RENDERED: JULY 7, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0673-MR
ANDREA KEMPLIN AND LISA KEMPLIN APPELLANTS
APPEAL FROM CAMPBELL CIRCUIT COURT v. HONORABLE DANIEL J. ZALLA, JUDGE ACTION NO. 19-CI-00294
ST. ELIZABETH HEALTHCARE D/B/A ST. ELIZABETH FORT THOMAS AND ABDUL LATIF BANIRE, PA-C APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, MCNEILL, AND TAYLOR, JUDGES.
COMBS, JUDGE: In this medical malpractice case, Andrea and Lisa Kemplin
appeal from the summary judgment granted by the Campbell Circuit Court in favor
of St. Elizabeth Healthcare d/b/a St. Elizabeth Fort Thomas (St. Elizabeth’s) and
Abdul Latif Banire, a physician’s assistant. The trial court struck from its record
the post-deposition affidavit of Dr. Denise Abernethy, the Kemplins’ medical expert, and concluded that the Kemplins could not prevail on their medical
malpractice claim where they failed to show that the alleged negligence
proximately caused Andrea’s alleged injuries. Additionally, the court concluded
that the Kemplins could not prevail on a claim under the Emergency Medical
Treatment and Active Labor Act (EMTALA), 42 U.S.C.1 §1395dd(a), because that
federal statute’s provisions are inapplicable to the facts and circumstances.
Finding no error after our review, we affirm.
Mid-morning on July 10, 2017, Andrea awoke feeling severe pain in
the right side of her abdomen. She skipped a lunch date with Lisa because she did
not feel well. In her deposition, Andrea explained that she had suffered on and off
with cramps and pain in her abdomen accompanied by vomiting and very loose
stools for a couple of months prior to the events of July 10. She had been seeing
Dr. Sherri Schwartz, her primary care physician, for “stomach issues.” Dr.
Schwartz ordered a CT scan, an MRI, and an ultrasound, all of which revealed
nothing remarkable. Dr. Schwartz prescribed an anti-nausea medication,
antibiotics, and a sleep aid. Andrea testified in her deposition that nothing that Dr.
Schwartz prescribed gave her much relief.
When Lisa returned from lunch between 4:00 and 4:15 p.m., she
found that Andrea was suffering intense abdominal pain. Andrea asked her to dial
1 United States Code.
-2- 911. Andrea was transported by ambulance and arrived at St. Elizabeth’s at 5:00
p.m., continuing to suffer abdominal pain and vomiting.
Medical records of her admission indicate that Andrea was seen first
by a nurse and, once in a room, by Physician Assistant (PA) Banire. Banire is
employed by Compass Emergency Physicians, with which St. Elizabeth’s contracts
for professional services. On the evening of July 10, 2017, Banire was under the
direct supervision of Dr. Richard Stewart, also a Compass Emergency Physicians
employee.
Banire reviewed notes prepared by emergency medical services
personnel and talked with the nurse about Andrea’s symptoms before he examined
Andrea. Andrea indicated to Banire that her pain was intense and that she had
been treating for a month or so with Dr. Schwartz for abdominal pain. Andrea told
Banire that her last visit with Dr. Schwartz had been the week before. Banire
reviewed Andrea’s medical records and confirmed that she had only recently
undergone a CT scan, x-ray, and ultrasound. He reviewed the results of the
imaging studies and discovered nothing remarkable.
Banire conducted a physical examination of Andrea. He palpated her
abdomen, listened to her bowel, listened to her lungs, and listened to her heart rate.
He found that she had “diffuse right-sided abdominal tenderness.” He reported
that the patient did not exhibit distention, rebound tenderness, or guarding of the
-3- abdomen. Banire specifically considered whether she was suffering with
diverticulitis, appendicitis, or a perforated bowel and concluded that she was not.
Ultimately, Banire was convinced that Andrea was not suffering with a surgical or
acute abdomen.
Upon questioning by Andrea’s attorney, Banire denied that patients
with acute or complicated diverticulitis usually have right-sided pain. He
confirmed that patients suffering with diverticulitis usually experience lower, left-
sided abdominal tenderness because the sigmoid colon is generally involved. He
also explained that symptoms of a perforated bowel specifically include rebound
tenderness, abdomen rigidity, and guarding. Banire related that Andrea had none
of these symptoms, and, as a consequence, he did not believe that she required a
surgical consultation or intervention.
Banire consulted with his supervising physician, Dr. Stewart. He
discussed Andrea’s symptoms, explained his findings upon physical examination,
and related her medical history. According to Banire, Dr. Stewart, too, reviewed
Andrea’s recent CT scan. Banire and Dr. Stewart agreed that there was no
indication that Andrea had a surgical abdomen and that a repeat CT scan was
unnecessary. Banire ordered standard lab work and, upon Dr. Stewart’s
recommendation, ordered an x-ray of Andrea’s abdomen. The x-ray was
unremarkable. Reflecting on his physical examination of Andrea, review of her
-4- medical records (specifically including the imaging studies), the results of the lab
work he had ordered, and his discussions with Dr. Stewart, Banire concluded that
Andrea was most probably suffering with an acute flare-up of the chronic
abdominal pain that was being treated by her primary care physician with a muscle
relaxer and steroid. Less probably, he believed that she could be suffering with an
upset gastrointestinal track. Banire ordered intravenous fluids, a painkiller, and an
anti-nausea medication. Dr. Stewart agreed with Banire’s treatment plan.
Banire explained to the Kemplins’ counsel that he did not attribute
Andrea’s elevated white blood cell count to infection but rather to her ingestion of
the steroid prescribed the week before or perhaps to the prolonged period of
vomiting. He explained, “taking the exam in totality and everything with her chart
and record, I did not suspect that she was infectious or had an acute abdomen or
surgical abdomen.” Banire reiterated that he did not order a CT scan for two
reasons: (1) because Andrea had just had one, it “wasn’t indicated that day after I
saw and evaluated her”; and (2) because of patient safety -- “we try to reduce, you
know, radiation exposure if it’s not indicated in the ER.”
Upon Banire’s reevaluation of her later in the evening, Andrea
indicated that she was still suffering pain. He palpated her abdomen again and was
still satisfied that it was non-acute. Later, Banire reassessed Andrea’s condition
again. Andrea indicated to her nurse that her pain had subsided with a dose of
-5- hydromorphone, and the nurse reported that Andrea was sleeping. Banire
consulted again with Dr. Stewart, and they agreed that it was safe to discharge her.
According to Banire, upon discharge at 9:30 p.m., Andrea was given standard
instructions: to return to the emergency room if her symptoms returned, if she
experienced new symptoms, and/or if her condition did not improve or if it
worsened. He advised her to see Dr. Schwartz in one to four days and to consider
making an appointment with a gastroenterologist.
In his deposition, Dr. Stewart explained to the Kemplins’ counsel that
the fact that Andrea arrived at the hospital by ambulance would not necessarily be
an indication of the severity of her abdominal pain because the ambulance service
was often used simply as a mode of transport. Dr. Stewart denied that an x-ray in
the vertical position rather than supine would have been preferable in light of
Banire’s physical examination of the patient. He also denied that a repeat CT scan
was warranted “because [Banire’s] exam did not suggest any type of emergent
abdominal process.” He confirmed that an elevated white blood cell count is a
“very nonspecific finding.” He observed, “I think of stress, infection, medication,
sometimes it’s just a person’s own slightly abnormal finding beyond the norm.
That’s such a, such a low deviation of high, it’s very, very common finding in the
ED workup when we see people under acute stress.”
-6- Dr. Stewart confirmed that Andrea’s urinalysis showed no evidence of
infection. He would not agree with counsel’s proposition that “a progression from
a simple to a complicated diverticulitis is unlikely to have occurred in less than 10
hours.” He indicated “[w]ith review of this case, I think everything here was very
appropriate, standard. . . . I see no indication for an abdominal CT based on what
I’ve reviewed in this record.”
He vehemently denied that there was a misdiagnosis at the visit to St.
Elizabeth’s on July 10, 2017. Dr. Stewart noted that the standard care for acute
diverticulitis is “antibiotic coverage,” but he decided that “[antibiotics] were not
indicated at this time, as I see no other factor that would even suggest infection
other than the nonspecific [slightly elevated white blood cell count]” for which
there was a clear explanation – the steroid medication prescribed to Andrea by Dr.
Schwartz.
In her deposition, Andrea explained as follows:
Q. Was the abdominal pain worse when you left [the hospital] that night?
A. Yes, it was. Again, it come and go -- gone because I was on a pain medicine of some sort.
Lisa drove Andrea home and stopped at a pharmacy to pick up her
new prescriptions.
-7- At home, Andrea slept off and on but continued to vomit and to suffer
what she described as intense pain. When Andrea’s vomit turned to a black
substance, Lisa began making calls to Dr. Schwartz. When Dr. Schwartz returned
a call to Lisa early on July 11, 2017, she advised Lisa to get Andrea back to St.
Elizabeth’s emergency room immediately.
Lisa confirmed in her deposition that Andrea had been suffering with
pain in her upper right abdomen for “a good portion of June.” “She had been to
several appointments and tests and that nature.” Lisa explained that Dr. Schwartz
“mentioned that she didn’t really see anything [on the imaging scans] and it could
be a pulled muscle.” She believed that Banire was in Andrea’s room three or four
times during the four and one-half hours that they were at the hospital.
Nevertheless, Lisa felt that Andrea’s condition had deteriorated in the
emergency room and was surprised that she was discharged that evening. She
explained that she and Andrea stopped at Kroger to fill Banire’s prescriptions at
9:55 p.m. and arrived back at home near 11:00 p.m. Andrea continued to vomit
through the night and neither of them slept much. As a result, Lisa began calling
Dr. Schwartz’s emergency number “two to three, maybe even four times, couldn’t
really get ahold of anybody.” Lisa remembered, “Dr. Schwartz called and told me
to take her immediately back up. . . so at least by maybe five or six a.m. That’s
guessing.” Lisa did not recall that Banire had given instructions to return to the
-8- emergency room if Andrea’s symptoms changed or did not improve or worsened
and did not recall receiving any printed material concerning her care after
discharge.
Medical records show that Andrea returned to the hospital at 7:25 a.m.
A CT scan was performed, and a report of the scan was prepared by 10:30 a.m.
Ultimately, upon consultation between the emergency room physician and a
surgeon, Andrea was diagnosed with diverticulitis with a perforated bowel. She
underwent surgery at around 1:00 p.m., during which a section of bowel was
removed. During surgery, Andrea went into septic shock and later into cardiac
arrest, requiring resuscitation and admission to St. Elizabeth’s intensive care unit.
No expert provided testimony to indicate when Andrea’s bowel perforated.
On April 8, 2019, the Kemplins filed a negligence action against
Banire and St. Elizabeth’s in Campbell Circuit Court. On November 28, 2019, the
Kemplins were granted leave to file a first amended complaint to assert a claim
against Compass Emergency Physicians, P.S.C. (Compass Emergency Physicians),
Banire’s employer. Each of the defendants answered and denied the allegations
against them. A period of discovery began.
The Kemplins named as their expert Dr. Denise Abernethy. She was
deposed in Cincinnati on March 11, 2020. She agreed with deposing counsel that
“an emergency medicine practitioner can act completely reasonably and within the
-9- standard of care and miss a diagnosis of bowel perforation.” She added that she
was acting with “hindsight bias” when she sat down to review Banire’s medical
decisions and that she was unfamiliar with Banire’s deposition testimony. Because
of the known cancer risk, Dr. Abernethy agreed with counsel that “if an emergency
room provider has a lower suspicion that a test such as a CT scan is indicated, then
he or she should really think twice before ordering that test.” She agreed that the
statement was particularly relevant where a patient with the same or similar
symptoms “has just had an abdominal CT scan seven to ten days prior.”
She agreed that where Banire talked with Andrea, physically
examined her, and had a low suspicion that an abdominal CT scan was indicated,
“then it was certainly reasonable for him not to order that study knowing that she
had had one ten days prior.” She also agreed that “Andrea’s history, when she
presented on July 10th of 2017, was inconsistent with acute complicated
diverticulitis” and that “three months of bowel symptoms would be also
inconsistent with a surgical abdomen.”
Dr. Abernethy agreed that it was reasonable for Banire to incorporate
into his assessment the results of the abdominal CT scan that Andrea had
undergone days before she arrived at the emergency room. Dr. Abernethy agreed
that on July 10, 2017, the radiologist compared his view to the findings of the CT
scan performed days earlier; that Banire was entitled to rely upon the report of the
-10- radiologist; and that Banire had acted reasonably by considering that report in
reaching his diagnosis.
She agreed that acute diverticulitis pain is most often in the sigmoid
colon -- the lower left quadrant of the abdomen -- and that Andrea did not have
pain in the lower left quadrant of her abdomen. Instead, Andrea reported and
exhibited pain in her right abdomen. Dr. Abernethy agreed that the absence of
rebound tenderness and rigidity of the abdomen are factors suggesting that the
patient is not suffering with an acute abdomen.
Nevertheless, Dr. Abernethy opined that a diagnosis of complicated
diverticulitis was missed during the emergency room visit and that a surgeon
“would have probably asked for a repeat CT scan.” She specifically admitted
that if asked whether Andrea’s outcome would have changed in any way had
Banire requested a surgical consult, she would have to speculate in order to
provide an answer.
It was Dr. Abernethy’s opinion that Banire breached the standard of
care because “I did not feel he considered acute diverticulitis.” However, she
indicated that “I can’t tell from -- based on his exam” whether Banire considered
diverticulitis. She admitted that not everything an emergency care provider thinks
or does is reflected in his notes and that Banire’s physical examination was
consistent with his consideration of the diagnosis. Dr. Abernethy agreed that
-11- Andrea did not have a fever and did not appear septic during her visit to the
emergency room.
While she later opined that the standard of care required Banire to
order an “abdominal series with an upright view” (rather than supine) or a CT scan,
this opinion specifically presupposed that the care provider was considering a
perforated bowel. However, she specifically admitted that it was within the
standard of care, under the facts and circumstances of this case (where the
patient’s symptoms had persisted for months, the patient had taken a CT scan ten
days before, findings after physical examination were inconsistent with a
perforated bowel) for Banire not to order the abdominal series and that it was
reasonable for him not to repeat the abdominal CT scan. She also admitted that it
was equally possible that an upright view x-ray would and would not have
indicated free air emanating from a perforated bowel.
Dr. Abernethy specifically agreed that if a surgical consult had been
obtained on July 10, 2017, Andrea “may have had the exact same outcome.” She
indicated that if antibiotics had been started, “there’s a much better chance of her
having a better outcome”; however, she specifically declined to state that opinion
to a reasonable degree of medical probability and admitted that she would have to
defer to a surgeon’s expertise on the matter. She also specifically deferred to a
-12- surgeon’s expertise as to whether the decision to administer antibiotics on the
evening of July 10, 2017, would have prevented bowel perforation.
Dr. Abernethy stated that under the facts and circumstances, she could
not take exception to Banire’s discharge diagnosis of “generalized abdominal
pain.” However, she emphasized that she was “concerned about -- I felt that this
patient, had the attending physician been staffed with or evaluated the patient, may
have recommended a repeat CT scan.” She admitted that she did not know
whether Banire and Dr. Stewart had discussed Andrea’s CT scan from days before
her admission to the emergency room and specifically agreed that it would have
been reasonable for Banire to defer to Dr. Stewart’s judgment with respect to the
need for a repeat CT scan. She also agreed that it would not be unreasonable for a
well qualified emergency medicine physician to review the case and to conclude
that Banire’s care was entirely reasonable and met the standard of care.
Dr. Abernethy admitted that she would have to defer to a
surgeon’s expertise concerning the timeline of the progression of diverticulitis and
could not give a specific opinion in terms of hours or days. She opined that
Andrea “was deteriorating in the emergency department starting around 10:00
a.m.” on July 11, 2017. However, she did not conclude that any hospital employee
breached the standard of care with respect to the emergency care provided on the
-13- evening of July 10, 2017, or with respect to the care and timing of the surgery on
July 11, 2017.
In June 2020, St. Elizabeth’s disclosed its expert witnesses. It
represented that Patricia Howard, Ph.D., R.N., a certified emergency nurse at the
University of Kentucky, would testify that the hospital’s nurses provided
appropriate nursing care and met the standard of care in Andrea’s treatment. It
represented that Gary Vitale, M.D., would testify that an earlier diagnosis of acute
diverticulitis on the evening of July 10, 2017, would not have altered Andrea’s
outcome; that antibiotic treatment would not have prevented perforation of the
sigmoid colon; and that a surgical consult would not have changed the fact that
Andrea required surgical intervention and would not have changed her ultimate
outcome. Among other things, Dr. Vitale would testify concerning the course and
progression of diverticular disease, and he would opine that the timing and
ordering of the CT scan, surgical consult, and surgery on July 11, 2017, were
reasonable and within the standard of care.
Banire also disclosed his expert witness. Dr. Arthur M. Pancioli,
professor of emergency medicine and chairman of the Department of Emergency
Medicine at the University of Cincinnati, College of Medicine, would testify that
the entirety of the care and treatment provided to Andrea on the evening of July 10,
2017, was reasonable and in accordance with the applicable standard of care. He
-14- would testify specifically that Banire’s decision not to order a repeat CT scan or a
repeat MRI was reasonable and appropriate in light of the fact that Andrea’s
history of right upper quadrant pain and the report of diffuse right-sided abdominal
pain were both inconsistent with the typical presentation for diverticulitis. He
would confirm that the absence of both rebound tenderness and guarding of the
abdomen explains why a reasonable clinician would not have suspected a
perforation or the presence of free air in Andrea’s abdomen. Finally, he would
testify that nothing that Banire could do upon and/or during and/or subsequent to
Andrea’s presentation on the evening of July 10, 2017, would have avoided the
development of the bowel perforation and her subsequent surgeries.
On June 9, 2020, Banire gave notice of the filing of the entirety of Dr.
Abernethy’s deposition testimony. Several days later, St. Elizabeth’s, Banire, and
Compass Emergency Physicians filed comprehensive motions for summary
judgment. The Kemplins filed their response, arguing that genuine issues of
material fact precluded entry of summary judgment. The motions were originally
set for hearing on July 10, 2020, but the hearing date was rescheduled for August
28, 2020, in order to accommodate the schedule of Kemplins’ counsel. However,
counsel for the Kemplins failed to appear on this date. Ultimately, the hearing was
rescheduled for September 22, 2020; November 20, 2020; December 17, 2020; and
January 14, 2021.
-15- On January 20, 2021, the Kemplins file a motion for an extension of
time to complete discovery. On February 2, 2021, they filed a motion requesting
an order of voluntary dismissal of their civil action without prejudice. The
defendants did not object to an order of dismissal.
On February 10, 2021, the Campbell Circuit Court entered an order
denying the motions for summary judgment. The trial court noted that “even under
Kentucky’s strict summary judgment standard, this case is a close call.”
On February 12, 2021, the court orally granted the Kemplins’ motion
to dismiss the action during its regularly scheduled motion docket. However,
before the court reduced the order to writing, the Kemplins filed a notice of
withdrawal of their motion for a voluntary dismissal. Following a hearing
conducted on March 12, 2021, the trial court concluded that the Kemplins’
unilateral notice of withdrawal of the motion was sufficient, ruling that the matter
would remain on the court’s active docket. On June 3, 2020, the court granted the
Kemplins’ motion for extension of time to conduct discovery, warning that “no
other extension will be granted except for extreme hardship.” The new deadline
was set for November 30, 2021.
In January 2022, after the extended deadline for discovery passed, St.
Elizabeth’s renewed its motion for summary judgment. It argued that the
Kemplins failed to provide the medical evidence necessary to show that any
-16- hospital employee violated the standard of care or caused injury. Additionally, it
argued that the Kemplins could not show that it was vicariously liable for Banire’s
actions.
Banire and Compass Emergency Physicians also renewed their motion
for summary judgment. They, too, argued that the Kemplins could not establish a
prima facie case of medical negligence. Although the Kemplins’ expert indicated
that Banire could have: 1) obtained a surgical consult or 2) prescribed antibiotics
to Andrea, they contended that Dr. Abernethy admitted that she could not opine to
a reasonable degree of medical probability that Andrea’s diagnosis, treatment,
and/or outcome would have changed in any way if Banire had taken either or both
of these actions. In response, the Kemplins filed a motion to reopen the discovery
deadline. St. Elizabeth’s, Banire, and Compass Emergency Physicians vigorously
objected.
A week later, the Kemplins filed a substantive response to the motions
for summary judgment and moved to strike the expert witness disclosures filed by
the defendants. In their response, the Kemplins argued that the hospital was liable
under provisions of EMTALA. They also argued that they had established the
elements of medical negligence. They directed the trial court to sections of Dr.
Abernethy’s deposition testimony and “to the Affidavit of Denise Abernethy M.D.,
attached hereto as ‘Exhibit 3’ in which she restates her opinion in no uncertain
-17- terms.” This is the sole reference that the Kemplins make to the affidavit, and it
does not appear to have been filed in the record. (The Kemplins’ citation to the
affidavit in the trial court’s record by specific page reference on appeal is
erroneous as it does not appear as cited.) In fact, the only copy of the affidavit in
question appearing in the trial court record is affixed to Banire’s motion to strike it.
St. Elizabeth’s, Banire, and Compass Emergency Physicians filed
replies specifically objecting to the Kemplins’ reliance upon the provisions of
EMTALA and to the filing of the post-deposition affidavit of Dr. Abernethy
because it was untimely and directly contradicted her sworn deposition testimony.
They filed separate motions to strike the affidavit. In the challenged affidavit, Dr.
Abernethy indicated that a negligent screening examination led to Banire’s alleged
misdiagnosis.
By order entered on May 13, 2022, the trial court granted the motions
for summary judgment and the motions to strike the post-deposition affidavit of
Dr. Abernethy. The Kemplins filed a notice of appeal naming in its caption St.
Elizabeth’s and Banire as appellees.
On appeal, the Kemplins contend that the trial court erred by granting
summary judgment. For our analysis, we have reordered the arguments presented
in their appellate brief.
-18- The Kemplins contend that the trial court erred by striking the post-
deposition affidavit of Dr. Abernethy. We have noted that the affidavit does not
appear to have been filed by the Kemplins. However, by addressing it, the trial
court necessarily concluded that it had been. Consequently, we address the
argument on its merits.
The Kemplins would be entitled to rely upon a post-deposition
affidavit of Dr. Abernethy only where it explained her previous sworn testimony.
See generally Gilliam v. Pikeville United Methodist Hospital of Kentucky, Inc., 215
S.W.3d 56 (Ky. App. 2006). However, they could not rely upon the affidavit to
contradict Dr. Abernethy’s previous testimony in an effort to create an issue of
material fact. Id. The trial court compared Dr. Abernethy’s affidavit with her
sworn deposition testimony and concluded that the statements contained in her
affidavit did not simply restate, clarify, or amplify her earlier opinions. Instead, it
contradicted them. We agree with that assessment.
In her post-deposition affidavit, Dr. Abernethy indicated, in part, that
“based on reasonable medical probability, [Andrea] received a negligent screening
examination leading to a missed diagnosis [at St. Elizabeth’s] on July 10, 2017.”
However, as stated above, Dr. Abernethy had indicated unequivocally in her
deposition testimony that “an emergency medicine practitioner can act completely
reasonably and within the standard of care and miss a diagnosis of bowel
-19- perforation.” Additionally, she indicated in her deposition that Andrea’s recent
medical history (i.e., her symptoms on the evening of July 10, 2017 and the results
of Banire’s physical examination) was inconsistent with a diagnosis of acute
complicated diverticulitis or a surgical abdomen. In her deposition, she opined that
it was reasonable for Banire and the radiologist to rely upon the prior CT scan and
for Banire not to order repeat imaging -- particularly given the known cancer risks
posed.
While Dr. Abernethy indicated in her deposition that the standard of
care under the circumstances required an emergency care provider to consider
acute diverticulitis as a diagnosis, she freely admitted that she could not say that
Banire had failed to do so. Banire testified that he had specifically considered this
diagnosis.
Although Dr. Abernethy opined in her deposition that the standard of
care could require an “abdominal series with an upright view” or a CT scan, she
agreed that under the facts and circumstances of this case it was reasonable for
Banire not to order the abdominal series and reasonable for him not to repeat the
abdominal CT scan. Moreover, she specifically agreed in her deposition that it
would have been reasonable for Banire to defer to Dr. Stewart’s judgment with
respect to the need for a repeat CT scan. Ultimately, Dr. Abernethy indicated in
her deposition that under the facts and circumstances, she could not take exception
-20- to Banire’s discharge diagnosis of “generalized abdominal pain.” This testimony
directly contradicts that part of Dr. Abernethy’s subsequent affidavit indicating that
Andrea received a negligent screening examination leading to a missed diagnosis.
In her post-deposition affidavit, Dr. Abernethy also indicated, in part,
that “had [Andrea] been appropriately screened and diagnosed, she would more
likely than not have avoided septic shock with end organ damage including cardiac
arrest, heart failure, renal failure, and the need for emergency colon resection.”
However, in her sworn deposition testimony, Dr. Abernethy indicated
unequivocally that she could only speculate if asked whether Andrea’s outcome
would have changed in any way if Banire had requested a surgical consult on the
evening of July 10, 2017. Furthermore, she specifically declined in deposition
testimony to state to a reasonable degree of medical probability that beginning a
course of antibiotics on the evening of July 10, 2017, would have altered her
outcome. Because the contents of Dr. Abernethy’s affidavit expressly contradict
her earlier sworn testimony rather than explaining or supplementing it, the trial
court did not err by refusing to consider it. Gilliam, supra.
The Kemplins also challenge the trial court’s refusal to strike certain
hospital consent forms that it contends were unauthenticated as well as summaries
of expert opinion testimony offered by St. Elizabeth’s in its witness disclosure.
However, as the Kemplins concede, the trial court expressly stated that it would
-21- not consider the disputed documents in its analysis of the motions for summary
judgment. If there was any error, it was harmless.
The Kemplins argue that even without the challenged affidavit, the
trial court erred by concluding that they failed to produce evidence sufficient to
show that a breach of the standard of care caused their alleged injuries. They
contend that Dr. Abernethy’s deposition testimony was sufficient to establish
causation and that summary judgment was awarded in error. We disagree.
In most medical malpractice cases, plaintiffs are required to put forth
expert medical testimony both to establish the applicable standard of care and to
show a breach of the standard of care. Blankenship v. Collier, 302 S.W.3d 665
(Ky. 2010). Plaintiffs must also show through expert testimony that a breach of
the standard of care was a proximate cause of injury. Ashland Hosp. Corp. v.
Lewis, 581 S.W.3d 572 (Ky. 2019). In order to be the proximate cause of an
injury, the conduct in question must be a substantial factor in causing the injury.
Id. Moreover, causation “must be shown by a reasonable degree of medical
probability, rather than mere possibility or speculation.” Id. at 578. “[T]he
medical testimony must be that an alleged negligent act probably caused the
injury[.]” Jackson v. Ghayoumi, 419 S.W.3d 40, 45 (Ky. App. 2012). The
Kemplins have never disputed that expert testimony was necessary to prove their
-22- contention that St. Elizabeth’s and Banire were negligent in diagnosing and/or
treating Andrea on July 10, 2017.
In its order granting summary judgment, the trial court observed that
the Kemplins had not produced sufficient evidence to establish that any breach in
the standard of care by Banire caused the alleged injuries. It concluded that the
Kemplins did not produce sufficient evidence to show that any employee of St.
Elizabeth’s had acted negligently.
Summary judgment is properly granted where “the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR2 56.03. Because summary judgment involves only questions of law and
not the resolution of disputed material facts, we do not defer to the trial court’s
decision. Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378 (Ky.
1992). Instead, we review the decision de novo. Cumberland Valley Contrs., Inc.
v. Bell County Coal Corp., 238 S.W.3d 644 (Ky. 2007).
Before the trial court, “[t]he moving party bears the initial burden of
showing that no genuine issue of material fact exists, and then the burden shifts to
the party opposing summary judgment” to present evidence establishing an issue
2 Kentucky Rules of Civil Procedure.
-23- for trial. Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001). That is,
“[t]he party opposing a properly presented summary judgment motion
cannot defeat it without presenting at least some affirmative evidence showing the
existence of a genuine issue of material fact for trial.” City of Florence, Kentucky
v. Chipman, 38 S.W.3d 387, 390 (Ky. 2001).
The Kemplins alleged that Andrea’s bowel perforated and she
required emergency surgery as a result of the medical negligence that occurred in
the emergency room on the evening of July 10, 2017. They argued that Banire’s
breach of the standard of care caused him to misdiagnose Andrea, and that if she
had been properly diagnosed, Andrea probably would have avoided septic shock
and the need for emergency surgery. In their motions for summary judgment, St.
Elizabeth’s and Banire challenged the sufficiency of the Kemplins’ proof of the
allegations. Given the state of the record, they contended that the Kemplins could
not establish a prima facie case of negligence.
We begin by noting that Dr. Abernethy’s “feeling” that Dr. Stewart
might have recommended a repeat CT scan had he personally evaluated Andrea
was wholly speculative. While she criticized Banire’s decisions not to prescribe
antibiotics and/or not to order a repeat CT scan or an upright view x-ray, she
admitted that Andrea’s symptoms were inconsistent with acute complicated
diverticulitis and/or a surgical bowel and that the standard of care did not require
-24- Banire to disregard Dr. Stewart’s input following their discussions or the
radiologist’s comparison of the supine x-ray and the previous CT scan.
Nor does Dr. Abernethy’s opinion that a surgeon “would have
probably asked for a repeat CT scan” establish that Banire breached the applicable
standard of care. Ultimately, as far as it can be discerned, it was Dr. Abernethy’s
opinion that Banire would have breached the standard of care if he had failed to
consider a diagnosis of acute diverticulitis. However, the only evidence of record
indicates that he did just that.
Moreover, Dr. Abernethy agreed that if Banire had called for a
surgeon on the evening of July 10, 2017, Andrea “may have had the exact same
outcome.” She admitted that it was within a surgeon’s expertise and not her own
to establish whether beginning antibiotics on the evening of July 10, 2017, would
have prevented the bowel perforation. She did not conclude that any hospital
employee or agent breached the standard of care with respect to the care or timing
of the surgery performed on July 11, 2017. In fact, she admitted that she did not
know the standard of care for surgery performed at the hospital.
Dr. Abernethy’s deposition testimony does not indicate that Banire
and/or St. Elizabeth’s breached the applicable standard of care. She was unable to
state with a reasonable degree of medical probability that the conduct of either
Banire or any employee of St. Elizabeth’s was a substantial factor in causing
-25- injury. The expert opinion evidence in this matter was insufficient to raise a
genuine issue of material fact. Consequently, the trial court did not err by granting
summary judgment with respect to the negligence claims.
Separately, the Kemplins argue that expert medical testimony with
respect to causation is not necessary to establish Andrea’s “lesser injuries.” They
describe the “lesser injuries” as Andrea’s “pain and injuries worsening on July 10,
and the severe convulsions and resulting fall she suffered on July 11.” They
contend that expert medical testimony is not necessary because any layman could
conclude from common knowledge and experience that such injuries do not
happen where proper skill is exercised and care taken.
There is no medical evidence indicating that Andrea was given
penicillin, no evidence that she suffered with convulsions as a result, and no
evidence that she fell off the operating room table before surgery. There is no
admissible evidence of record of any kind to support these allegations. Whether
the injection of penicillin could have been a substantial factor in causing
convulsions and whether Andrea suffered injury as a result are plainly not a matter
of common knowledge or experience.
The Kemplins also argue that Andrea suffered worsening symptoms
and additional pain as a result of a premature discharge from the hospital. This
allegation, too, requires an expert’s opinion. The decision to discharge a patient
-26- involves medical judgment and is outside the scope of common knowledge or
experience. The trial court did not err by rejecting the Kemplins’ contention that
expert opinion was unnecessary to establish a prima facie case of negligence with
respect to these separate allegations.
Finally, the Kemplins argue that the trial court erred by concluding
that St. Elizabeth’s was entitled to judgment as a matter of law because the
Kemplins failed to establish the hospital’s standard of care through an expert
witness. They contend that the relevant standard of care is established by the
provisions of EMTALA. We disagree.
EMTALA was enacted by Congress in 1986 to prevent hospital
emergency rooms from “dumping” patients (who lack insurance and cannot pay for
their care) by referring them to other care providers. Martin v. Ohio Cnty. Hosp.
Corp., 295 S.W.3d 104 (Ky. 2009). The intent of the statute is to ensure that an
emergency room care provider does not avoid screening a patient or transfers the
patient for non-medical reasons before the emergency condition is stabilized. Id.
It did not create a federal malpractice cause of action. Id.
EMTALA applies to all hospitals that participate in the federal
Medicare program and imposes two primary obligations on those hospitals. First,
when an individual shows up for treatment at a hospital’s emergency room, “the
hospital must provide for an appropriate medical screening examination . . . to
-27- determine whether or not an emergency medical condition” exists. 42 U.S.C. §
1395dd(a). Second, if the screening examination indicates that an emergency
medical condition does exist, the hospital must ordinarily “stabilize the medical
condition” before transferring or discharging the patient. Id. § 1395dd(b)(1)(A).
The provisions of EMTALA were “not intended to guarantee proper diagnosis or
to provide a federal remedy for misdiagnosis or medical negligence.” Trivette v.
North Carolina Baptist Hosp., Inc., 131 N.C. App. 73, 75 (1998) (citing Power v.
Arlington Hosp. Ass’n, 42 F.3d 851 (4th Cir. 1994)). Once EMTALA's screening
requirements are met, the patient's subsequent diagnosis and medical care become
the hospital's legal responsibility. The legal adequacy of its diagnosis and
subsequent care is governed by state malpractice law -- not by EMTALA. See
Trivette v. North Carolina Baptist Hosp., Inc., supra. Consequently, the trial court
did not err by concluding that the provisions of EMTALA do not relieve the
Kemplins from establishing the requisite standard of care in an effort to prove their
case.
We affirm the summary judgment of the Campbell Circuit Court.
ALL CONCUR.
-28- BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE ST. ELIZABETH HEALTHCARE D/B/A Mark A. Humbert ST. ELIZABETH FORT THOMAS: Lindsay N. Foltz Cincinnati, Ohio Ryan M. McLane Olivia C. Keller Charles T. Lester, Jr. Covington, Kentucky Fort Thomas, Kentucky BRIEF FOR APPELLEE ABDUL LATIF BANIRE, PA-C:
Joel L. Peschke Loveland, Ohio
-29-