to Kabir’s Interrogatories
Carmicle identified Dr. J. Tucker Montgomery (Dr. T. Montgomery)
as her only trial expert witness and referred to his report for a recitation of his
opinions. Dr. T. Montgomery’s opinions are set forth below.
Answers to Westlake and Casey County Interrogatories
Carmicle noted hospital personnel ignored or did not appropriately
respond to her complaints of pain in her neck, low back, and lower extremities.
With regard to a specific expert witness, Carmicle identified Dr. Jeffrey Silverman
(Dr. Silverman), whose opinions are set forth below.
General Responses/Supplements to Interrogatories
In addition to the above specific responses to interrogatories, Carmicle
filed medical records from Drs. Yamamoto, E. Montgomery, Moore, Burandy,
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Guy, West, and from Casey County who treated Carmicle after her release from
the hospital. Those records chronicle the physicians’ treatment of Carmicle but do
not directly address any issues with regard to standard of care or breach of any
standard of care.
As noted above, Carmicle identified Dr. T. Montgomery and Dr.
Silverman as expert witnesses. In his report, Dr. T. Montgomery stated emergency
room physicians should obtain x-rays that include the entire cervical and the upper
thoracic spine when a patient has a suspected neck injury. According to Dr.
Montgomery’s report, the Casey County physicians “failed to evaluate Linda
Carmicle using standard and available modalities and for that reason, her C7 burst
fracture was not discovered, evaluated and referred to the appropriate specialist for
stabilization/treatment.” As to Grimball, Wilson, and Haddad, Dr. Montgomery
stated they were “obligated to obtain and understand the appropriate history from
Linda Carmicle and appropriately examine and order objective tests involving her
cervical spine.” Dr. Kabir, the radiologist who interpreted Carmicle’s x-rays,
either did not have appropriate film quality to see C7-T1
or in the alternative, misinterpreted the cervical spine in
Linda Carmicle who had a history of a motor vehicle
accident and was subjected to multiple other films
including skull, lumbar spine, AP pelvis, right tibia and
fibula, thoracic spine, and right wrist. It is my opinion
that Dr. Kabir therefore violated the standard of care.
Finally, Dr. Montgomery stated, “[g]iven the injury that she sustained, the standard
of care mandated immediate referral to a neurosurgical specialist. This was not
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done by any of these physicians who violated the recognized standard of care and
Linda Carmicle suffered from that delayed treatment.”
The Appellees took Dr. T. Montgomery’s deposition. In pertinent
part, he testified he reviewed Carmicle’s deposition testimony and the medical
records forwarded to him by Carmicle’s attorney. He had not reviewed the
cervical spine x-rays taken when Carmicle was admitted to Casey County and had
not reviewed any testimony by any of the Appellees.1 The following testimony by
Dr. Montgomery was relied on by the Appellees in support of their motions for
summary judgment.
Q: Back on the record. Dr. Montgomery, are you
able to within a reasonable degree of medical probability
render or level criticisms against physicians involved in
this case without having read those physicians’
depositions and without having a copy of the x-ray film
at issue in this case, the November 27, 2002, cervical xray? Do you feel like you can do that?
A: No. It would be far better for me to have
statements that I could read and also the x-ray. You
know, I am inferring quite a bit, as you know, from the
records, which is all I need.
Q: That’s the fairest way to do it as far as the
physicians concerned, to have their actual deposition
[sic] where they can discuss exactly what they did and
how they were involved in the case; is that fair to say?
A: Sure. Sure.
Q: And that’s the best way to give opinions when
you’re deciding to give opinions in a case?
A: Sure.
1
Carmicle has not taken any depositions of any of the physicians or of any hospital personnel.
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...
Q: [D]oes the same answer apply to [Dr. Kabir] in
that not having heard what he has to say about the case,
not having seen a deposition of his, and not having had
the film that he reviewed, do you think it would be fair
for you to give an opinion against him or for him under
those circumstances?
A: Correct. No.
Q: I understand . . . from your testimony, Doctor, that
you do not give final opinions in this case within a
reasonable amount of probability without benefit of
reviewing the cervical x-ray and the depositions of the
physician doctors; correct?
A: Correct.
...
Q: In reading Dr. Yamamoto’s records, was it any
difficulty on your part in seeing that Dr. Yamamoto
quickly saw a problem at least in his opinion in the
November 2002 film, cervical spine series?
A: That’s the way I interpret it, yes, sir.
Q: And was it also your understanding that he told Ms.
Carmicle that there was a problem and that she needed to
have more x-rays?
A: That’s what I understand.
With regard to the hospitals, Dr. Montgomery testified as follows:
Q: [Y]our report contains opinions whether we call them
tentative or not, as to either probable or possible failures
or omissions on the part of several individuals; correct?
A: Yes.
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Q: Okay. It doesn’t contain any opinions as to any
probable or possible omissions by the hospitals or their
staffs other than those individuals that you have named in
the report; true?
A: True.
Q: Are you prepared to render any such opinions?
A: Well, I don’t have anything to go on other than the
records, so I don’t have anything to say about the, quote,
hospital.
Q: Okay.
A: Now, if – let me just flesh that out a little bit. If, for
example, somebody is employed by the hospital that, you
know, I focused on, I suppose there might be some
linkage there. But again, I don’t know anything that
went wrong at the hospital, for example, that did the CT.
I understand the lady had to be transferred to another
facility for a CT and back. I mean, I can’t come up with
anything there, if that’s part of this. I don’t know if that
hospital has been pulled in.
As far as this hospital, meaning Casey County
Hospital, you know, I’m not a nurse obviously. I’m not
another type worker that would be able to pass judgment
on a nonmedical person. So, you know, I don’t have a
problem there. I mean, I don’t have a perspective of any
– that a nurse could have done wrong, et cetera. So if
that kind of answers your question, that’s where I am
coming from.
Dr. Montgomery further testified, if discovery revealed anything regarding hospital
policies, he might be able to comment.
In a supplemental answer, Carmicle stated Dr. Montgomery had
reviewed copies of x-ray films supplied to her by Casey County. Additionally,
Carmicle stated Dr. Montgomery:
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will testify generally that any and all of the plaintiff’s
medical care providers should have been aware, based
upon the plaintiff’s continued complaints and based upon
the condition of the plaintiff and based upon the
plaintiff’s medical chart and medical records generated
by her medical care providers and generated at the
hospital, that the plaintiff needed additional diagnostic
testing and needed additional treatment and needed a
clarification of the findings on the x-ray films and needed
additional MRI Scans or CT Scans or other testing in
order to determine the cause of the continued problems.
Moreover, Dr. Montgomery will generally testify that the
appropriate standard of care was not met by any
radiologist who failed to obtain appropriate x-ray films of
the plaintiff’s anatomy and of the injured parts of the
plaintiff’s spinal column, and the appropriate standard of
care was not met by any medical care provider who
failed to appreciate the degree of the injury to the
plaintiff and who failed to do additional testing and who
failed to give additional treatment in order to determine
the cause of the plaintiff’s continued complaints. In
addition, Dr. Montgomery will generally testify that each
and every medical care provider who participated in the
care and treatment of the plaintiff on the occasion in
question should have checked or double-checked the xray films and/or should have consulted with additional
medical care providers so as to determine the cause of the
plaintiff’s continued complaints in the various parts of
her body and so as to lessen the risk of additional injury
to the plaintiff and so as to alleviate the plaintiff’s pain
and suffering, and should have requested or ordered
additional testing and/or additional studies to be done.
Carmicle reiterated that Dr. T. Montgomery would testify that the initial x-rays
should have encompassed her entire cervical spine. Finally, Carmicle stated that
Dr. T. Montgomery would base his opinions on his training, experience, and
education.
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In his affidavit, Dr. Silverman stated he “looked over various medical
information pertaining to Linda Carmicle.” Based on his review of that
information, Dr. Silverman stated:
If it is correct that the initial imaging studies done on
Linda Carmicle’s neck failed to show the vertebral
bodies below C-5 in her neck, and if it is true that Linda
Carmicle did, in fact, sustain a fracture of the C-7
vertebral body in the motor vehicle accident of
November 27, 2002, and if it is true that Linda Carmicle
sustained a substantial trauma to her back and neck in the
motor vehicle accident . . . , and if it is true that Linda
Carmicle continued to report during her hospital stay at
the Casey County Hospital that she was experiencing
pain and symptoms in her neck and shoulder region
during the couple of weeks she was in the Casey County
Hospital after the accident . . . , and if it is true that Jared
Wilson and Edward Grimball and Housam Haddad and
physicians of the Casey County Hospital participated in
the diagnosis and care of Linda Carmicle after the said
motor vehicle accident, and if it is true that each of these
physicians had access to the charts and the records and
the films and the reports on Linda Carmicle during her
hospitalization, then I am of the firm, considered opinion
that Dr. Edward Grimball and Dr. Jared Wilson and Dr.
Housam Haddad and Dr. Ekramul Kabir and the
emergency room physician or physicians at the Casey
County Hospital and any other physicians of the Casey
County Hospital who may have participated in the initial
care of Linda Carmicle fell below accepted standards of
medical care in at least the following manners:
a. They should have ordered more special
tests and more imaging studies.
b. They should have engaged in more
follow-up care knowing that Linda
Carmicle had sustained a substantial
traumatic injury to her neck and upper
back region.
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c. They should have engaged in substantial
follow-up questions and substantial
follow-up care knowing that Linda
Carmicle was continuing to complain of
pain and problems in her neck region and
in her upper back region.
d. They should have recognized that a
potential, undiagnosed problem existed.
e. They should have carefully checked the
charts and records and the x-ray films and
any available x-ray reports and any
available imaging studies and reports to
learn that the vertabrae in the neck were
not shown on the initial x-ray films.
f. They should have consulted each with the
other and formulated a treatment plan to
learn the cause of the continued pain and
continued symptoms in Linda Carmicle.
Dr. Silverman stated Dr. Kabir:
fell below the accepted standard of medical care in the
treatment of Linda Carmicle for the reason that he did not
make any specific notation on the fact that the vertebra at
C-6 and the vertebra at C-7 were not appreciated;
moreover, there was nothing noted on the official
radiology reports that the studies themselves were suboptimal; moreover, there was nothing noted on the
official radiology reports that the lower cervical spine
was not optimally assessed.
Dr. Silverman also stated:
all the physicians who participated and hospitals which
participated in the care of Linda Carmicle following the
motor vehicle accident . . . should have done more than
they did to learn about her injuries and to diagnose her
injuries and to lessen the pain from her injuries and to get
additional medical treatment for Linda Carmicle in the
care of the fractured vertebra at C-7.
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In a supplemental answer, Carmicle stated Dr. Silverman would
testify he reviewed copies of the x-rays provided by the hospital to Carmicle. In
that supplement, Carmicle at length stated Dr. Silverman would testify consistent
with his affidavit, the x-ray films were not of good quality, and the films did not
adequately show the fractured vertebra. Carmicle noted that Dr. Silverman would
base his testimony on his training, experience and understanding of the facts.
In her witness list, Carmicle also identified Drs. John Shershow and
John Hyde as expert witnesses. Carmicle stated Dr. Shershow would testify:
regarding the rules and procedures applicable to hospitals
in general as such hospitals work with physicians and as
such hospitals seek to oversee medical care providers
who see patients at hospitals. He is also expected to
testify regarding all aspects of hospital administration
and staffing and quality of care required. He is also
expected to testify as to hospital standards applicable in
the care of Linda Carmicle. He is further expected to
testify regarding physician credentialing and medical
quality assessment. His testimony is expected to point
out to the jury the occasions on which the hospitals and
the medical care providers who attempted to provide care
for Linda Carmicle fell below the standard of care and as
to the occasions on which the hospitals and the medical
care providers who attempted to give care to Linda
Carmicle at the hospitals met the appropriate standards of
care.
Carmicle stated Dr. Hyde would testify:
regarding his impressions or opinions as to the adherence
to standards of healthcare administration in the care of
Linda Carmicle. He is further expected to testify as to
the occasions on which the standards of care were not
met and when they were met with respect to the handling
of Linda Carmicle’s treatment at the two hospitals in
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question. He is further expected to testify regarding the
occasions on which the medical care providers did not
provide appropriate treatment, under applicable
standards, for Linda Carmicle. He is further expected to
testify regarding the standard by which an emergency
room physician and other physicians who attempt to
provide care to patients through hospitals fell below
appropriate standards in the treatment of Linda Carmicle
with respect to the events mentioned in the complaint and
in the evidence.
Order on Summary Judgment
On May 4, 2007, the circuit court entered an Order granting summary
judgment to the Appellees.2 In its order the court stated:
[t]he procedural history as it relates to Plaintiff’s efforts
to disclose experts is critical to the Court’s decision. The
record reveals that the Plaintiff was involved in a single
motor vehicle accident on November 27, 2002 in Casey
County and was taken to the Casey County Hospital for
treatment. In her Complaint filed on November 26, 2003
she alleges generally that the Defendants herein breached
the standard of care with respect to their evaluation and
treatment of her. All Defendants served proper discovery
that included requests for the disclosure of experts the
Plaintiff expected to call at the trial of this matter
pursuant to CR 26.02(4). The Plaintiff’s first disclosure
of experts was served on September 30, 2004 and listed a
single expert, Dr. Tucker Montgomery. The Defendants
took the deposition of Dr. Montgomery on October 13,
2005 during which he revealed that he had not been
provided with the x-rays at issue and without benefit of
those x-rays and the depositions of the Defendant
doctors, (which have never been taken by the Plaintiff),
he could not give any opinions within the realm of
reasonable medical probability. Following that
deposition the Defendants filed their first Motion for
2
We note the circuit court inadvertently omitted Dr. Kabir from the order granting summary
judgment. The court corrected that omission by subsequent order on August 14, 2007. The
omission of Dr. Kabir from the initial order has no bearing on this appeal and we will treat the
language from the initial order granting summary judgment as applicable to all of the Appellees.
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Summary Judgment and in the alternative to compel
pursuant to CR 37 which was heard on July 10, 2006.
Although the Court found at that time that the Plaintiff’s
disclosure was inadequate it denied Summary Judgment
but pursuant to CR 37 ordered the Plaintiff to supplement
her expert disclosures. On November 10, 2006 the
Plaintiff served her “Listing of Expert Witnesses” which
again listed Dr. Montgomery and attempted to add
additional experts. Following receipt of this listing the
Defendants moved again for Summary Judgment and a
Motion was heard on February 23, 2007. In an Order
entered on March 8, 2007 the Court found that the
Plaintiff’s expert disclosure was still inadequate but again
granted additional time, until March 28, 2007, to
supplement the disclosures. On that date Plaintiff served
a pleading which purported to supplement her disclosures
but referenced only Drs. Montgomery and Silverman.
The Defendants moved for summary judgment for a third
time and this Motion was heard on April 23, 2007.
Based upon this review of the record and argument
of counsel the Court hereby finds that the Plaintiff’s
disclosures of experts in this case completely fail to
satisfy Plaintiff’s burden pursuant to CR 26.02(4) and
such failure is fatal to the Plaintiff’s claims herein. The
Court similarly finds pursuant to CR 37 that Plaintiff has
violated its Orders to compel adequate disclosure in
accordance with CR 26. The Court further finds that the
Plaintiff has been given more than ample opportunity to
comply with her Rule 26 obligations and concludes, as a
matter of law, that she has failed to create a genuine issue
of material fact as to the liability of any of the
Defendants and they are each entitled to summary
judgment as a matter of law. Therefore, having
considered sanctions and finding that alternative
inadequate, the Court grants the motions of all
Defendants for summary judgment and it is hereby
ORDERED and ADJUDGED that the above-styled
matter, and all claims presented therein, be, and the same
hereby are, DISMISSED, with PREJUDICE.
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Following entry of the above order and the order granting summary
judgment to Kabir, Carmicle filed this appeal. On appeal, Carmicle argues the
circuit court improperly granted summary judgment because: 1) the alleged
negligence was so obvious she was not required to produce any expert evidence;
and 2) she filed sufficient evidence to create an issue of fact and to satisfy the
dictates of CR 26.02.
STANDARD OF REVIEW
"The standard of review on appeal of a summary judgment is whether
the circuit judge correctly found that there were no issues as to any material fact
and that the moving party was entitled to a judgment as a matter of law." Pearson
ex rel. Trent v. Nat’l Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky. 2002).
Summary judgment is only proper when "it would be impossible for the respondent
to produce any evidence at the trial warranting a judgment in his favor." Steelvest,
Inc., v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). In ruling
on a motion for summary judgment, the Court is required to construe the record "in
a light most favorable to the party opposing the motion . . . and all doubts are to be
resolved in his favor." Id. at 480. “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 v. Begley, 203
S.W.3d 165, 170 (Ky. App. 2006).
“Negligence in medical malpractice cases must be established by
expert testimony unless negligence and injurious results are so apparent that a
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layman with general knowledge would have no difficulty recognizing it.” Morris
v. Hoffman, 551 S.W.2d 8, 9 (Ky. App. 1977); Baptist Healthcare Systems v.
Miller, 177 S.W.3d 676 (Ky. 2005). “Whether expert testimony is required in a
given case is squarely within the circuit court's discretion. Absent an abuse of
discretion, we will not disturb the trial court's ruling.” (Internal citations omitted.)
Green v. Owensboro Medical Health System, Inc., 231 S.W.3d 781, 783 (Ky. App.
2007).
As a general rule, the “control of discovery is a matter of judicial
discretion.” Primm v. Isaac, 127 S.W.3d 630, 634 (Ky. 2004). “The test for abuse
of discretion is whether the trial judge's decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Manus, Inc. v. Terry Maxedon
Hauling, Inc., 191 S.W.3d 4, 8 (Ky. App. 2006).
With the preceding facts and standards of review in mind, we will
address the issues raised by Carmicle in the order listed above.
ANALYSIS
1. Need for Expert Testimony
The circuit court determined, at least by inference, expert testimony
was necessary to prove Carmicle’s claims of medical malpractice. We agree with
that assessment.
Carmicle claims the appellee physicians and hospital staff were
negligent because they did not obtain sufficient testing to diagnose and properly
treat her post-accident injuries. The type of diagnostic testing required to meet the
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applicable standard of care in Carmicle’s case and whether the physicians and
hospital staff met that standard is not within the knowledge of a lay person.
Therefore, Carmicle is required to produce expert testimony with regard to her
claims against the appellee physicians and hospital staff.
Carmicle also claims the hospitals failed to have in place and follow
proper protocols with regard to her treatment. What protocols are required to meet
the standard of care that applies to the hospitals is also not within the knowledge of
a lay person; therefore, Carmicle needs expert testimony to support her direct
claims against the hospitals.
Based on the preceding, Carmicle’s argument that she should not have
been required to produce any expert testimony is without merit.
2. Adequacy of Carmicle’s Expert Disclosures vis á vis
the Physician Appellees
CR 26.02(4)(a) provides that:
(i) A party may through interrogatories require any other
party to identify each person whom the other party
expects to call as an expert witness at trial, to state the
subject matter on which the expert is expected to testify,
and to state the substance of the facts and opinions to
which the expert is expected to testify and a summary of
the grounds for each opinion.
It is undisputed that Carmicle was dilatory in responding to the
Appellees’ interrogatories regarding her expert witnesses. However, she did
respond. Therefore, the question is whether the circuit court’s finding that those
responses were inadequate under CR 26.02(4)(a) was an abuse of discretion. After
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extensively reviewing Carmicle’s answers and supplemental answers, as well as
the transcript of Dr. T. Montgomery’s deposition, we hold the circuit court abused
its discretion when it granted summary judgment to the appellee physicians and
hospital staff. However, the circuit court did not abuse its discretion when it
granted summary judgment to the appellee hospitals on Carmicle’s claims
regarding the hospitals’ protocols.
As noted above, CR 26.02 requires a party to: identify all experts
who will be called to testify at trial; state what subject matter each expert will
address; state the substance of the facts and opinions of each expert; and
summarize the grounds for each opinion. Carmicle stated Dr. T. Montgomery
would testify that, in order to comply with the standard of care, the physicians who
treated Carmicle were required to: 1) review the x-rays films; 2) obtain additional
testing; and 3) consult with additional medical care providers. According to
Carmicle, Dr. T. Montgomery would testify the failure of Carmicle’s medical care
providers to take any of these steps amounted to a breach of that standard of care.
Carmicle stated Dr. Montgomery relied on the records, copies of the x-ray films,
and his training and experience in forming his opinions. This is sufficient to
satisfy the requirements of CR 26.02.
The Appellees have argued, and the circuit court stated, Dr. T.
Montgomery testified “he could not give any opinions within the realm of
reasonable medical probability” without reviewing the x-rays and the depositions
of the appellee physicians. However, taken in context, that is not a completely
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accurate summary of Dr. Montgomery’s testimony. In context, Dr. Montgomery
testified it would be better to have copies of the x-rays and the Appellees’
depositions and giving an opinion without those items would not be “fair;”
however, he also stated “all I need” is the records and he was refraining from
giving a “final opinion” until he could review those items.
Furthermore, following Dr. Montgomery’s deposition, Carmicle
provided copies of her x-rays from Casey County to Dr. Montgomery and he
updated his opinion. Carmicle then supplemented her answers to interrogatories
with that opinion. The Appellees have argued Carmicle did not go far enough
because she did not take their depositions and offer those depositions to Dr.
Montgomery for review. However, nothing in the Civil Rules requires Carmicle to
do so. Under the Civil Rules, Carmicle adequately identified Dr. Montgomery and
set forth what his opinions are and the basis for those opinions. That is all she was
required to do. While Dr. T. Montgomery’s opinions may ultimately prove
wanting in terms of credibility, that is an issue for the trier of fact, not the court on
summary judgment.
As to Dr. Silverman, Carmicle stated he would testify: 1) the x-ray
films were not of good quality; 2) the films do not show the fractured vertebra; 3)
the radiologist who read the films should have noted the lower cervical spine was
not visualized on the films and ordered additional films or at least noted on the
report the lower vertebrae were not visualized; 4) Carmicle’s other physicians
should have realized the lower vertebrae were not visualized and ordered
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additional testing; 5) the physicians breached the standard of care by failing to
order additional testing; and 6) his opinions are based on his review of the x-rays,
his understanding of the facts of the accident, the x-ray films, records he reviewed,
and his training and experience. This is all CR 26.02 requires. Therefore,
Carmicle complied with CR 26.02 with regard to Dr. Silverman’s opinion and the
court’s summary judgment in favor of the physician appellees was an abuse of
discretion.
When viewed in a light most favorable to Carmicle, the opinions of
Dr. T. Montgomery and Dr. Silverman create an issue of material fact. Therefore,
the circuit court’s summary judgment in favor of the appellee physicians and
hospital staff was an abuse of discretion and is reversed.
3. Adequacy of Carmicle’s Expert Disclosures vis á vis
the Hospitals
Carmicle has identified two experts who will address hospital protocol
and healthcare administration, Dr. Shershow and Dr. Hyde. Carmicle also set forth
the subject matter each expert would address. However, she did not state what
opinions either physician has regarding the specific standard of care that applies to
Carmicle’s claim or how any such standard of care may have been breached.
Furthermore, Carmicle did not set forth the grounds for any such opinions.
Therefore, the circuit court’s summary judgment of Carmicle’s claims against the
appellee hospitals for any violation of rules, procedures, or protocols was not an
abuse of discretion and is affirmed.
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CONCLUSION
For the foregoing reasons, we affirm the portion of the circuit court’s
summary judgment that disposed of Carmicle’s claims arising from allegations that
the appellee hospitals violated the standard of care related to their rules,
procedures, or protocols. We reverse the circuit court’s summary judgment in all
other respects and remand this matter for additional proceedings.
ALL CONCUR.
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BRIEF AND ORAL ARGUMENT
FOR APPELLANT:
James A. Ridings
London, Kentucky
BRIEF FOR APPELLEES CASEY
COUNTY HOSPITAL AND
WESTLAKE REGIONAL
HOSPITAL:
Timothy J. Walker
Lexington, Kentucky
BRIEF FOR APPELLEE EDWARD
GRIMBALL, M.D.:
Calvin R. Fulkerson
Lexington, Kentucky
BRIEF FOR APPELLEE JARED
WILSON, M.D.:
William P. Swain
Louisville, Kentucky
BRIEF FOR APPELLEE HOUSAM
HADDAD, M.D.:
Katherine Kerns Vesely
Louisville, Kentucky
BRIEF FOR APPELLEE EKRAMUL
KABIR, M.D.:
Todd D. Willard
Lexington, Kentucky
ORAL ARGUMENT FOR
APPELLEE HOUSAM HADDAD,
M.D.:
Clay Edwards
Louisville, Kentucky
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