ROSS (SHAWNA) VS. HARPRING (JOHN E.), ET AL.
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RENDERED: MAY 20, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000013-MR
SHAWNA ROSS
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 07-CI-010656
JOHN E. HARPRING, M.D. AND
NEUROSURGICAL INSTITUTE OF
KENTUCKY, P.S.C.
APPELLEES
OPINION
AFFIRMING
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BEFORE: CLAYTON, NICKELL AND THOMPSON, JUDGES.
THOMPSON, JUDGE: This is a medical malpractice action in which Shawna
Ross appeals from a summary judgment granted by the Jefferson Circuit Court in
favor of Dr. John E. Harpring and Neurosurgical Institute of Kentucky (NIK).
The circuit court found that Ross’s failure to present medical expert testimony that
Dr. Harpring’s conduct when treating Ross fell below the standard of care and
caused her injury, warranted summary judgment. We affirm.
Dr. Harpring, a member of NIK, performed surgery on Ross for the
purposes of removing her disk at C5-6; removing osteophytes; and fusing at the
vertebrae at C5-6. She alleges that because Dr. Harpring negligently failed to
remove the osteophyte at C6 she underwent two additional surgeries on her
cervical spine.
Dr. Villanueva performed the two subsequent surgeries. He allegedly
informed Ross and her legal counsel that it would have been preferable for Dr.
Harpring to remove the osteophyte through the back and that Dr. Harpring
negligently performed Ross’s first surgery. On October 2, 2007, Ross filed this
malpractice action against Dr. Harpring based in part on Dr. Villanueva’s
statements.
Subsequent to the filing of the complaint, Dr. Villanueva became a
member of NIK. At the time summary judgment was granted, no formal statement
or affidavit was obtained from Dr. Villanueva and he had not been deposed.
When requested by interrogatories to identify medical experts, on July
15, 2008, Ross’s counsel responded that the experts had not yet been identified but
that the answer would be “supplemented pursuant to any pretrial order issued by
this Court and consistent with CR 26.02.” At a status conference on March 23,
2009, the parties and the court agreed that Ross’s disclosure deadline was June 1,
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2009, and Dr. Harpring’s and NIK’s deadline was August 29, 2009. A trial was
scheduled for December 8, 2009.
After Ross failed to identify an expert and with the trial date
scheduled in two months, on October 6, 2009, Dr. Harpring and NIK moved for
summary judgment. Dr. Harpring submitted his affidavit stating that the
procedures he performed in treating Ross met or exceeded the applicable standard
of care and that the treatment did not cause Ross’s injury. The motion did not cite
discovery violations as its basis but asserted that Ross’s failure to identify a
medical expert witness was detrimental to her claim. Ross did not respond to the
summary judgment motion.
On November 2, 2009, a pretrial conference was held and the
summary judgment motion was heard. Ross’s counsel did not attend.
After applying the summary standard set forth in Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991), and based on the
record, the circuit court concluded:
Without having a medical expert testify that Dr.
Harpring’s approach or conduct in treating Ms. Ross fell
below the standard of care and thus led to her injury, Ms.
Ross’ case against Defendants must fail.
There being no genuine issue of material fact and
because Defendants are entitled to judgment as a matter
of law, the Court shall grant Defendants’ motion for
summary judgment.
Nine days after the entry of summary judgment, Ross filed a motion to
vacate pursuant to CR 59.05. In support of the motion, Ross’s counsel submitted
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his own affidavit wherein he stated that he had discussed with defense counsel a
potential problem with Dr. Villaneuva’s testimony because of his association with
NIK. He stated that defense counsel then “agreed to attempt to resolve the matter
in some other fashion.” To explain his absence from the pretrial conference,
counsel stated that his office received a telephone call from defense counsel’s
office on October 30, 2009, regarding the November 2, 2009, pretrial conference.
The secretary informed defense counsel that Ross’s attorney was not available and
would not be present. Notably absent from counsel’s affidavit and the record is
any affirmative evidence regarding Dr. Villaneuva’s testimony or any medical
expert testimony regarding the standard of care and causation.
In response, defense counsel submitted his affidavit. He stated that on three
occasions he spoke with a paralegal in opposing counsel’s office but that counsel
did not return his calls. He also attached correspondence from opposing counsel
indicating that he was aware of the pending summary judgment motion and
expressing concern regarding Dr. Villanuena’s testimony. In response, defense
counsel contacted Ross’s counsel’s office but counsel did not return his call. He
also stated that on the day of the pretrial conference, he contacted opposing
counsel’s office advising that the pretrial conference was to occur and, when
counsel was not in the office, called his cell phone and left a message for him to
return his call. The call was not returned. When no representative for Ross
appeared at the pretrial conference, he called counsel’s office and was told that
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another attorney would be requested to attend the conference. However, that
attorney telephoned and stated that neither he nor Ross’s counsel would attend.
After considering the arguments advanced for and against the motion to
vacate its summary judgment, the circuit court reiterated its original findings:
Having considered the arguments of counsel, the Court
adopts the substantive findings made in its November
2nd Order granting the Defendant’s Motion for Summary
Judgment. Specifically, giving due consideration to
criticisms of Dr. Harpring attributed to Dr. Wayne
Villanueva, the Court finds that even in the light most
favorable to the Plaintiff, these statements fail to
establish the existence of the requisite expert testimony
that are required in cases such as the matter before the
Court. Without having a medical expert willing to
testify that Dr. Harpring’s approach or conduct in
treating Ms. Ross fell below the standard of care and thus
led to her injury, Ms. Ross’ case against Defendants must
fail. Accordingly, the Court hereby denies Plaintiff’s
Motion to Vacate Judgment. (emphasis original).
Ross filed this appeal requesting that the summary judgment be reversed.
For clarity, we first address Ross’s suggestion that summary judgment was
entered as a sanction for the failure to comply with the court’s discovery orders.
See Ward v. Housman, 809 S.W.2d 717, 719 (Ky.App. 1991). In this case,
sanctions were not sought nor discussed in the circuit court’s order. The circuit
court explicitly stated that the basis for the summary judgment was Ross’s
inexplicable failure to produce an expert witness over two years after the action
was filed and the consequent total lack of proof to create a jury issue. Thus, the
only question presented is whether summary judgment was proper because no
genuine issue of material fact existed.
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Steelvest, Inc. offers the standard for granting a summary judgment in this
Commonwealth which requires that it be granted only when it appears impossible
for the nonmoving party to prevail at trial. Id. at 483. Although a stringent
standard, summary judgment is not precluded by the opposing party’s reliance on
the pleadings. Brock v. Pilot Corp., 234 S.W.3d 381 (Ky.App. 2007). Summary
judgment is proper after the opposing party is afforded ample opportunity to
complete discovery yet fails to offer controverting evidence. Suter v. Mazyck, 226
S.W.3d 837 (Ky.App. 2007).
The curtain must fall at some time upon the right of a
litigant to make a showing that a genuine issue as to a
material fact does exist. If this were not so, there could
never be a summary judgment since ‘hope springs eternal
in the human breast.’ The hope or bare belief . . . that
something will ‘turn up,’ cannot be made basis for
showing that a genuine issue as to a material fact exists.
Neal v. Welker, 426 S.W.2d 476, 479-480 (Ky. 1968).
Much has been written regarding summary judgments in the context of
medical malpractice cases and, therefore, we write with established precedent
regarding the requirement of medical expert testimony to support a plaintiff’s
claim. The summation provided in Blankenship v. Collier, 302 S.W.3d 665, 670
(Ky. 2010), accurately reflects the law:
Under Kentucky law, a plaintiff alleging medical
malpractice is generally required to put forth expert
testimony to show that the defendant medical provider
failed to conform to the standard of care. Perkins v.
Hausladen, 828 S.W.2d 652, 655–56 (Ky. 1992). Expert
testimony is not required, however, in res ipsa loquitur
cases, where “the jury may reasonably infer both
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negligence and causation from the mere occurrence of
the event and the defendant's relation to it”, and in cases
where the defendant physician makes certain admissions
that make his negligence apparent. Id. ( quoting
Restatement (Second) of Torts, Comment b, p. 157).
Medical malpractice cases can therefore be divided into
two categories: cases where the parties do not dispute the
need for expert testimony, which encompass the vast
majority of medical malpractice claims, and cases where
the plaintiff disputes the need for expert testimony
because he contends one of the narrow exceptions
applies.
Ross admits that neither exception applies to her case and, as a
consequence, concedes that expert medical testimony was necessary to withstand
summary judgment. Her argument is that the summary judgment was premature
and, given additional time, she could have produced affirmative evidence in her
favor by deposing Dr. Villanueva.
In Blankenship, it was explained that if the need for an expert is not
disputed, the trial court is not required to enter a separate ruling informing the
plaintiff that his case requires expert testimony before considering a summary
judgment motion based on the plaintiff’s failure of proof. “When it is evident that
the plaintiff has not secured a single expert witness and has failed to make any
expert disclosures after a reasonable period of time, there truly is a failure of proof
and a summary judgment motion is appropriate.” Id.
With the standard of review as our guide, it is helpful to highlight the
undisputed factual scenario presented:
(1) The summary judgment motion was filed two years
after Ross’s complaint was filed;
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(2) Despite a court ordered discovery deadline, Ross did
not disclose a medical expert witness;
(3) Ross did not request an extension of the discovery
deadline;
(4) Ross did not seek a postponement of the trial date;
(5) Ross did not respond to the motion for summary
judgment;
(6) Ross’s counsel did not attend the summary judgment
hearing;
(7) Ross did not depose a medical expert witness,
including Dr. Villanueva.
Ross did not secure an expert witness and failed to make any expert
disclosures in accordance with the court’s order. When confronted with a motion
for summary judgment, Ross did not respond. Moreover, in her CR 59.05 motion
and even in her argument to this Court, there is a complete failure to explain why
Dr. Villanueva or any expert had not been deposed in the two years since the
complaint was filed. Under the circumstances, there is a complete failure of proof
and summary judgment was appropriate.
Based on the foregoing, the summary judgment is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Kevin P. Weis
David B. Gray
Prospect, Kentucky
William P. Swain
John W. Phillips
Louisville, Kentucky
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