Diagnostic X-Ray Physicians, Psc (Dxp) v. Deborah Lloyd

• Court: Kentucky Supreme Court
• Decided: June 25, 2026
• Docket: 2024-SC-0216
• Status: Published

Opinion

RENDERED: JUNE 25, 2026 TO BE PUBLISHED

Supreme Court of Kentucky 2024-SC-0216-DG

DIAGNOSTIC X-RAY PHYSICIANS, PSC APPELLANTS (DXP); CHRISTOPHER DALE HENLEY M.D.; AND DARREN CAIN M.D.

ON REVIEW FROM COURT OF APPEALS V. NO. 2023-CA-0748 JEFFERSON CIRCUIT COURT NO. 20-CI-005331

DEBORAH LLOYD; NORTON APPELLEES HOSPITALS, INC. D/B/A NORTON'S WOMEN'S AND CHILDREN'S HOSPITAL; AND SHEILA SLONE KCSA

AND

2024-SC-0224-DG

SHEILA SLONE KCSA APPELLANT

ON REVIEW FROM COURT OF APPEALS V. NO. 2023-CA-0748 JEFFERSON CIRCUIT COURT NO. 20-CI-005331

DEBORAH LLOYD; CHRISTOPHER APPELLEES DALE HENLEY M.D.; DARREN CAIN M.D.; DIAGNOSTIC X-RAY PHYSICIANS, PSC (DXP); AND NORTON HOSPITALS, INC. D/B/A NORTON'S WOMEN'S AND CHILDREN'S HOSPITAL OPINION OF THE COURT BY JUSTICE KELLER

REVERSING

These consolidated appeals arise from allegations of medical negligence

against a surgical assistant and certain radiologists following Deborah Lloyd’s

(“Lloyd”) total knee replacement surgery, during which a suturing needle was

inadvertently left inside her knee after becoming dislodged from its holder

during suturing. In this opinion, we revisit the requirement that expert

testimony is necessary to establish the standard of care in medical negligence

actions. We also address the nuances of our res ipsa loquitur doctrine as it

pertains to the concept of exclusive control in cases involving foreign objects

retained in a surgical patient’s body. Having granted discretionary review,

heard oral arguments, and carefully examined the record, we reverse the Court

of Appeals and reinstate the trial court’s grants of summary judgment in favor

of the appellants.

FACTUAL AND PROCEDURAL BACKGROUND

On December 20, 2019, Dr. Sean Griffin (“Dr. Griffin”), an orthopedic

surgeon, with surgical assistant Sheila Slone (“Slone”) assisting under Dr.

Griffin’s direct supervision, performed a total knee replacement surgery on

Deborah Lloyd’s right knee at Norton Hospitals, Inc. d/b/a Norton’s Women’s

and Children’s Hospital (“Norton”). Slone used a suturing needle to close the

incision. Shortly prior to full closure of the incision, it became apparent to

Slone that a suturing needle had dislodged from its holder and was missing.

Slone attempted to locate the needle through a visual search and by

2 “palpat[ating] the area” but was unsuccessful. Slone immediately reported the

loss of the needle, and the entire surgical team, including Slone and Dr. Griffin,

searched for the needle. When no needle was found, Dr. Griffin ordered an x-

ray of Lloyd’s knee to determine whether the needle was inside her knee. Dr.

Darren Cain (“Dr. Cain”), a radiologist, reviewed the x-ray. Dr. Cain noted that

“[t]here is no unexpected radiopaque foreign body identified.” Dr. Griffin also

reviewed the x-ray and apparently failed to observe the needle. Dr. Griffin

concluded that the needle was likely lost, and he decided against re-opening

the incision to continue searching for the needle. Lloyd’s surgery was allowed

to conclude, and Lloyd was not advised of the possibility that a foreign object

had been left inside her after the surgery. As was customary, another x-ray

was taken in the recovery room to assess the outcome of the surgery. Dr.

Christopher Henley (“Dr. Henley”), a radiologist, reviewed the x-ray but, like Dr.

Griffin and Dr. Cain, appears to have failed to observe the needle.

On January 16, 2020, Lloyd attended a post-operative follow-up visit

with Dr. Griffin. Dr. Griffin ordered another x-ray of Lloyd’s right knee. Dr.

Griffin charted in Lloyd’s medical record that Lloyd was overall doing well, but

that she had a metallic foreign body of unknown origin in her right knee. Dr.

Griffin noted that the foreign body was not palpable and did not appear to be

affecting her, although he also noted that she appeared to have some delayed

healing and blistering. He did not address the foreign object at that time.

3 On February 3, 2020, Lloyd returned to see Dr. Griffin for another follow-

up. This time, Dr. Griffin noted that Lloyd’s knee had developed “superficial

dehiscence” which may have been at least partially caused by the foreign body.

On February 7, 2020, the needle was removed and the wound cleaned

during a follow-up procedure. In Lloyd’s medical record, Dr. Griffin noted that

Lloyd had originally done well after the initial knee replacement,

but she developed central wound dehiscence that was progressive. Her wound began draining serous fluid. Postoperative x-rays revealed metallic foreign body in the anterior soft tissues of the knee. Wound revision with treatment of the surgical wound dehiscence and removal of the foreign body were indicated in order to prevent further infectious complications, including knee sepsis.

Dr. Griffin also noted that the foreign object appeared to be a suture needle.

Dr. Griffin did not prescribe additional antibiotics, “as this did not represent an

infection.”

Expert disclosures in the record indicate that Lloyd underwent a third

surgery on February 28, 2020, to remedy the effects of the retained needle.

Additionally, Lloyd had to undergo long term antibiotic use and chronic

suppressive therapy, which caused further health complications and harm to

Lloyd.

Lloyd filed suit in Jefferson Circuit Court in September 2020, originally

naming Slone, Dr. Griffin, Norton, and Ellis and Badenhausen Orthopaedics,

P.S.C. as defendants. Lloyd later amended her complaint to add Dr. Henley,

Dr. Cain, and Diagnostic X-Ray Physicians, P.S.C. (collectively, “Radiologists”)

as defendants. Dr. Griffin reached a settlement with Lloyd and has been

dismissed as a defendant from this case. 4 Kentucky Rules of Civil Procedure (“CR”) 26.02 states that a party may

be required 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.

A scheduling order directed Lloyd to identify her experts and provide

disclosures by April 2022. Lloyd identified her expert witnesses as Dr.

Morrison, an infectious disease expert, and Dr. Dysart, an orthopedic surgeon.

Dr. Morrison’s disclosure centered around criticisms of Dr. Griffin and did not

specifically criticize the Radiologists or Slone. Because Dr. Griffin is no longer

a party to this action, only Dr. Dysart’s disclosures are relevant for our

purposes.

As it relates to Dr. Dysart’s expected testimony, Lloyd disclosed:

Dr. Dysart is expected to testify that Defendants’ medical care and treatment of Ms. Lloyd was below the standard of good and proper medical care during her care and treatment at Norton Women’s and Children’s Hospital for her complex right total knee replacement procedure of December 20, 2019. Dr. Sean Griffin failed to locate, remove, and document a suture needle retained by Plaintiff during her surgery due to the actions of the surgical assistant, Sheila Slone. Dr. Griffin failed to properly notify the patient and document the retained suture needle, which had been confirmed by an incorrect instrument count. Retained foreign bodies are known to cause great risk to patients, including but not limited to infection and/or sepsis, possible re-operation, readmissions and prolonged hospital stays, severe pain, and even death.

He is further expected to testify that [the Radiologists] had a duty to review, identify, and document the intra-operative and post- operative x-rays, showing the retained suture needle, and failed to do so. Failing to locate, identify, and remove the retained suture needle caused a delay in treatment and significant harm to [Lloyd], including but not limited to an infection which required two 5 subsequent surgeries on February 7, 2020 and February 28, 2020, as well as long-term antibiotic use and chronic suppressive therapy which caused further health consequences and harm to [Lloyd].

Dr. Dysart was deposed on August 16, 2022. During this deposition, Dr.

Dysart went beyond the scope of his disclosures and written report in

criticizing Norton, the Radiologists, and Slone. Dr. Dysart also testified that he

could not opine on the standard of care applicable to radiology:

Q: All right. Do you intend on testifying at trial that Dr. [Cain] failed to act as a reasonable radiologist under like or similar circumstances in the services he provided to Ms. Lloyd?

A: I’m not a radiologist.

Q: That’s the tenor of my question.

A: So reasonable will have to go to an expert. All I can say is he missed a foreign body. I can say that.

Q: All right. And I understand that. I want you to presume that the question the jury will be given in this case was whether Dr. [Cain] failed to act as a reasonable radiologist under like or similar circumstances. And from what I gather from you, you are not prepared to say that because you are not a radiologist; correct?

A: So I would — I would defer to radiology. Now, from an orthopedic opinion, he missed it.

Q: However, you’re not going to testify that Dr. [Cain], or Dr. Henley, for that matter, failed to act as a reasonable radiologist under like or similar circumstances; true?

A: I don’t know what reasonable means in terms of the Academy of Radiology. Let them answer that question.

....

Q: All right. And you understand from this case that Dr. [Cain] is a radiologist, as is Dr. Henley; correct?

A: Yes, sir.

6 Q: And they would have completed different residency programs than you; correct?

A: Of course, yes.

Q: All right. And they would, when applying for privileges for the hospital, have applied for different privileges than you; correct?

A: Sure

Q: All right.

A: Yeah, sure.

Q: And they would be board-certified by a different specialty board than you; correct?

A: Are they board-certified?

Q: Yes.

A: I didn’t – okay. Yes, sir.

Q: Okay. And would belong to different professional societies than you; correct?

Q: All right. And you do not hold yourself out as a radiologist and never have and never will; correct?

A: No, sir.

Q: That is correct?

A: That’s correct.

Q: All right. And you do not consider yourself to be an expert in the field of radiology; correct?

A: Okay. So in my experience dealing with multiple radiologists, we can often read a film better than they can about a specific issue; and the reason is we see many, many more of the same thing. So in my practice, we often didn’t have radiology review films because we considered ourselves adequate and well-enough trained to read them ourselves, which is what we do routinely. So there are certain 7 situations that we actually are more appropriate reviewing the film than they are. I will tell you that.

Q: All right. Do you consider yourself to be a radiology expert?

A: Oh, no, sir.

Q: All right. Do you consider yourself to know what the standard of care is in the field of radiology?

A: No sir.

Additionally, Dr. Dysart’s deposition criticized the actions of a circulating nurse

employed by Norton 1, even though such opinions were outside the scope of his

disclosure. Claiming that the deposition testimony included unexpected

testimony leading to unfair surprise, Norton moved to strike all testimony in

Dr. Dysart’s deposition transcript between pages 169 and 235 where he was

critical of the nurse. The trial court granted this motion, ordering that “the

late-disclosed opinions of Dr. Stanley Dysart contained in Dr. Dysart’s

deposition” be stricken from the record. Lloyd was unsuccessful in challenging

the trial court’s order striking the deposition testimony, which Lloyd claimed

was overbroad and struck non-surprise testimony pertaining to Dr. Dysart’s

criticisms of the Radiologists. Despite Lloyd’s extensive discussion of the

stricken portions of Dr. Dysart’s testimony, she neither filed a cross-motion nor

asked for any relief from the trial court’s order.

1 In addition to her claims against Slone, the Radiologists, and Dr. Griffin, Lloyd

also asserted claims against Norton based on the alleged actions of its employee, a circulating nurse. Aside from this brief mention, those claims are not pertinent to this appeal.

8 On November 15, 2022, Slone filed a motion for summary judgment,

arguing that

the deadline for disclosing experts has expired and Lloyd has not identified any expert who will testify that Slone breached the standard of care applicable to surgical assistants. In fact, the only evidence on the record on that issue came from Dr. Griffin, who testified that Slone did not deviate from the standard of care applicable to surgical assistants in Kentucky.

Under Kentucky law, a plaintiff is required to submit expert testimony on the issue of professional negligence, meaning Lloyd must submit expert testimony from which a jury could reasonably conclude that Slone deviated from the applicable standard of care. There is no such expert, therefore Slone is entitled to summary judgment in her favor.

Lloyd responded by acknowledging that “[i]t is accurate that both of Plaintiff’s

retained expert witnesses have given deposition testimony indicating that, in

regards to the factual events indicated in the medical records and deposition

testimony, they had no specific criticism of [Slone] regarding a breach of the

applicable standard of care,” but argued that such was not needed because the

case against Slone is one of res ipsa loquitur. 2

2 According to Black’s Law Dictionary, res ipsa loquitur is Latin for the phrase,

“the thing speaks for itself.” RES IPSA LOQUITUR, Black's Law Dictionary (12th ed. 2024). Res ipsa loquitur is defined as, The doctrine providing that, in some circumstances, the mere fact of an accident's occurrence raises an inference of negligence that establishes a prima facie case; specif., the doctrine whereby when something that has caused injury or damage is shown to be under the management of the party charged with negligence, and the accident is such that in the ordinary course of things it would not happen if those who have the management use proper care, the very occurrence of the accident affords reasonable evidence, in the absence of the explanation by the parties charged, that it arose from the want of proper care. Id.

9 On December 5, 2022, the Radiologists also filed a motion for summary

judgment, premising their motion on the fact that neither of Plaintiff’s experts

claimed that the Radiologists failed to act as a reasonable radiologist in the

same or similar circumstances and that no expert testimony was presented

addressing the applicable standard of care for a radiologist.

In a consolidated opinion and order, the trial court addressed both

motions for summary judgment. The trial court granted summary judgment in

favor of Slone, finding that res ipsa loquitur did not apply:

In the case sub judice and from the facts as they exist in the record, the only defendant who had control of the instrumentality [the suture needle] causing Plaintiff’s injury was the certified surgical assistant, Slone. Thus, while the doctrine of res ipsa loquitur could be invoked to create a rebuttable presumption of negligence on her part, that presumption has been rebutted by the facts in the record. Plaintiff stipulates that “[n]o witness has testified as to a specific act or lack thereof on the part of Ms. Slone that was contrary to the protocol in question,” and “[i]t is accurate that both of Plaintiff’s retained expert witnesses have given deposition testimony indicating that, in regards to the factual events indicated in the medical records and deposition testimony, they had no specific criticism of [Slone] regarding a breach of the applicable standard of care.” Indeed, there was testimony by Plaintiff’s expert, Dr. Dysart, that the suture needle could have become detached without any negligence on the part of Slone. While the Plaintiff opines that further discovery could unearth facts which could enable a jury to find Slone negligent, again, in reviewing a motion for summary judgment under CR 56.03, “the focus should be on what is of record rather than what might be presented at trial.” Welch [v. Am. Publ’g Co. of Ky., 3 S.W.3d 724, 730 (Ky. 1999)].

(emphasis removed). Notably, the trial court elaborated that because “the

doctrine of res ipsa loquitur is applicable only to those who had full control of

the instrumentality which caused the injury, and only Slone had such control,

the doctrine is inapplicable to Norton and the [Radiologists].” (internal

10 quotation marks omitted). The trial court also granted summary judgment in

favor of the Radiologists, finding that “neither expert has held themselves out

as experts in the field of radiology, and the Court agrees that the standard of

care and any breach thereof by radiologists is not within the common

knowledge or experience of any layman.” Lloyd filed a motion to reconsider the

trial court’s order granting summary judgment to Slone and the Radiologists,

which the trial court denied.

The Court of Appeals reversed the trial court’s grant of summary

judgment to both Slone and the Radiologists. As it pertains to the Radiologists,

the Court of Appeals based its reasoning on the qualifications of expert

witnesses:

The Radiologists assert that plaintiffs in a medical malpractice case are required to present expert testimony establishing the standard of care expected of the “class of physicians or specialists to which he belongs.” However, our caselaw indicates that once the trial court determines the expert is properly qualified, the jury is responsible for weighing the expert’s testimony. See Washington v. Goodman, 830 S.W.2d 398, 400 (Ky. App. 1992) (citations omitted) (stating factors like qualifications, experience, and training go to the weight of the testimony, not admissibility). . . . Likewise, this Court has recognized that “[t]here are numerous reported cases where a physician has been held qualified to express an opinion on medical matters outside his area of expertise.”

[T]he trial court . . . abuse[d] its discretion in determining that there was insufficient evidence in Dr. Dysart’s . . . testimony to submit to a jury on Lloyd’s claims that the Radiologists failed to diagnose or locate the suture needle. As discussed, testimony from a medical provider who specializes in a different area of medicine or who is licensed or practices in a different medical discipline may not carry as much weight with a jury.

11 Here, the trial court based its summary judgment in favor of the Radiologists on a determination that it would be impossible for Lloyd to proceed to trial without an expert qualified in the field of radiology. However, Dr. Dysart was qualified to testify regarding the Radiologists; therefore, there was a genuine issue of material fact for the jury to review.

(some internal citations omitted).

As it pertains to Slone, the Court of Appeals held that expert testimony

was not required based on the doctrine of res ipsa loquitur. The Court of

Appeals explained that “typically, ‘the plaintiff in a medical negligence case is

required to present expert testimony’ establishing both ‘the standard of skill

expected of a reasonably competent . . . practitioner’ and the proximate cause

of the injury.” (quoting Andrew v. Begley, 203 S.W.3d 165, 170 (Ky. App.

2006)).

But there are two important exceptions, one involving a situation where 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.

Perkins v. Hausladen, 828 S.W.2d 652, 655 (Ky. 1992) (internal quotation

marks and citations omitted). The Court of Appeals found that both exceptions

were applicable here to prevent summary judgment in favor of Slone.

Both Slone and the Radiologists appealed the Court of Appeals’ reversal

of summary judgment, and their appeals were consolidated. Further facts will

be developed below as necessary.

ANALYSIS

12 The Radiologists ask us to answer whether Dr. Dysart’s expert testimony

is sufficient to satisfy the requirement that, in a medical negligence case, a

plaintiff must bring forth expert testimony as to “the applicable medical

standard of care, any breach of that standard, and the resulting injury.”

Blankenship v. Collier, 302 S.W.3d 665, 675 (Ky. 2010) (citing Perkins, 828

S.W.2d at 655). Slone asks us to decide whether res ipsa loquitur eliminates

the need for expert testimony in a retained-foreign-object case where the

evidence shows that the person who controlled the object until it was lost

inside the patient was not negligent in losing it, and that a different individual

exclusively controlled the subsequent decision to continue or abandon efforts

to locate and retrieve it.

As Slone and the Radiologists raise distinct issues, their claims of error will be

addressed separately.

Standard of Review

Both the Radiologists and Slone appeal the Court of Appeals’ reversal of

summary judgment. Summary judgment “should only be used ‘to terminate

litigation when, as a matter of law, it appears that it would be impossible for

the respondent to produce evidence at the trial warranting a judgment in his

favor and against the movant.’” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807

S.W.2d 476, 483 (Ky. 1991) (quoting Paintsville Hosp. Co. v. Rose, 683 S.W.2d

255, 256 (Ky. 1985)). Furthermore, CR 56.03 states that summary judgment

should be granted if the evidence shows that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a

13 matter of law. “The record must be 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, 807 S.W.2d at 480.

“Because summary judgments involve no fact finding, this Court will

review the circuit court's decision de novo.” 3D Enters. Contracting Corp. v.

Louisville & Jefferson Cnty. Metro. Sewer Dist., 174 S.W.3d 440, 445 (Ky. 2005).

On appeal, “[t]he 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. Summary judgment is appropriate where the movant shows that the

adverse party could not prevail under any circumstances.” Pearson ex rel. Trent

v. Nat'l Feeding Sys., Inc., 90 S.W.3d 46, 49 (Ky. 2002).

To the extent that the Radiologist’s appeal concerns the trial court’s

ruling on the admissibility of Dr. Dysart’s testimony, this was an evidentiary

determination by the trial court and is reviewed for an abuse of discretion. “A

trial court's ruling on the admission of expert testimony is reviewed under the

same standard as a trial court's ruling on any other evidentiary matter.”

Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 578 (Ky. 2000).

“Generally, we review a trial court's evidentiary determinations for abuse of

discretion—'whether the trial judge's decision was arbitrary, unreasonable,

unfair, or unsupported by sound legal principles.’” Mason v. Commonwealth,

559 S.W.3d 337, 339 (Ky. 2018) (quoting Lopez v. Commonwealth, 459 S.W.3d

867, 872–73 (Ky. 2015)).

14 Radiologists

Lloyd’s case against the Radiologists hinges on whether she can proceed

with only Dr. Dysart’s expert testimony in her medical negligence case against

the Radiologists. 3 “As explained previously, a plaintiff bringing a typical

medical malpractice case is required by law to put forth expert testimony to

inform the jury of the applicable medical standard of care, any breach of that

standard and the resulting injury.” Blankenship, 302 S.W.3d at 675 (citing

Perkins, 828 S.W.2d at 655). No party disputes that, while Dr. Dysart’s

testimony does critique the Radiologists and allege that they have fallen short

of their standard of care, his testimony does not name what that standard of

care for radiologists is. On the contrary, Dr. Dysart admitted under oath that

he does not know the standard of care for radiologists.

The Court of Appeals held that Dr. Dysart was qualified to testify despite

specializing in a different area of medicine, and that after passing the initial

threshold for qualifying as an expert, the question of credibility was left to the

jury. The Court of Appeals explained that, while Dr. Dysart is an orthopedic

surgeon and not a radiologist, “[t]here are numerous reported cases where a

physician has been held qualified to express an opinion on medical matters

outside of his area of expertise.” (quoting Owensboro Mercy Health Sys. v.

Payne, 24 S.W.3d 675, 677–78 (Ky. App. 1999)). The Court of Appeals

3 Per CR 26.02 and the trial court’s scheduling order which set a deadline for

expert disclosures which has now passed, Dr. Dysart’s testimony will be limited in scope to that which was disclosed in Lloyd’s expert disclosure.

15 explained that “testimony from a medical provider who specializes in a different

area of medicine or who is licensed or practices in a different medical discipline

may not carry as much weight with a jury.” (citing Payne, 24 S.W.3d at 677–

78). Nevertheless, the Court of Appeals concluded that,

the trial court based its summary judgment in favor of the Radiologists on a determination that it would be impossible for Lloyd to proceed to trial without an expert qualified in the field of radiology. However, Dr. Dysart was qualified to testify regarding the Radiologists; therefore, there was a genuine issue of material fact for the jury to review. See Goodman, 830 S.W.2d at 400. Thus, as to the Radiologists, we reverse the summary judgment in their favor.

None of this is untrue — it just misapprehends the actual issue at hand.

The Court of Appeals incorrectly framed the issue as “whether it would

be impossible for Lloyd to proceed against the Radiologists without expert

testimony from a physician in the same specialty.” Whether Dr. Dysart meets

the baseline qualification to testify against Radiologists is not the present

controversy. Indeed, as the Court of Appeals points out, “[a] physician or other

medical provider is not automatically disqualified from testifying against a

defendant who specializes in a different area of medicine or who is licensed or

practices in a different medical discipline.” Tapp v. Owensboro Med. Health

Sys., Inc., 282 S.W.3d 336, 341 (Ky. App. 2009). Dr. Dysart could testify, and

his “special knowledge skill, experience, training, or education” would likely

“assist the trier of fact to understand the evidence or to determine a fact in

issue.” See Kentucky Rule of Evidence (“KRE”) 702.

However, even if this case goes to trial and Dr. Dysart testifies, one vital

piece will still be lacking – Lloyd still has no expert to testify as to the standard

16 of care for the Radiologists. Dr. Dysart can assist with testifying as to varying

aspects of a radiologists’ duties and how he has typically seen them performed,

but one thing he has specifically said he cannot do is recite the standard of

care for radiologists. The time afforded to Lloyd to identify her experts has

passed, and unfortunately for her, the aggregate of her two experts still leaves

her coming up short as to the standard of care for radiologists. Expert

testimony as to the applicable standard of care is a requirement in medical

negligence cases:

[A] plaintiff bringing a typical medical malpractice case is required by law to put forth expert testimony to inform the jury of the applicable medical standard of care, any breach of that standard and the resulting injury. Perkins[], 828 S.W.2d at 655. A jury trial without the requisite proof is a futile exercise, wasteful of judicial time, jurors' time and the litigants' time and resources. CR 56 is intended to avoid such unnecessary proceedings. Neal v. Welker, 426 S.W.2d 476, 479-80 (Ky. 1968) “the curtain must fall at some time upon the right of a litigant” to put forth the most basic level of proof and the plaintiff's bare assertion “that something will turn up' cannot be made basis for showing that a genuine issue as to a material fact exists”; Green v. Owensboro Medical Health System, Inc., 231 S.W.3d 781, 784 (Ky. App. 2007) (the trial court properly granted summary judgment for the defendant doctor because the plaintiff, by not identifying any expert witnesses, “failed to introduce evidence sufficient to establish the respective applicable standard of care”).

Blankenship, 302 S.W.3d at 675 (emphasis added).

While Lloyd contends that Dr. Dysart “has performed hundreds of knee

replacements and knows the standard of care for the procedure and role of the

radiologist,” this is in direct contradiction to Dr. Dysart’s own admissions that

he does not know the standard of care for radiologists. In his deposition, he

was directly asked, “[d]o you consider yourself to know what the standard of

17 care is in the field of radiology?” to which Dr. Dysart clearly and plainly

responded, “[n]o sir.” While Dr. Dysart might assist the jury in other aspects of

the case, he, by his own admission, is unable to assist the jury with

determining the standard of care for radiologists, an essential element for a

medical negligence case.

Lloyd contends that Dr. Dysart “admitted during his deposition that he is

not a radiologist [he is an orthopedic surgeon] but he has knowledge of the role

of the Radiologist and what is expected of one doing the imaging for this

operation which he has done hundreds of times.” Lloyd also cites Dr. Dysart

for his assertion that the Radiologists’ oversight was a “stunning miss” as

evidence that the standard of care was breached, even though Dr. Dysart

declined, in the first place, to define the standard of care.

Different medical specialties have different standards of care, and one

will only be held to the standard of care in the specialty in which they are

trained. “In the arena of medical negligence, controlling Kentucky authority

imposes upon a physician the duty to ‘use that degree of care and skill which is

expected of a reasonably competent practitioner in the same class to which [the

physician] belongs acting in the same or similar circumstances.’” Mitchell v.

Hadl, 816 S.W.2d 183, 185 (Ky. 1991) (quoting Blair v. Eblen, Ky., 461 S.W.2d

370, 373 (Ky. 1970)). While Lloyd implicitly argues that Dr. Dysart’s assertion

that the Radiologists made a “stunning miss” is sufficient to imply that the

standard of care was breached, it is impossible to know that a standard was

not met without first defining the standard. We are unwilling to extend the

18 requirement that an expert specify the relevant standard of care to include

testimony that does not define the standard of care but instead invites the

finder of fact to construct the standard of care through a series of inferences.

We are also unwilling to substitute the requirement that a medical

negligence plaintiff present proof of the standard of care with the requirement

that the plaintiff present proof of breach of the standard of care. Our

jurisprudence in this area has always treated the two as distinct requirements,

both of which the plaintiff must prove through expert testimony. See

Blankenship, 302 S.W.3d at 667 (“Pursuant to Kentucky law, in most medical

malpractice cases, a plaintiff is required to put forth expert medical testimony

to establish the applicable standard of care, any breach that occurred and

any resulting injury to the plaintiff.” (emphasis added)); Savage v. Three Rivers

Med. Ctr., 390 S.W.3d 104 (Ky. 2012) (“Upon examination of the testimony, it is

apparent that it does not identify with specificity the relevant standard of care

applicable to a surgeon in a retained object case, nor does it examine [medical

defendant]'s specific conduct during the surgery so as to demonstrate how he

breached the relevant standard of care. . . . Because [Plaintiff] failed to meet its

burden of establishing by expert testimony the standard of care imposed upon

[medical defendant] in a surgery such as this, and that he breached that

standard of care by his specific actions or failure to act, the trial court properly

denied [plaintiff]'s request for an apportionment instruction.” (emphasis

added)); Baptist Healthcare Sys., Inc. v. Miller, 177 S.W.3d 676, 680–81 (Ky.

2005) (“As the standard of care is not within the scope of common experience of

19 jurors, requiring expert testimony as to the standard of care of a phlebotomist

was a proper exercise of trial court discretion.”); Lloyd v. Norton Hosps., Inc.,

No. 2023-CA-0748-MR, 2024 WL 1685440 (Ky. App. Apr. 19, 2024), review

granted (Oct. 16, 2024), not to be published (“typically, ‘the plaintiff in a

medical negligence case is required to present expert testimony’ establishing

both ‘the standard of skill expected of a reasonably competent . . . practitioner’

and the proximate cause of the injury”) (quoting Andrew, 203 S.W.3d at 170).

Further, what may be a “stunning miss” to one specialty is not

necessarily to another specialty. Dr. Dysart testified that in the context of

orthopedic radiology, he thinks he is more qualified to render an opinion in this

case than a radiologist. If we accept this as true, what might be a “stunning

miss” to him still might not fall below the standard of care for radiologists in

general. Dr. Dysart testified that he is unable to testify as to what the

American College of Radiology standards are. Without a specific standard of

care, the rest is pure speculation. We can only hold a professional to the

standards relevant to their level of training and credentialing. To analogize

simply, we cannot hold a paramedic to the same standards as we hold a

cardiologist, although both are trained to recognize and respond to cardiac

emergencies. The same is true here — although both radiologists and

orthopedic surgeons share some competencies, each specialty undergoes a

distinct level of education and training. It would be unfair to hold one specialty

to the standards of another when one receives vastly greater or different

training.

20 “In a medical malpractice action, where a sufficient amount of time has

expired and the plaintiff has still ‘failed to introduce evidence sufficient to

establish the respective applicable standard of care,’ then the defendants are

entitled to summary judgment as a matter of law.” Blankenship, 302 S.W.3d at

668. While the Court of Appeals focused on answering whether Dr. Dysart was

qualified to opine as an expert witness, this was a distinct issue from whether

Lloyd presented expert testimony regarding the relevant standard of care of the

Radiologists. Perhaps Dr. Dysart was qualified to testify about the standard of

care of the Radiologists — he just did not. Because of this glaring omission,

summary judgment was appropriate, and we reverse the Court of Appeals’

reversal of the trial court’s grant of summary judgment in favor of the

Radiologists.

Slone

As discussed above, expert testimony is typically required to prove

medical negligence. However, expert testimony may not be required when

negligence can be presumed, such as through the doctrine of res ipsa loquitur.

As applied to this case [res ipsa loquitur] means nothing more than whether the facts and circumstances are such that negligence can be inferred, even in the absence of expert testimony. As Prosser explains, res ipsa loquitur is a “Latin phrase, which means nothing more than the thing speaks for itself,” and is simply “[o]ne type of circumstantial evidence.” Prosser and Keeton on Torts, Sec. 39 (5th ed. 1984).

Perkins, 828 S.W.2d at 654–55.

The primary question in Slone’s appeal is whether res ipsa loquitur

applies in a retained‑foreign‑object medical negligence case where the

21 defendant had exclusive control over the instrument immediately before it

became lost inside the patient, but the evidence shows that the loss occurred

without any negligence by the defendant and that the defendant had no actual

or constructive control of the instrument after it became lost. As discussed

above, the trial court found that res ipsa loquitur “could be invoked to create a

rebuttable presumption of negligence on [Slone’s] part” but “that presumption

has been rebutted by the facts in the record” — i.e., the evidence that Slone

was not negligent in her actions when the needle became separated from the

holder and became lost inside Lloyd. Consequently, the trial court granted

summary judgment in favor of Slone based upon Lloyd’s lack of expert witness

testimony proving that Slone was negligent.

The Court of Appeals reversed the trial court’s grant of summary

judgment in favor of Slone. The Court of Appeals held that, while normally

most medical malpractice claims cannot be proven without expert testimony

establishing a breach of the applicable standard of care resulting in the

plaintiff’s injuries, the case at hand met both exceptions to this rule.

Speaking to how the [res ipsa loquitur] doctrine applies to the “question of duty ... in cases of medical malpractice,” Prosser advises that “ordinarily” negligence cannot be inferred simply from an “undesirable result”; expert testimony is needed. [Prosser and Keeton on Torts, § 39, at 256 (5th ed. 1984)]. But there are two important exceptions, one involving a situation where “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”; . . . The second occurs when “medical experts may provide a sufficient foundation for res ipsa loquitur on more complex matters.” Id. at 257.

22 Res ipsa loquitur applies in medical malpractice cases when “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” or “when ‘medical experts may provide a sufficient foundation for res ipsa loquitur on more complex matters.’ ” Hausladen, 828 S.W.2d at 655 (quoting [Rose, 683 S.W.2d at 256- 57]). The former is “illustrated by cases where the surgeon leaves a foreign object in the body or removes or injures an inappropriate part of the anatomy.” Id. at 654. The latter occurs when expert testimony establishes the “type of injury was not an ordinary risk of the surgery, that the method by which it occurred was within the exclusive control of the defendant, and that the injury was not due to any voluntary action or contribution on the part of the plaintiff.” Id. at 655. In other words, “when the circumstances and the probabilities as to the causative factors of an accident lie within the ken of experts, expert evidence is necessary to establish a foundation that gives rise to an inference of negligence.” 65A C.J.S. Negligence § 820 (emphasis added).

St. Elizabeth Med. Ctr., Inc. v. Arnsperger, 686 S.W.3d 132, 138–39 (Ky. 2024).

The Court of Appeals held that this case both involved a situation where “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” and

was a situation that “medical experts may provide a sufficient foundation for

res ipsa loquitur on more complex matters.” 4 Id. Thus, the Court of Appeals

held that Lloyd need not present expert testimony to prove her case against

Slone and reversed the trial court’s grant of summary judgment in Slone’s

favor.

The res ipsa loquitur doctrine can be invoked “when a thing which

causes injury, without fault of the injured person, is shown to be under the

4 Curiously, the Court of Appeals holds this second exception applies without

explanation.

23 exclusive control of the defendant, and the injury is such as, in the ordinary

course of things, does not occur if the one having such control uses proper

care, it affords reasonable evidence, in the absence of an explanation, that the

injury arose from the defendant's want of care.” Schechter v. Hann, 205 S.W.2d

690, 692 (Ky. 1947) (emphasis added). “When the facts bring a case within the

doctrine, a presumption of negligence arises and the burden of proof is on the

defendant to rebut the presumption.” Id. Under the doctrine of res ipsa

loquitur, “[t]here may be an inference of negligence when, according to common

knowledge and experience, the accident would not have happened except for the

wrongful act of the defendant.’” Arnsperger, 686 S.W.3d at 139 (quoting Jos.

N. Rice Co. v. Grayson, 341 S.W.2d 238, 239 (Ky. 1960)) (bolded emphasis

added).

Here, in the simplest terms, res ipsa loquitur does not apply against

Slone because expert testimony establishes that she was not negligent in her

actions when the needle broke free from its holder, and she was not in control

of the needle after it left the holder. Dr. Dysart admitted that a suture needle

becoming detached from the holder can happen even if a person is being

careful, and that he “would not conclude . . . at all” that Slone had not been

careful by the fact that the needle became detached from its holder. He noted

that, “It’s happened to me; going to happen to her. It’ll happen to her again.”

In fact, when asked if he had any criticisms of the care Slone provided, Dr.

Dysart answered, “[s]he’s fine.”

24 Further, this is a case of a retained foreign object, not a case where the

initial dropping of the needle caused Lloyd harm. Had the needle been

immediately retrieved, Lloyd would have suffered no harm. It was only the

retention of the needle which caused Lloyd harm. “Applying res ipsa loquitur to

a specific defendant in a specific case requires a showing that the defendant

had full control of the instrumentality which caused the injury.” Savage, 390

S.W.3d at 113. Slone had no control over whether the needle stayed in the

patient’s body or whether more efforts were undertaken to search for the needle

after it went missing.

[A]ny number of people including the surgeon, anesthesiologist, nursing staff, and other hospital staff may be at fault for having left an offending item in a plaintiff's body. The varied business relationships which exist at modern hospitals further complicate the issue. Because of these various types of relationships, no two surgical procedures are exactly alike, and the duties and respons- ibilities of the medical care professionals will likely depend on the specific facts of each case.

Nazar v. Branham, 291 S.W.3d 599, 604 (Ky. 2009). Surgical assistants in

Kentucky have a limited scope of permitted activities. KRS 311.864(6) defines

the role of a surgical assistant: “‘Surgical assisting’ means providing aid under

direct supervision in exposure, hemostasis, closures, and other intraoperative

technical functions that assist a physician in performing a safe operation with

optimal results for the patient.” “Direct supervision” is statutorily defined as

“supervision by a delegating physician who is physically present and who

personally directs delegated acts and remains immediately available to

personally respond to any emergency until the patient is released from the

25 operating room or care and has been transferred to the care and responsibility

of another physician[.]” KRS 311.864(4).

Slone did everything within her power to find the needle after it had been

lost — she notified Dr. Griffin and the rest of the surgical team and conducted

a visual search for the needle. Beyond that, the responsibility was on Dr.

Griffin to determine next steps. Slone had no authority to order or read an x-

ray; she could not order the patient’s wound to be reopened and manually

searched for the needle; and she had no authority over the patient’s treatment

plan after the surgery was completed. In short, while she had physical control

of the needle during the suturing process, after she lost physical custody of the

needle, the needle became under the constructive control of Dr. Griffin. See

Ashland Coca-Cola Bottling Co. v. Byrne, 258 S.W.2d 475, 476 (Ky. 1953) (“It

must be remembered that the doctrine of res ipsa loquitur is based on the

principle that in the ordinary course of things an injury would not have

occurred in the absence of negligence of the person having management or

control of the agency which caused the injury.” (emphasis added)).

While the Court of Appeals held that this case fell squarely into both res

ipsa loquitur exceptions to the requirement of expert testimony,

one involving a situation where “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” [and t]he second occurs when “medical experts may provide a sufficient foundation for res ipsa loquitur on more complex matters[,]”

we are not so convinced. Perkins, 828 S.W.2d at 654–55. For the first

exception, a layman would not know whether or when a needle becoming

26 unhoused from its holder during suturing would be the result of a lack of due

care by the suturer. A layman would likely understand, however, that ordering

and reading x-rays or re-opening a sutured incision to conduct a manual

search for a lost needle would be outside the authority of a surgical assistant.

Further, we acknowledge that in Perkins, this Court explained that the first

exception is “illustrated by cases where the surgeon leaves a foreign object in

the body or removes or injures an inappropriate part of the anatomy.” 828

S.W.2d at 655 (emphasis added). However, this is a distinct situation from the

one at hand in which a surgical assistant lost the needle, but a surgeon made

the decisions which caused the patient to retain the needle.

As for the second exception, the Court of Appeals concludes that the

exception applies but gives no reasoning to support its conclusion. However,

we hold that this exception does not fit the facts of this case. Arnsperger

explains that this exception applies when “expert testimony establishes the

‘type of injury was not an ordinary risk of the surgery, that the method by

which it occurred was within the exclusive control of the defendant, and that

the injury was not due to any voluntary action or contribution on the part of

the plaintiff.’” 686 S.W.3d at 138 (quoting Rose, 683 S.W.2d at 256–57). As we

have explained, Slone was not in control of the instrument during the

timeframe relevant to the alleged harm — its retention in Lloyd.

While it is true that many retained foreign object cases are the classic

textbook case of res ipsa loquitor, these cases seem to contemplate situations

where the individual with control over the instrument is either negligent in

27 losing the instrument or is the same individual with control over retrieving the

instrument once lost. Typically, this is the surgeon. See Nazar, 291 S.W.3d at

604 (“juries are free to analyze the reliability and veracity of the defendant's

expert witnesses and weigh it against the likelihood that the surgeon was

negligent in failing to remove an object from the plaintiff's body during

surgery” (emphasis added)); id. (“While the retained foreign object is evidence

of negligence, the jury is free to determine the ultimate issue of the surgeon's

liability from the evidence presented at trial.”); Arnsperger, 686 S.W.3d at 138

(“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 . . . where the surgeon leaves a foreign object in the body or removes or

injures an inappropriate part of the anatomy.”).

The dissent asserts that summary judgment was inappropriate and that

a jury should get to decide whether Slone breached her duty to Lloyd.

Summary judgment should be granted if the evidence shows 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. CR 56.03. Despite Lloyd’s stipulation that no

expert has criticized Slone’s actions or claimed that she breached her standard

of care, the dissent cites part of Dr. Dysart’s stricken testimony for the

proposition that “Slone could have removed stitches to look for the needle.”

However, Dr. Dysart also acknowledged that he is unaware of whether a

surgical assistant is authorized in Kentucky to reopen a wound, and that he

does not criticize Slone for not reopening the wound to search for the needle.

28 In fact, Dr. Dysart expressed that unless a surgical assistant is authorized to

do so, opening a wound to search for a lost needle would “be a problem.” The

dissent further offers that Slone “still could have been negligent in her efforts to

find the needle or in describing to the surgeon the thoroughness of her efforts

to locate the needle and confidence in concluding that it was not retained in

Lloyd.” Simply put, there is no evidence in the record to support these

hypotheticals, and therefore, summary judgment was wholly appropriate.

While Slone was the last to have physical control over the needle, and

Lloyd’s injuries would not have occurred but for the needle becoming dislodged

during the time that Slone maintained control, this fact cuts only towards

causation, not breach of a duty. Proving causation is merely a prerequisite for

the application of res ipsa loquitur — it does nothing to prove that a duty was

breached. Arnsperger, 686 S.W.3d at 139 (stating that res ipsa loquitur “allows

an inference of negligence in certain cases, not causation; established

causation is a prerequisite to the application of the doctrine.”).

Certainly, “res ipsa loquitur allows the jury to infer negligence solely from

the fact that a surgical item was left in the patient's body.” Savage, 390

S.W.3d at 113. But the inference afforded by res ipsa loquitur that someone

was negligent does not necessarily mean that Slone was negligent. Our

jurisprudence has long recognized that

where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in

29 the absence of explanation by the defendants, that the accident arose from want of care.

Lewis v. Wolk, 228 S.W.2d 432, 433 (Ky. 1950) (emphasis added) (quoting Scott

v. The London & St. Katherine Docks Co., 159 Eng. Rep. 665 (Ex. 1865)). The

evidence in this case demonstrates that Slone used proper care in performing

her duties. Nevertheless, a needle broke off, and Dr. Griffin made the choice to

cease efforts to locate the needle after misreading an x-ray. The evidence in

this case points to the negligence of Dr. Griffin, but it does not indicate

negligence by Slone. Any regret Lloyd may have about settling with Dr. Griffin

does not justify asserting negligence claims against those for whom the record

shows no fault. To allow an inference of negligence to be made where all facts

indicate the opposite would be an abuse of legal doctrine and contrary to the

original intent of res ipsa loquitur.

In sum, because the record contains no allegations that Slone was

negligent in causing the needle to become separated from its holder, and

because Slone did not maintain control over the decisions that caused the

needle to be retained in Lloyd’s knee, res ipsa loquitur does not apply to Lloyd’s

claims against Slone. Therefore, Lloyd was required to provide expert

testimony detailing the applicable medical standard of care, any breach of that

standard, and the resulting injury. Because the record is void of such expert

testimony, and the time for identifying experts and making the required

disclosures has passed, summary judgment in favor of Slone was appropriate.

Because the Court of Appeals reversed the trial court’s grant of summary

judgment to Slone, we reverse the Court of Appeals. 30 CONCLUSION

For the foregoing reasons, we reverse the Court of Appeals, which

reversed the trial court’s grants of summary judgment to the Radiologists and

Slone. We now reinstate the trial court’s grants of summary judgment.

Lambert, C.J.; Bisig, Conley, Keller, Nickell and Thompson, JJ., sitting.

Lambert, C.J.; Bisig, Conley, and Nickell, JJ., concur. Thompson, J., dissents

by separate opinion. Goodwine, J., not sitting.

THOMPSON, J., DISSENTING: Respectfully, I dissent. Under the doctrine

of res ipsa loquitur, there is a presumption of negligence that shifts the burden

of proof to all members of the surgical team to prove that they do not share

responsibility for the retained object. This presumption is sufficient to raise

material factual issues as to the negligence of the surgical team and,

accordingly, summary judgment was improperly granted to radiologist Dr.

Darren Cain, his employer Diagnostic X-Ray Physicians, and surgical assistant

Sheila Slone. The majority opinion errs in upholding their dismissal as

defendants. The issue as to who is ultimately responsible for Deborah Lloyd’s

injury and damages and their comparative negligence must be resolved by a

jury.

31 Lloyd entered the hospital 5 for what should have been a routine knee

replacement surgery. After the surgery, a needle over one-half of an inch in

length 6 remained in her body.

During surgery, while Slone was suturing Lloyd’s subcutaneous tissue,

Slone noticed that the needle was missing from its holder. She searched the

surgical opening for the needle, searched the operating room, and told surgeon

Dr. Sean Griffin about the missing needle. Dr. Griffin ordered one x-ray to look

for the needle. Radiologist Dr. Cain read that x-ray. Neither Dr. Griffin nor Dr.

Cain observed the needle on that x-ray. Dr. Griffin determined that Slone

should continue suturing Lloyd and conclude the surgery. He did not inform

Lloyd that a needle was possibly retained in her body. The needle was not

observed on subsequent x-rays that Dr. Christopher Dale Henley read later

that day when assessing the success of the knee replacement procedure.

Lloyd experienced problems in healing after the surgery. Dr. Griffin

ordered x-rays a month after the surgery. The needle was identified on those x-

rays and Lloyd had further surgery to remove the needle.

Lloyd filed a tort action against Dr. Griffin, Slone, and the hospital, and

later added the radiologist defendants. Dr. Griffin subsequently settled with

Lloyd, resolving his liability.

5 Norton Hospitals, Inc. d/b/a Norton Women’s and Children’s Hospital.

6 This suturing needle was one- and one-half centimeters in length; 1.5

centimeters is approximately .59 inches or 19/32 of an inch.

32 The entire surgical team had a sacred duty to protect Lloyd from injury

while she was unconscious and lacked all control over her body. The surgical

team included Dr. Griffin, Slone, and the circulating nurse employed by the

hospital. Dr. Cain was made part of the surgical team when he was tasked with

finding the needle left in her body. I reject the notion that liability devolves

solely to the surgeon as “captain of the ship” as courts have moved away from

this interpretation in recognition of the fact that surgery is a team effort with

various people having roles to play in its successful conclusion.

The majority opinion states that summary judgment was properly

granted to the radiologists because Lloyd does not have an expert who could

testify to the radiological standard of care.

As to Dr. Cain, Lloyd alleged he was a member of the surgical team. The

majority invades the province of the jury by making a finding of fact that he

was not in control of the surgery and therefore is not liable. When a radiologist

is requested to read an x-ray for the purpose of finding a misplaced needle

within a surgical wound before the patient is fully sewn up and taken out of

surgery, there is, at a minimum, a question of fact as to whether the radiologist

then becomes a member of the surgical team with constructive control over the

object he was asked to find. The fact that the conclusion of the surgery was

delayed for this radiologist to evaluate whether the needle was retained in Lloyd

may make him a vital member of the surgical team from that point forward.

When Dr. Cain failed to observe the needle, and that needle was later

located by x-ray a month later, it is obvious that he failed in his duty to protect

33 the patient. Under these circumstances, there is a presumption of negligence

under the doctrine of res ipsa loquitur that shifts the burden to the radiologist

to disprove his comparative fault.

A jury of ordinary people can understand that a surgical implement

should not be left in a patient’s body after surgery. It is within the jury’s

common knowledge that a radiologist, a doctor who is trained at interpreting x-

rays and in obtaining optimal views to observe the inside of a person’s body,

should be able to observe the presence of a metal foreign object retained in the

patient on an x-ray. Therefore, ordinary people can understand that if a

radiologist fails to spot a needle left in a patient’s body (either through

incorrectly reading an x-ray or through not obtaining the correct images,

through additional x-rays or otherwise), and that needle is later located by x-

ray images, there is substantial evidence that the radiologist failed to

appropriately perform his job.

Similarly, a jury of ordinary people can understand that where a surgical

assistant loses a needle in a patient and then fails to find it, resulting in the

needle remaining in the patient, there is substantial evidence that she failed to

perform her job appropriately.

Summary judgment is precluded where there are issues of material fact

that are not conclusively refuted by the record. I reject the notion that it is

conclusive at this stage in the proceedings that the surgeon alone had control

of the needle after it was lost and, thus, no one else’s conduct qualifies for the

res ipsa loquitur presumption of negligence. As to Slone, the majority opinion

34 turns the doctrine of res ipsa loquitur on its head by concluding that she is

entirely precluded from any liability because she refuted the presumption of

negligence. 7 The majority reaches this conclusion on the basis that no one

testified that Slone was negligent in losing the needle and the actual harm to

Lloyd resulted from the retention of the needle and not the losing of the needle,

a matter which was the sole responsibility of the surgeon. Respectfully, res ipsa

loquitur does not require any further proof of negligence to survive summary

judgment when a foreign object is left in a patient after surgery. The needle

could not be retained without first being lost, and even if Slone was not

negligent in losing the needle, she still could have been negligent in her efforts

to find the needle or in describing to the surgeon the thoroughness of her

efforts to locate the needle and confidence in concluding that it was not

retained in Lloyd.

Dr. Cain and Slone may well be able to produce evidence at trial to refute

the presumption that they were negligent, but at the summary judgment stage

Lloyd was not required to do more to establish their negligence under the

circumstances where some or all of the surgical team was responsible for the

loss of the needle.

7 The majority opinion relies on Lloyd’s expert stating that Lloyd was not

negligent in dropping the needle, while also affirming striking of testimony by that same expert which concluded that Slone could be negligent for failing to undo stitches to look for the needle and failing to follow hospital policy on retained objects.

35 I. THE BASICS OF RES IPSA LOQUITUR AS APPLIED TO RETAINED FOREIGN OBJECTS DURING SURGERY

“[R]es ipsa loquitur allows the jury to infer negligence solely from the fact

that a surgical item was left in the patient’s body.” Savage v. Three Rivers

Medical Center, 390 S.W.3d 104, 113 (Ky. 2012) (emphasis added). See, e.g.,

Laws v. Harter, 534 S.W.2d 449, 450–51 (Ky. 1975) (retained sponge),

overruled by Nazar v. Branham, 291 S.W.3d 599, 605 (Ky. 2009), as to this

constituting per se negligence; City of Somerset v. Hart, 549 S.W.2d 814, 817

(Ky. 1977) (retained scalpel blade).

Res ipsa loquitur can apply to an entire surgical team, not just the

surgeon. This presumption of negligence would then require individual

members of that team to establish that they were either not in constructive

control of the retained object or were not responsible for the object’s retention.

Usually, retained foreign object cases originate from medical operations in which multiple medical care professionals perform a variety of tasks . . . . [A]ny number of people including the surgeon, anesthesiologist, nursing staff, and other hospital staff may be at fault for having left an offending item in a plaintiff's body. The varied business relationships which exist at modern hospitals further complicate the issue. Because of these various types of relationships, no two surgical procedures are exactly alike, and the duties and responsibilities of the medical care professionals will likely depend on the specific facts of each case . . . . The res ipsa loquitur approach . . . permit[s] juries to infer negligence from the fact of the retained foreign object, while granting them the latitude to analyze other facts and evidence relevant to liability.

Nazar, 291 S.W.3d at 604 (paragraph break omitted). To be clear, as noted in

Nazar, any number of people on the surgical team may be responsible for the

tasks they perform and may be at fault for the retained object. That means that

36 multiple parties may jointly bear responsibility for the retention of the object in

the plaintiff.

Consistent with Nazar, the majority of our sister courts now reject the

view that the surgeon as the “captain of the ship” is the only one who is

responsible for mishaps during surgery. “[T]he theory of the surgeon as

‘captain of the ship’ has given way to the concept of the surgical team in which

everyone in the operating room has a duty to maximize the patient’s safety.”

Surgical fires, Hospital Negligence § 8:4. See Ben A. Rich, The Assault on

Privacy on Healthcare Decisionmaking, 68 Denv. U.L. Rev. 1, 55 n.23 (1991)

(noting “the ‘Captain of the Ship’ doctrine, which holds that the surgeon in the

operating room is ultimately responsible for the acts and omissions of the

entire surgical team, including the anesthesiologist, has all but disappeared in

recognition of the independent roles and responsibilities of each member of the

surgical team”); Nurse’s Failure to Give Physician Timely Notice of Patient’s

Condition, 25 Am. Jur. Proof of Facts 2d 411 (Originally published in 1981)

(recognizing that there is “a trend away from the ‘captain of the ship’ doctrine

and toward recognizing the independent professional nature of nursing, both

inside and outside of the operating room”).

The understanding that multiple people may be jointly at fault for

retained objects during surgery is well understood. “[T]he presence of multiple

defendants in a medical malpractice action does not, of itself, render the

doctrine of res ipsa loquitur inapplicable[,]” so long as “they were in joint control

of the agency causing the injury, it being immaterial that the plaintiff is not able

37 definitely to identify the instrumentality causing the injury.” Physicians and

Surgeons: Res Ipsa Loquitur, or Presumption or Inference of Negligence, in

Malpractice Cases, 82 A.L.R.2d 1262 (Originally published in 1962) (emphasis

added, footnotes omitted). “The res ipsa loquitur doctrine may apply against

two or more defendants if they had joint or shared responsibility or control, or

the right of joint control, of the instrumentality which caused the injury, and in

a proper case it is for the trier of the facts to say whether either or both had

control of the injury-causing instrumentality.” Effect of Joint Control of Injury-

Causing Instrumentality by Two or More Persons on Control Requirement, 57B

Am. Jur. 2d Negligence § 1145 (footnotes omitted). See Injuring-Instrumentality

Under Joint Control of Two or More Persons, Negligence Case: Res Ipsa Loquitur

§ 2:17 (“res ipsa loquitur doctrine may apply against two defendants if there is

joint control, and in a proper case it is for the trier of the facts to say whether

either or both had control of the injury-causing instrumentality”); Res Ipsa

Loquitur, Plaintiff's Proof Prima Facie Case § 13:29 (“res ipsa loquitur can be

used to fix responsibility against multiple defendants when they had joint

control of the instrumentality causing the injury”). To the extent that Green v.

Owensboro Med. Health Sys., Inc., 231 S.W.3d 781, 784 (Ky. App. 2007),

appears to hold otherwise, it should be overruled.

“Res ipsa loquitur applies in medical malpractice cases when ‘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’ or ‘when

medical experts may provide a sufficient foundation for res ipsa loquitur on

38 more complex matters.’” Saint Elizabeth Med. Ctr., Inc. v. Arnsperger, 686

S.W.3d 132, 138 (Ky. 2024) (quoting Perkins v. Hausladen, 828 S.W.2d 652,

655 (Ky. 1992) (internal citation omitted)). “[I]n determining whether the

evidence was sufficient to support an inference of negligence, both common

knowledge and the testimony of medical witnesses could be relied on,

separately and in combination.” Hausladen, 828 S.W.2d at 655.

I conclude that this is an ordinary res ipsa loquitur situation, which

applies to the whole surgical team. As to Dr. Cain and Slone, common

knowledge establishes that a piece of surgical equipment, here the needle,

should not be left within the surgical site and be retained in a patient following

surgery.

II. KEY EXPERT TESTIMONY REGARDING THE RADIOLOGISTS

Dr. Stanley Dysart is a retired board-certified orthopedic surgeon, with

over forty years of orthopedic surgery experience, who is a graduate of the

University of Georgia, with his orthopedic residency at Walter Reed and a

fellowship in adult reconstructive surgery through Harvard Medical School. He

was retained by Lloyd to evaluate this surgery. His deposition testimony was

that when he viewed the only x-ray taken during surgery, the surgical needle is

“obvious on the x-ray[,]” is “plain as day” and Dr. Griffin’s and Dr. Cain’s

failure to spot it was “a stunning miss” and “totally shocked” him. 8 Dr. Dysart

8 Dr. Dysart explained that he viewed this x-ray on the actual film, through a

png image (rather than a paper printout), which was not as good as the x-ray being viewed on the PACS-type system as would have been done at the hospital.

39 also opined the wrong x-ray was taken and “a second view would have shown

even better that there was a metallic foreign body[,]” so the failure to “get a

second film” was “hugely an error, an error of judgment, an error of

understanding” because getting “a second view” is “just standard.” Dr. Dysart

summarized:

So you have an image in front of you, which is not an AP knee x- ray. It’s a rotated image. So it’s not a standard AP film, first of all. It’s one image. That’s all—that’s all we’re look at here.

On that image, you can see the needle. What I’m suggesting, emphatically stating, is that you need more than one image to evaluate for a foreign body that’s lost.

You have got to have two images, or, better yet, bring a C-Arm in and rotate around the whole knee.

This is, like, insane. So that’s what I’m saying.

I mean, you have to understand the gravity of this. This is a—so if you lose a needle in a patient, this is a big deal.

You have got to solve the issue. And you can’t make assumptions that it’s laying on the floor or out in the sink or whatever, popped off, you know, out the window.

You’ve got to look for it. And you’ve got to understand what is appropriate. This image is completely inappropriate to try to find a needle, even though I can still see it. It’s obvious.

Dr. Dysart further opined as to the problems regarding the x-ray:

In this case, we have a solid implant, a metal implant which blocks all the views going through it. . . .

You’re looking for a little needle. You’ve got to get another view to correctly evaluate the entire surgical field. That’s as plain as it can be right there.

40 That’s what I’ve been trying to tell everybody. That’s what’s appropriate. That has to be done. Because the entire surgical field was not evaluated, and that’s inappropriate.

While Dr. Dysart stated that he did not know the radiology standard of

care, and was not qualified to testify regarding the American College of

Radiology standards, he was also emphatic in stating that Dr. Cain failing to

gain appropriate images was below the standard of care in this specific

situation:

Because even a radiologist—a radiologist should know that you can—that the entire surgical field is not imaged on that rotational AP film. It’s just not. He should know that.

Whether—whether I’m an expert in radiology or not, anybody knows that[.] .... The radiologist should know . . . . that.

Dr. Dysart also opined that the actions by the surgeon, his medical staff, the

radiologists, Dr. Cain and Dr. Henley, and the hospital “fell below the standard

of care causing and contributing to the present and continued harm to the

patient.”

III. KEY PROCEDURAL BACKGROUND

Regarding Slone, the trial court opined that she was the only defendant

who had control of the instrumentality (the suture needle), agreed that the

doctrine res ipsa loquitur could be invoked to create a rebuttable presumption

of negligence on her part, but further ruled that this presumption was rebutted

by the facts in the record because Lloyd stipulated that “[n]o witness has

testified as to a specific act or lack thereof on the part of Ms. Slone that was

41 contrary to the protocol in question” and the experts did not criticize her

conduct as breaching the standard of care.

This ruling relied on the trial court’s previous decision to grant the

hospital’s motion to exclude more than sixty pages of Dr. Dysart’s deposition

testimony, as there was not appropriate notice that he would make opinions as

to the hospital’s liability. Among this excised portion of Dr. Dysart’s testimony

was his opinion that the hospital’s policy on retained objects had not been

followed, Slone could have removed stitches to look for the needle, and Dr.

Cain violated a general standard of care requiring at least two x-rays to look for

a retained metal object, especially given that the metal implant could block a

view of the needle.

Based on its ruling that Slone was the only defendant who had control of

the instrumentality when it was lost, the trial court concluded that the doctrine

of res ipsa loquitur was inapplicable to the hospital and the radiologists, and

the lack of expert testimony as to the nursing standard of care and radiology

standard of care meant that the hospital and radiologists should also be

granted summary judgment.

The Court of Appeals correctly determined that, regarding the

radiologists, Dr. Dysart’s expert testimony was sufficient to take the matter

before the jury as it was admissible, and the fact that he was an expert on this

type of surgery rather than an expert in radiology went to the weight to be

given to his testimony. The Court of Appeals reached this conclusion even

though it also ruled that the trial court did not abuse its discretion in striking a

42 large portion of Dr. Dysart’s deposition testimony so that it could not be used

against any defendant, concluding that there was sufficient remaining evidence

from Dr. Dysart that the radiology defendants made a grave error. In reversing

the grant of summary judgment dismissing the radiology defendants, the Court

of Appeals did not examine this issue through the lens of res ipsa loquitur.

The Court of Appeals concluded that res ipsa loquitur was sufficient to

bring the matter of Slone’s liability before the jury because: the retention of a

surgical needle was not an ordinary risk of surgery; the needle was in Slone’s

exclusive control (as the trial court found); Lloyd did nothing to contribute to

this injury; there was evidence of record that the retained needle was the cause

of Lloyd requiring subsequent revision surgery; and even if a surgical needle

could become detached without negligence on the part of Slone, “that alone

does not rebut the reasonable inference that a needle should not remain in the

body of a patient.” The Court recognized that “[t]he fact that the needle was left

and that it caused injury to Lloyd is certainly something that the jury could

infer through common knowledge as something that should not have

happened” in the absence of “proper skill and care.”

The Court of Appeals concluded that summary judgment was properly

granted to the hospital because there was an absence of evidence that its

employee (the circulating nurse who charted what occurred during surgery, the

incorrect instrument count, the efforts to find the needle, and that Dr. Griffin

ordered, read, and cleared an x-ray) was in control of the suture needle that

remained in Lloyd’s knee. The Court rejected the notion that the hospital could

43 be liable when its policies relating to missing instrumentation were not

followed. The Court concluded Dr. Dysart’s testimony regarding the hospital’s

negligence was properly excluded, and a policy itself could not establish

standard of care.

The radiologists and Slone appealed. Lloyd did not cross-appeal the

Court of Appeals’ affirmance as to the hospital. The grant of summary

judgment to the hospital was resolved, is final, and is concluded.

The majority opinion now determines that summary judgment was

properly granted to the radiology defendants as the expert testimony of Dr.

Dysart was insufficient to establish a violation of the standard of care. In

making such a ruling, it implicitly confirms that striking a large portion of his

deposition testimony, which includes his opinion as to a general standard of

care regarding appropriate x-rays, was appropriate.

The majority opinion concludes that summary judgment was properly

granted to Slone because she had overcome the presumption of negligence in

the res ipsa loquitur standard as there was no evidence that she was negligent

in losing control of the needle and there was no evidence that after it was lost

that she had actual or constructive control over the needle. The majority

opinion bases this second finding on the statutory definitions associated with

surgical assistants in Kentucky and makes additional findings that “Slone did

everything within her power to find the needle after it had been lost—she

notified Dr. Griffin and the rest of the surgical team and conducted a visual

search for the needle” and “after she lost physical custody of the needle, the

44 needle became under the constructive control of Dr. Griffin.” This reliance on

Dr. Griffin’s role as precluding liability by others is an improper rejection of the

reality that each member of the surgical team has a legal duty to keep the

patient safe.

IV. LEGAL ANALYSIS

A. Summary Judgment Standard

Summary judgment is only appropriately 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.” Kentucky Rules of Civil Procedure (CR) 56.03.

“The record must be 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). “A single issue of material fact, the resolution of which could

reasonably change the outcome of the litigation is sufficient to overcome a

motion for summary judgment.” Clair v. Hillenmeyer, 232 S.W.3d 544, 550 (Ky.

App. 2007). “Undisputed facts will not support a summary judgment if contrary

inferences may be drawn therefrom.” Roberts v. Davis, 422 S.W.2d 890, 894

(Ky. 1967).

“Because summary judgment does not require findings of fact but only

an examination of the record to determine whether material issues of fact exist,

we generally review the grant of summary judgment without deference to either

45 the trial court’s assessment of the record or its legal conclusions.” Hammons v.

Hammons, 327 S.W.3d 444, 448 (Ky. 2010). We will uphold a trial court’s grant

of summary judgment only where it correctly found there were no disputed

issues as to any material facts, the moving party was entitled to judgment as a

matter of law, and the adverse party cannot prevail under any circumstance.

Dolt, Thompson, Shepherd & Conway, P.S.C. v. Commonwealth ex rel. Landrum,

607 S.W.3d 683, 686 (Ky. 2020).

B. Application of the Res Ipsa Loquitur Doctrine.

Normally in a medical malpractice action, expert testimony is required to

establish whether the conduct at issue violated the standard of care and

caused the damages claimed by the plaintiff. Ashland Hosp. Corp. v. Lewis, 581

S.W.3d 572, 578 (Ky. 2019); Blankenship v. Collier, 302 S.W.3d 665, 670 (Ky.

2010). The doctrine of res ipsa loquitur is an exception to this general rule in

circumstances in which lay persons can recognize or infer negligence based on

their common knowledge or experience. Ashland Hosp. Corp., 581 S.W.3d at

578. See Phillips v. Tangilag, 14 F.4th 524, 540 (6th Cir. 2021) (applying

Kentucky law) (explaining “[u]nder the ‘res ipsa loquitur’ exception, a patient

does not need expert testimony about the standard of care if an ordinary

person could conclude that a certain result would not happen if the doctor had

performed with the proper skill”).

Summary judgment cannot be properly granted to the movant if res ipsa

loquitur applies. Expert testimony is not required to survive summary judgment

and summary judgment is not appropriate. See Hausladen, 828 S.W.2d at 654.

46 It is well established that surgery is a team effort in which multiple

members of the surgical team may be responsible for the retention of an object

within the patient. Nazar, 291 S.W.3d at 604. In Morris v. Boerste, 641 S.W.3d

688, 695-97 (Ky. App. 2022), the surgeon and hospital that employed nurses

were both subject to punitive damages when sponges were retained in the

patient.

The whole team may be negligent in certain circumstances. In Se. Ky.

Baptist Hosp., Inc. v. Bruce, 539 S.W.2d 286, 287–88 (Ky. 1976), the surgeon,

anesthesiologist, and surgical technician all had a duty to check the patient’s

identity on her patient identification bracelet before operating but none of them

did; therefore, they were all liable when the wrong patient was operated upon.

Accordingly, res ipsa loquitur may be properly established when a whole

surgical team may be jointly in control of the foreign object which is retained in

a patient and caused the patient’s injury so long as this retention could not

have occurred “if those having control and management had not been

negligent.” Eaton v. Swinford, 424 S.W.2d 118, 119 (Ky. 1967).

C. Dr. Cain and his Employer Should Not Have Been Granted Summary Judgment.

1. Res Ipsa Loquitur Applies to the Radiologists, and Material Issues of Fact Should Be Resolved by the Jury.

Viewing the evidence in the light most favorable to Lloyd, as required

under the summary judgment standard, I conclude that Lloyd established the

existence of genuine, material issues of fact. The trial court erred by resolving

these factual issues against Lloyd and the majority opinion also erred in

47 making its own factual findings against Lloyd. Therefore, summary judgment

was inappropriately granted to Dr. Cain, his employer, and Slone.

As to Dr. Cain, the standard for res ipsa loquitur was satisfied by

establishing that the needle was within the exclusive joint control of the

surgical team which could include Dr. Cain, when entrusted to locate the

needle within Lloyd or conclusively determine that it was not within her body.

Dr. Cain failed in his duty to properly rule out the needle’s retention.

There are multiple jury questions on issues of fact regarding Dr. Cain’s

conduct and depending upon how they are resolved, he may overcome the

presumption of negligence. The jury needs to decide whether he became part of

the surgical team when he was called upon to read the x-ray to determine

whether the needle was retained in the surgical site and whether he was

constructively in possession of the needle under these circumstances. As to his

negligence in reading the x-ray, a radiologist should be able to identify a metal

object on x-rays. The needle was spotted later on x-rays taken a month after

surgery, showing that the needle always could have been located on x-rays had

proper x-rays been taken and properly interpreted during surgery. The majority

has erred in concluding that negligence cannot be established against Dr. Cain.

2. Alternatively, Res Ipsa Loquitur with the Assistance of Expert Testimony Applies to the Radiologists.

Lloyd’s negligence claim against the radiologists should also survive

summary judgment because there was relevant expert testimony that clarified

the matter further. Regarding more complex matters, res ipsa loquitur applies

when, “expert testimony [can] establish[] [that] the ‘type of injury was not an 48 ordinary risk of the surgery, that the method by which it occurred was within

the exclusive control of the defendant, and that the injury was not due to any

voluntary action or contribution on the part of the plaintiff.’” Arnsperger, 686

S.W.3d at 138 (quoting Hausladen, 828 S.W.2d at 655). Therefore, in

Hausladen, we stated that in a variety of medical malpractice cases, the res

ipsa loquitur inference of negligence was “sufficiently supplied by medical

testimony of record even though the plaintiff had no expert witness to opine that

the conduct fell below the standard of acceptable professional care.” 828 S.W.2d

at 655 (emphasis added).

Here, Dr. Dysart’s expert medical testimony establishes a foundation that

gives rise to an inference of negligence by Dr. Cain, even if Dr. Dysart cannot

establish the relevant radiological standard of care. Dr. Dysart provided this

foundation by explaining what could be viewed on the x-ray that was taken,

and what type of x-rays are needed in this situation.

Dr. Dysart established that Dr. Cain’s failure to locate the needle in

Lloyd’s body before the surgery was complete (resulting in its retention) was not

an ordinary risk of surgery where the needle could have been located through

x-ray images before the surgery was complete. Dr. Dysart also established that

the needle was not located by Dr. Cain due to an inaccurate reading of the x-

ray that was taken. Dr. Dysart clarified that a minimum of two x-rays were

required to find a metal needle against a metal joint which could mask the

needle and anyone reading x-rays for such a purpose should know this. It

would be a question for a jury to determine whether Dr. Cain should have

49 observed the needle on the x-ray, and what he was obligated and authorized to

do in the situation where the surgeon had not ordered appropriate x-rays of at

least two views of the knee.

3. Striking Portions of Dr. Dysart’s Testimony Against the Radiologists Was Improper.

CR 26.02(4) requires parties to disclose, upon request before trial, “facts

known and opinions held by experts,” including, “the subject matter on which

the expert is expected to testify, and . . . the substance of the facts and

opinions to which the expert is expected to testify and a summary of the

grounds for each opinion.” The purpose behind CR 26.02(4) “is to allow the

opposing party to adequately prepare for the substance of the expert’s trial

testimony.” Pauly v. Chang, 498 S.W.3d 394, 411–12 (Ky. App. 2015).

If a party fails to make an appropriate disclosure, trial courts are

permitted to exclude such inadequately disclosed expert testimony. However,

“the person requesting exclusion of testimony must show prejudice. Otherwise,

there is no valid basis to exclude or limit testimony.” Equitania Ins. Co. v. Slone

& Garrett, P.S.C., 191 S.W.3d 552, 556 (Ky. 2006).

We review a trial court’s decision to limit or exclude expert testimony for

abuse of discretion. Oliphant v. Ries, 568 S.W.3d 336, 342 (Ky. 2019). Such

discretion is abused when the “decision was arbitrary, unreasonable, unfair, or

unsupported by sound legal principles.” Baptist Healthcare Sys., Inc. v. Miller,

177 S.W.3d 676, 684 (Ky. 2005).

50 While I agree that it was within the discretion of the trial court to strike

portions of the testimony of Dr. Dysart which related to possible liability to the

hospital due to Lloyd’s failure to disclose that this expert would testify about

the hospital’s liability, I conclude that the trial court abused its discretion to

the extent that it struck portions of his testimony which did not specifically

relate to liability by the hospital, and only related to other defendants. Such a

decision was patently arbitrary, unreasonable, unfair, and unsupported where

the trial court excluded testimony relating to the radiology defendants’

conduct. The radiology defendants received an appropriate disclosure as to

opinions Dr. Dysart would make regarding their conduct and could adequately

prepare for such opinions. The radiology defendants did not ask for anything to

be stricken from Dr. Dysart’s deposition testimony and, additionally, had no

basis for requesting that anything be stricken from the portion of this

testimony.

Lloyd properly opposed this broad exclusion, explaining why the

exclusion of testimony was excessive and inappropriate as it related to the

radiologists and also properly asked for rehearing on this issue. The evidence

relating solely to the radiologists’ conduct could not prejudice the hospital and,

therefore, there was no reason to exclude it.

The opinions Dr. Dysart made regarding the radiologists in this portion

of his deposition testimony are properly admissible against Dr. Cain and his

employer. It would be appropriate to reverse and require the trial court to

determine, now that the hospital has been dismissed as a party, whether any

51 portion of Dr. Dysart’s testimony should still be stricken or excluded. However,

Dr. Dysart’s testimony provided ample grounds upon which a presumption of

negligence by Dr. Cain can be established under the doctrine of res ipsa

loquitur with or without such testimony.

I further conclude that Dr. Dysart’s wrongfully excluded testimony

established that there is a basic, underlying standard of care in any kind of

imaging to locate a lost metal object, that at least two views are necessary. Dr.

Dysart’s opinion regarding standard of care was nuanced. He explained he

could not testify as to what the Academy of Radiology required as far as

standard of care, but he could identify a minimum standard of care for looking

for a retained object; his opinion was that at least two views were needed. This,

also, should have been enough to conclude that summary judgment should not

have been granted in favor of Dr. Cain.

D. Slone Should Not Have Been Granted Summary Judgment.

Slone lost the needle. If Slone had not lost the needle, there would be no

injury. Res ipsa loquitur provides an inference of negligence against Slone.

While Slone’s responsibility as to the retained needle was different from those

of the surgeon and radiologist, she was still a member of the surgical team

responsible for keeping foreign objects from being retained in Lloyd’s body. The

record established that she had control over the needle when it became lost,

and the presumption is that she was negligent in its loss. Once res ipsa loquitur

applies, the questions of whether she was negligent and whether her action

contributed to Lloyd’s damages become jury questions.

52 In addition to informing the surgeon of the lost needle, Slone’s conduct in

looking for the needle in Lloyd’s surgical wound and in the surgical room was

clearly insufficient as she did not discover the needle. How thoroughly she

searched the room and how confidently she informed Dr. Griffin of her belief

that the needle was not in the surgical wound, is conduct for which she is

responsible. Therefore, it is appropriate for the presumption of res ipsa loquitur

to also apply to her other conduct as she could bear some comparative fault for

Lloyd’s injuries.

V. CONCLUSION

As noted in Nazar, 291 S.W.3d at 604, pursuant to the doctrine of res

ipsa loquitur, “juries should generally be permitted to determine a healthcare

professional’s liability in a retained foreign object case.” This is such a case,

and the jury should be permitted to evaluate whether Dr. Cain became a

member of the surgical team and, if so, whether he and his employer are liable

under comparative negligence for Lloyd’s injuries where Dr. Cain failed to find

the surgical needle. The jury should also be permitted to evaluate whether

Slone was also responsible for the damage caused by the retained needle.

Accordingly, I would affirm the Court of Appeals’ opinion that summary

judgment should have been denied to Dr. Cain, Diagnostic X-Ray Physicians,

and Slone.

53 COUNSEL FOR APPELLANTS/APPELLEES, DIAGNOSTIC X-RAY PHYSICIANS, PSC (DXP); DARREN CAIN, M.D.; AND CHRISTOPHER DALE HENLEY, M.D.:

Robert Lee Whitmer Dentons Bingham Greenebaum LLP

Craig Louis Johnson Steptoe & Johnson PLLC

Timothy Bland George, Jr. Reminger Co. LPA

COUNSEL FOR APPELLANT/APPELLEE, SHEILA SLONE KCSA:

Michael D. Risley Charles H. Stopher Edward H. Stopher Bethany A. Breetz Stites Harbison PLLC

Kristin Nichole Logan Mischel Kentucky State Police

COUNSEL FOR APPELLEE, DEBORAH LLOYD:

Kenneth H. Baker

Richard Paul Schiller Richard P. Schiller Attorney

COUNSEL FOR APPELLEE, NORTON’S HOSPITALS, INC. D/B/A NORTON’S WOMEN’S AND CHILDREN’S HOSPITAL:

Karen Lee Keith Virginia Leigh Schell Stoll Keenon Ogden PLLC

COUNSEL FOR AMICUS, AMERICAN MEDICAL ASSOCIATION AND KENTUCKY MEDICAL ASSOCIATION:

Philip S. Goldberg Shook, Hardy & Bacon LLP

Carolyn Purcell Michener Michener Mullins & Arrington PLLC 54