Brown v. Griffin

505 S.W.3d 777, 2016 Ky. App. LEXIS 190, 2016 WL 6818920
CourtCourt of Appeals of Kentucky
DecidedNovember 18, 2016
DocketNO. 2014-CA-001049-MR
StatusPublished
Cited by41 cases

This text of 505 S.W.3d 777 (Brown v. Griffin) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Griffin, 505 S.W.3d 777, 2016 Ky. App. LEXIS 190, 2016 WL 6818920 (Ky. Ct. App. 2016).

Opinion

OPINION

NICKELL, JUDGE:

Ashley Brown has appealed from the May 12, 2014, order of the Daviess Circuit Court granting summary judgment in favor of Eric P. Griffin, M.D., and The Women’s Pavilion, P.S.C.,1 on her claim for damages resulting from medical malpractice. Following a careful review of the briefs, the record and the law, we affirm.

On December 28, 2010, Brown underwent a total laparoscopic hysterectomy with left salpingo-oophorectomy and evaluation of the right ovary and tube performed by Dr. Griffin using a robotically-assisted da Vinci surgical system. The operative/procedure note dictated by Dr. Griffin indicated an inspection of the pelvis was undertaken, the course of both ureters was identified, all structures were freed up and removed, and the procedure was' concluded without any noted complications. However, during the procedure Brown sustained an accidental and unnoticed injury to her right distal ureter. The injury manifested itself several days later and the resulting complications required multiple additional surgical interventions to correct.

On December 27, 2011, Brown filed the instant suit alleging Dr. Griffin failed to exercise appropriate care, negligently caused Brown’s injury, and compounded the injury by negligently and unreasonably failing to identify the injury before concluding the initial surgical procedure. The suit állegéd Dr. Griffin was acting as an agent for The Women’s Pavilion, P.S.C., at the time of the surgery. Little activity occurred in the suit. Brown responded to initial discovery requests and gave her deposition on May 17, 2012. On August 2, 2012, Brown deposed Dr. Griffin. On September 13, 2012, Dr. Griffin deposed Brown’s treating physician, Dr. David P. Russell. The case then went dormant with no additional pleadings being filed and no further discovery being conducted.

On October 14, 2013, the trial court entered a notice indicating no pretrial step had been taken for more' than one year [780]*780and that the action would be dismissed for lack of prosecution on December 3, 2013, unless an affirmative step was taken showing good cause for the action to continue. Four days later, Dr. Griffin moved to dismiss the action based on Brown’s failure to prosecute the case in any fashion since August of 2012. Brown finally responded to the trial court’s notice and Dr. Griffin’s motion on December 2, 2013, briefly restating her view of the facts of the case, indicating she had consulted with experts and would be able to identify her testifying experts within a short amount of time, and requesting a scheduling order putting her on a strict deadline to identify such experts by March 1, 2014. Brown asked that the case be permitted to move forward and not be dismissed. Following a hearing at which the trial court expressed its dismay at the lack of progress in the matter, a scheduling order was entered giving Brown until February 15, 2014, to identify her expert witnesses and provide detailed summaries of their opinions and expected testimony pursuant to CR2 26.02(4). At the hearing the trial court indicated dismissal was a viable possibility should Brown fail to timely file her expert disclosures. Dr. Griffin was given until April 30 to likewise identify his expert witnesses. The order set a final discovery deadline for June 15, 2014, and required the parties to schedule a motion in June 2014 to set a trial date.

The day before she was to identify her expert witnesses, Brown moved the trial court for an extension3 to do so, alleging necessary information had not yet been finalized. Dr. Griffin filed an objection to the extension, renewed his motion to dismiss for failure to prosecute, and alternatively moved for summary judgment based on Brown’s failure to offer any expert opinion supportive of her claim that Dr. Griffin deviated from the standard of care or in any way caused or contributed to her injuries, and thus had failed to establish a prima, fade case of medical negligence. At a hearing on her motion, Brown assured the trial court she could comply with the disclosure requirements within sixty days and no further extensions would be requested. Brown further indicated her understanding “fully of what the court would do in sixty days.” Over Dr. Griffin’s objection, the trial court granted Brown an additional extension of time until April 15, 2014, to tender her expert disclosure.

Two weeks after the passing of the extended deadline, Brown had still not tendered the required disclosures, prompting Dr. Griffin to renew his motions to dismiss and/or for summary judgment. One week later. Brown submitted what purported to be an expert disclosure under CR 26.02 as well as a response to Dr. Griffin’s summary judgment motion. The disclosure— designated as a third supplemental response to Dr. Griffin’s interrogatories— listed Dr. Griffin and Dr. Russell as experts who were expected to testify consistently with their earlier depositions. Also listed was Bruce W. Romick, M.D., who was expected to testify as an expert in robotic-assisted surgical procedures and to offer his opinions regarding maintaining awareness of the ureter during procedures and explaining experience levels to patients, especially when a physician is new to proposed procedures. In her response to Dr. Griffin’s summary judgment motion, Brown alleged Dr. Griffin’s own testimony established the entirety of her case and elucidated an additional issue relative to informed consent wherein she argued Dr. [781]*781Griffin failed to inform Brown of his relative inexperience with operating using the da Vinci system. She argued a jury could infer the appropriate standard of care from the testimony contained in the depositions of record and further infer that Dr. Griffin’s “newness” in robotically-assisted surgery contributed to her injury.

Following a hearing, the trial court determined Brown had failed to disclose the existence of any expert who would testify as to the appropriate standard of care or that Dr. Griffin had breached that standard of care in treating Brown. The court concluded she could not carry her burden of proof, granted Dr. Griffin’s motion for summary judgment, and dismissed all pending claims. This appeal followed.

Brown raises three contentions in seeking reversal. First, she argues summary judgment was improperly granted because Dr. Griffin’s admissions in his deposition were of a technical nature and of such magnitude that a jury could infer he acted negligently and the jury could infer from its own common experience that injury to an inappropriate part of the anatomy constituted negligence. In so arguing, Brown posits no expert testimony relative to the appropriate standard of care nor its breach are required under the circumstances. Second, Brown alleges Dr. Russell’s testimony, coupled with the proffered testimony of Dr. Romick, was sufficient to establish a breach of the standard of care even though neither used those “magic words” in their testimony. Finally, Brown contends the trial court erroneously granted summary judgment as a sanction for the delay in disclosing her expert witnesses. We shall address Brown’s first two arguments in tandem as they are interrelated before commenting briefly on her third and final argument.

CR 56.03 provides summary judgment is appropriate when no genuine issue of material fact exists and the moving party is therefore entitled to judgment as a matter of law.

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Cite This Page — Counsel Stack

Bluebook (online)
505 S.W.3d 777, 2016 Ky. App. LEXIS 190, 2016 WL 6818920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-griffin-kyctapp-2016.