LUTTRELL (JEAN) VS. JEWISH HOSPITAL , ET AL.
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RENDERED: DECEMBER 4, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000870-MR
JEAN LUTTRELL
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULZ GIBSON, JUDGE
ACTION NO. 06-CI-008007
JEWISH HOSPITAL & ST. MARY'S
HEALTHCARE, INC., d/b/a FRAZIER
REHAB INSTITUTE; AND DAVID
SELIGSON, M.D.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, MOORE, AND VANMETER, JUDGES.
MOORE, JUDGE: Jean Luttrell appeals the order of the Jefferson Circuit Court
granting the motions for summary judgment filed by Jewish Hospital and St.
Mary’s Healthcare, Inc., d/b/a Frazier Rehab Institute (Frazier) and David
Seligson, M.D. After a careful review of the record, we affirm because Luttrell
failed to put forth expert evidence in support of her claims and the circuit court did
not abuse its discretion in denying Luttrell’s motion for a continuance.
Luttrell underwent knee replacement surgery. Dr. Seligson was her
surgeon. Following her surgery, Luttrell was sent to Frazier for rehabilitation
treatment. Approximately one week after her discharge from Frazier, Luttrell went
to see her general practitioner, Dr. John Kilgallin. Luttrell complained of swelling,
tenderness and warmth around her incision. Dr. Kilgallin recommended that she
go see Dr. Seligson, which she did that day. Dr. Seligson admitted Luttrell to
University Hospital for observation because it was suspected that she had an
infection. She was discharged and returned home several days later.
Approximately two weeks after returning home, Luttrell fell and split
the surgical incision in her knee completely open and injured a tendon and a
ligament in her knee. Luttrell then underwent surgery to repair her tendon and
ligament, and the wound was irrigated with antibiotics.
Luttrell filed her pro se complaint in this case, contending that Dr.
Seligson and Frazier were negligent during her initial surgery and rehabilitation
treatment. Specifically, she alleged that she developed an infection in her knee
after her initial surgery as a result of the defendants’ negligence.
In late 2006, the defendants propounded discovery on Luttrell
requesting the identities and opinions of her expert witnesses expected to testify in
support of her claims. Luttrell responded by stating that she had not secured any
experts at that time to testify on her behalf.
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In the spring of 2007, the circuit court set various pre-trial deadlines,
including the deadline of ninety days before trial for Luttrell to disclose her expert
witnesses, and the subject matter and substance of the testimony those witnesses
would provide.
A few days after this order was entered, the defendants each filed
motions for summary judgment, arguing that Luttrell could not establish a prima
facie case of medical negligence because she had not disclosed an expert witness.
Luttrell responded by arguing that the motions were premature because she needed
more time for discovery. She also identified Dr. Kilgallin as a possible expert
witness to testify for her. Luttrell stated as follows:
Dr. Kilgallin has expressed his willingness to serve as an
expert witness in [Luttrell’s] case in whatever capacity
she deems necessary, through deposition or testimony at
trial. Dr. Kilgallin is intimately familiar with [Luttrell’s]
medical condition, as well as her medical condition prior
to and immediately after the procedure that is the subject
of this litigation.
On August 29, 2007, the circuit court entered an order stating that
“Luttrell must utilize expert testimony for her to establish a prima facie case of
medical malpractice in the case at bar.” The court also noted that Luttrell’s expert
witness disclosure concerning Dr. Kilgallin did not comply with CR1 26.02(4)(a)(i)
because it did not provide “the substance of the facts and opinions to which the
expert is expected to testify and a summary of the ground for each opinion.” The
circuit court further noted that “[a]s trial is less than 90 days away, Luttrell is
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Kentucky Rule of Civil Procedure.
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beyond the time provided by this Court to disclose her expert witnesses in
compliance with CR 26.02(4)(a)(i).” The court stayed the defendants’ motions for
summary judgment and provided Luttrell until September 6, 2007, “to supplement
her expert witness disclosure, so as to comply with CR 26.02(4)(a)(i). If she fails
to supplement her disclosure by that date, the motions for summary judgment will
be granted. If Luttrell adequately supplements her expert witness disclosure in
compliance with CR 26.02(4)(a)(i), the motions will be denied.”
Luttrell then retained counsel, and her counsel filed an expert witness
disclosure. This disclosure provided as follows:
Dr. Kilgallin is expected to testify as to his opinion that
[Luttrell] contracted an infection during, or immediately
prior to, her inpatient treatment with Defendant, [Frazier]
Rehab Institute. Further, Dr. Kilgallin is expected to
testify as to his opinion that [Luttrell] would not have
contracted said infection, and that said infection could
have been prevented and/or eliminated within a
reasonable time, but for the acts and/or omissions of the
Defendant, [Frazier] Rehab Institute, [and] that said
infection should have been treated with an aggressive
course of antibiotics immediately upon the discovery of
same, and that those actions and/or omissions were the
proximate cause of said infection. Dr. Kilgallin’s
opinion is based upon the grounds that Defendant,
[Frazier] Rehab Institute, failed to satisfy the requisite
standard of care under the circumstances with regard to
the provision of said care.
***
Dr. Kilgallin is expected to testify as to his opinion that
the Defendant, Dr. David Seligson, or another
physician/surgeon under his direct supervision and
control, was negligent in performing the subject knee
replacement surgery, and was further negligent in failing
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to properly attend to [Luttrell’s] post-surgical care and
the monitoring of [Luttrell’s] progress in recovery and
subsequent medical condition. . . . Dr. Kilgallin is further
expected to testify as to his opinion that [Luttrell’s]
medical condition, specifically as it relates to the knee
upon which the Defendant performed surgery, would be
improved but for the Defendant’s actions and/or
omissions based upon Dr. Seligson’s failure to visit
[Luttrell] for at least one week after the performance of
[her] knee replacement surgery. Dr. Kilgallin is further
expected to testify that Dr. Seligson should have
responded more aggressively to [Luttrell’s] infection, and
that an aggressive course of antibiotics should have been
prescribed immediately upon the discovery of said
infection. Dr. Kilgallin is also expected to testify as to
his opinion that the same infection has persisted in
[Luttrell’s] knee to the present time. Dr. Kilgallin’s
opinion is based upon the grounds that Dr. Seligson
provided [Luttrell] medical care in such a manner that the
requisite standard of care required under the
circumstances was not satisfied, and that it is Dr.
Kilgallin’s expert opinion that [Luttrell’s] medical
condition has suffered since the time of said procedure as
a direct and proximate result of the actions and/or
omissions of the Defendant, Dr. Seligson.
However, during his subsequent deposition, Dr. Kilgallin testified that
he had no knowledge to suggest that Frazier Rehab was culpable for causing
Luttrell’s infection or was culpable in any other way in the case. Dr. Kilgallin also
testified that he had no documentation as to what Dr. Seligson did or did not do, so
he could not testify as to the appropriateness of Dr. Seligson’s treatment of
Luttrell.
Luttrell moved for a continuance of the hearing on the defendants’
motions for summary judgment, as well as of the trial date. The circuit court
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denied her motion for a continuance, and upon reviewing the defendants’ motions
for summary judgment, the circuit court discussed Dr. Kilgallin’s deposition as
follows:
In the course of that deposition, Dr. Kilgallin stated that
he would not take the position that either Dr. Seligson or
Frazier Rehab was at fault in causing Luttrell’s infection,
since he could not offer any opinion as to when the
infection first set in. Dr. Kilgallin could not state that the
infection was the proximate cause of any injury to
Luttrell. Dr. Kilgallin testified that he had never seen
any medical records other than his own for Luttrell’s care
and could not offer any criticism of Dr. Seligson for his
management of the infection. In short, Dr. Kilgallin
offered no testimony that Dr. Seligson or Frazier Rehab
deviated from the applicable standard of care, or that any
such failure caused Luttrell’s alleged infection.
The court continued:
There is nothing of an evidentiary nature in the record
which indicates that Dr. Seligson or Frazier Rehab
deviated from the applicable standard of care in this case.
As such, it appears that it will be impossible for [Luttrell]
to prevail on her claims, entitling Defendants to summary
judgment as a matter of law.
Thus, the circuit court granted the defendants’ motions for summary judgment.
Luttrell now appeals, contending that the circuit court erred in granting the
defendants’ motions for summary judgment.
“The 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). “The record must be
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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.” Steelvest, Inc. v.
Scansteel Serv. Ctr. Inc., 807 S.W.2d 476, 480 (Ky. 1991). “Even though a trial
court may believe the party opposing the motion may not succeed at trial, it should
not render a summary judgment if there is any issue of material fact.” Id. Further,
“the movant must convince the court, by the evidence of record, of the
nonexistence of an issue of material fact.” Id. at 482.
Luttrell alleges that Dr. Seligson and Frazier Rehab are liable based
on her claims of medical negligence. This Court has stated the law regarding
medical negligence claims as follows:
The presumption of negligence is never indulged in from
the mere evidence of mental pain and suffering of the
patient, or from failure to cure, or poor or bad
results, . . . . The burden of proof is upon the patient to
prove the negligence of the physician or surgeon, and
that such negligence was the proximate cause of his
injury and damages. . . .
Except in limited factual circumstances, however, the
plaintiff in a medical negligence case is required to
present expert testimony that establishes (1) the standard
of skill expected of a reasonably competent medical
practitioner and (2) that the alleged negligence
proximately caused the injury.
The opinion of the expert must be based on reasonable
medical probability and not speculation or possibility.
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.
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Kentucky consistently recognizes two exceptions to the
expert witness rule in medical malpractice cases. Both
exceptions involve the application of the res ipsa
loquitur doctrine and permit the inference of negligence
even in the absence of expert testimony. One exception
involves a situation in which any layman is competent to
pass judgment and conclude from common experience
that such things do not happen if there has been proper
skill and care; illustrated by cases where the surgeon
leaves a foreign object in the body or removes or injures
an inappropriate part of the anatomy. The second occurs
when medical experts may provide a sufficient
foundation for res ipsa loquitur on more complex
matters. An example of the second exception would be
the case in which the defendant doctor makes admissions
of a technical character from which one could infer that
he or she acted negligently.
Andrew v. Begley, 203 S.W.3d 165, 170-71 (Ky. App. 2006) (internal quotation
marks and citations omitted).
“A trial court’s ruling with regard to the necessity of an expert witness
[is] within the court’s sound discretion.” Nalley v. Banis, 240 S.W.3d 658, 661
(Ky. App. 2007) (internal quotation marks omitted). In the present case, the circuit
court found that an expert witness was necessary because the issue of whether
Luttrell’s infection was the result of medical negligence was not a situation
qualifying for one of the exceptions to the expert witness rule. As previously
mentioned, Dr. Kilgallin testified during his deposition that he had no knowledge
to suggest that Frazier Rehab was culpable for causing Luttrell’s infection or was
culpable in any other way in the case. Dr. Kilgallin also testified that he had no
documentation as to what Dr. Seligson did or did not do, so he could not testify as
to the appropriateness of Dr. Seligson’s treatment of Luttrell.
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Therefore, because even Luttrell’s family doctor could not determine
whether the defendants acted negligently, it stands to reason that a layperson also
could not make such a determination and, thus, that Luttrell’s case does not qualify
for either exception to the expert witness rule. Consequently, the circuit court did
not abuse its discretion in determining that an expert was necessary in this case.
Furthermore, because an expert witness was necessary, but Luttrell’s
only expert, Dr. Kilgallin, did not testify in his deposition that either of the
defendants acted negligently, the circuit court properly granted summary judgment.
To the extent that Luttrell claims the circuit court erred in denying her
a continuance for the purpose of allowing “Dr. Kilgallin to review [Luttrell’s]
medical records and provide a statement based upon said review,” we disagree.
“The application for a continuance is addressed to the sound discretion of the
court, and unless this discretion has been abused the action of the court will not be
disturbed.” Simpson v. Sexton, 311 S.W.2d 803, 805 (Ky. 1958). “An abuse of
discretion occurs when a trial judge’s decision [is] arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Farmland Mut. Ins. Co. v. Johnson, 36
S.W.3d 368, 378 (Ky. 2000) (internal quotation marks omitted). There are seven
factors to consider in determining whether to grant a continuance: “length of
delay, number of prior continuances granted, inconvenience to litigants, which
party caused the delay, availability of counsel, complexity of the case, and
prejudice to the parties.” Pendleton v. Commonwealth, 83 S.W.3d 522, 526 (Ky.
2002).
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In the present case, the circuit court had previously granted an
extension of time for Luttrell to file her expert witness disclosures, and the court
had also previously stayed ruling on the defendants’ motions for summary
judgment. Luttrell then moved for a continuance on the basis that it was necessary
so that “Dr. Kilgallin could review Luttrell’s [medical] records and issue a
statement of his opinions based on that review.” In denying Luttrell’s motion for a
continuance, the circuit court reasoned as follows:
Luttrell’s expert disclosure asserts that Dr. Kilgallin’s
opinions would be based in part o[n] a review of those
records, and gives a detailed recitation of those expected
opinions. This leads the Court to believe that the
disclosure was filed prior to any meaningful discussion
between Luttrell and her chosen expert, and that those
meaningful discussions still have not occurred. The
Court finds that Luttrell has had more than adequate time
to prepare her case, and that Dr. Kilgallin’s testimony
does not support her claims.
Thus, prior extensions of time pertaining to the expert witness had been granted in
this case; approximately seven months had passed between the time the court had
initially granted the extension of time to file the expert disclosures and the time
that Luttrell moved for a continuance; Luttrell was the party who caused the delay;
and Luttrell had provided no expert testimony to support her causes of action.
Consequently, the circuit court did not abuse its discretion in denying Luttrell’s
motion for a continuance.
Accordingly, the order of the Jefferson Circuit Court is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEFS FOR APPELLEES:
Danny Butler
Greensburg, Kentucky
Daniel G. Brown
Louisville, Kentucky
Clay M. Stevens
Louisville, Kentucky
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