RENDERED: MARCH 13, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0601-MR
ELLEN SULLIVAN APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT v. HONORABLE TERESA WHITAKER, JUDGE ACTION NO. 23-CI-00486
BROADENING HORIZONS, INC.; AMANDA TROXTELL, IN HER CAPACITY AS COORDINATOR FOR BROADENING HORIZONS, INC.; AND KAREN WHITAKER, IN HER CAPACITY AS PRESIDENT AND DIRECTOR OF BROADENING HORIZONS, INC. APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, ECKERLE, AND MOYNAHAN, JUDGES.
ECKERLE, JUDGE: Appellant, Ellen Sullivan (“Sullivan”), seeks relief from an
order of the Pulaski Circuit Court granting summary judgment to Appellees,
Broadening Horizons, Inc. (“Broadening Horizons”), Executive Director Karen Whitaker (“Whitaker”), and Coordinator Amanda Troxtell (“Troxtell”). After
careful review, we affirm.
I. Factual and Procedural History
In 2017, Sullivan contracted with Broadening Horizons as a family
home provider under the Medicaid Supports for Community Living (“SCL”)
waiver program. It is undisputed that the contract identifies the relationship as one
of an independent contractor agreeing to provide care within the guidelines and
regulations governing that program. By early 2022, Sullivan had three participants
in her home through individual placement agreements with Broadening Horizons.
The underlying claims in this case arise out of a medication error that
occurred in May of 2022. The parties agree that Sullivan’s job included filling,
picking up, and administering medications to the participants in accordance with
their physicians’ orders and Broadening Horizons’ internal policies. They also
agree that Sullivan had received yearly retraining on these duties, which included
required steps to verify, administer, and document the medication administered
accurately and in compliance with state and federal regulations. Broadening
Horizons retained control over financial accounts for participants and paid
pharmacy bills on their behalf.
Appellees and Sullivan offer competing explanations for the
underlying cause of the medication error, but there are a number of facts on which
-2- the parties do agree. First, all concede that Sullivan switched her participants’
prescriptions to the Sav-Rite Pharmacy in Somerset in March of 2022. This act fell
within her discretion to do as a family home provider. Second, they also
acknowledge that the balances for the prescriptions filled on the accounts of
Sullivan’s three participants were not paid in March, April, or the first three weeks
in May of 2022.1 Third, participant B.P. had a prescription refill for cetirizine
(“Zyrtec”) due on May 13, 2022, one day before he received his last remaining
dose from the previous prescription filled on April 14, 2022. This prescription was
not acquired on May 13, 2022.2 Fourth, the parties concede that participant B.P.
did not receive any doses of Zyrtec for eight days until the medication was
retrieved and administered on May 23, 2022.
Significant disagreement exists regarding the communication between
Sullivan and Broadening Horizons during those eight days. In her deposition
testimony, Sullivan asserts that she spoke daily with Troxtell, who managed the
family home providers for Broadening Horizons, and that Sullivan had conveyed
that the lack of payment had resulted in a hold from the pharmacy on her
participants’ medications. However, Troxtell insisted in her deposition that she had
1 The cause of this failure to pay the required bills is the subject of significant deposition testimony and speculation by all parties, but it is ultimately not material to the claims at issue in this case. 2 The cause of the failure to obtain the medication that day is also hotly contested by the parties, with each alleging wrongdoing by the other. -3- not understood that there was an issue in obtaining the medication from the
pharmacy, and that she did not know that the participant had not been receiving his
medication. She testified that she believed the problem rested with the
prescription, and she counseled following up with the prescribing provider.
Regardless of these disputed facts, the parties agree that Sullivan
eventually picked up all prescriptions for her participants on May 23, 2022, and
she informed Executive Director Whitaker of the issue on the following day after
encountering her in the parking lot at Broadening Horizons. The sequence of
events that occurred after this report is the subject of the underlying tort claims in
this case.
First, Appellees confirmed with the pharmacy that there were
outstanding balances that had not been paid. However, the pharmacy stated that no
prescriptions were considered to be on hold at that time and noted that Sullivan had
picked up all the medications prior to payment of the outstanding bills.3 Invoices
from the pharmacy confirm that the bills were not due until May 27, 2022. The
letter from Sav-Rite Pharmacy confirms that its procedure would be to refuse to fill
3 At the request of Broadening Horizons, Kimberly Windham, the owner and manager of Sav- Rite Pharmacy in South Somerset, prepared a letter dated May 31, 2022, detailing the pharmacy’s account of the medication issue and the pharmacy technician’s recollections of interactions with Sullivan and the staff of Broadening Horizons. See Appellant’s Brief Tab 3. -4- any further medications in June if the bill had not been paid by that date; but the
May prescriptions could still be picked up prior to payment.
After learning of this information, Broadening Horizons opened an
investigation into the reported medication error. Kristopher Godby (“Godby”), the
Program Director of Broadening Horizons, made necessary notifications to the
participant’s guardian and case manager before submitting required reports to
Adult Protective Services (“APS”) and the Department of Community Based
Services (“DCBS”) as required for any instances of suspected abuse, neglect, or
exploitation of a participant. In deposition testimony offered on behalf of
Broadening Horizons, Godby explained that one of the required reports classified
the medication error as a “critical” incident under the regulations.4 With the
assignment of a critical incident, Godby testified that he and Whitaker determined
that all of Sullivan’s participants would need to be removed pursuant to
Broadening Horizons’ policies to ensure the safety of the participants.5
4 Exhibit C of the Motion for Summary Judgment includes copies of the reports filed with APS and DCBS for the participants in Sullivan’s home. This includes a “Risk Mitigation and Incident Report” that details the steps taken to protect the other participants who had no known medication errors at that time. 5 Exhibit D of the Motion for Summary Judgment documents Broadening Horizons’ policies and procedures in the event of suspected abuse, neglect, or exploitation. These include reporting mandates, investigation requirements, and safety of participants during the pendency of the investigation process. -5- Although APS declined to pursue the medication error further,
Broadening Horizons conducted its own internal investigation as part of the
mitigation efforts reported to DCBS. Because of the number of missed doses
involved in the medication error, Broadening Horizons determined that Sullivan
had been negligent in her care of B.P., and that she would no longer be approved to
care for participants with complex medication needs. As a result, none of the three
participants would be allowed to return to her home through Broadening Horizons.
When Sullivan did not receive any communications about the
investigation within the 45-day window that Broadening Horizons had established
for sending results, she signed a contract with another SCL provider. She never
returned to work for Broadening Horizons, and her contract was never renewed.
One of the three participants did ultimately return to her care through the new SCL
provider. The guardians of the other two participants declined to follow her or
return their participants to her care.
Sullivan filed suit alleging a number of tort claims against Broadening
Horizons, as well as Whitaker and Troxtell in their capacities as Executive Director
and Coordinator. After completing discovery and depositions of all parties, the
Appellees moved for summary judgment on all claims. The Circuit Court held oral
arguments on the motion, which it eventually granted. Sullivan made a motion to
-6- alter, amend, or vacate the order, which the Circuit Court denied. This appeal
followed.
II. Standard of Review
Because this is an appeal from an order granting summary judgment,
we review the Circuit Court’s conclusions de novo and without deference.
Hammons v. Hammons, 327 S.W.3d 444, 448 (Ky. 2010) (citations omitted). “On
appellate review of the trial court’s grant of summary judgment, we must
determine whether the record, examined in its entirety, shows there is ‘no genuine
issue as to any material fact and the moving party is entitled to judgment as a
matter of law.’” Philadelphia Indem. Ins. Co, Inc. v. Tryon, 502 S.W.3d 585, 587
(Ky. 2016) (citing Kentucky Rules of Civil Procedure 56.03).
“Determination that a fact is material or immaterial rests on the
substantive law’s identification of which facts are critical and which facts are
irrelevant.” Kearney v. Univ. of Ky., 638 S.W.3d 385, 397 (Ky. 2022) (citations
omitted). “The inquiry should be whether, from the evidence of record, facts exist
which would make it possible for the non-moving party to prevail. In the analysis,
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). Summary
judgment is improper unless it would be “impossible for the respondent to produce
-7- 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).
III. Analysis
Sullivan asserts that material questions of fact exist that make
summary judgment inappropriate. Accordingly, we must consider each of
Sullivan’s claims individually to determine whether summary judgment was proper
after reviewing the substantive law at issue for each claim.
1. Claim for Retaliation Under Kentucky Revised Statutes (“KRS”) 216B.165
After reviewing the evidence in the light most favorable to Sullivan as
the non-moving party, the Circuit Court held that Sullivan could not state a claim
for retaliation on two grounds. Primarily, that Court held that Sullivan failed to
prove that Broadening Horizons was a healthcare facility subject to the statute. As
the basis of her argument, Sullivan contends that the descriptor of a “family care
home” offered in 907 Kentucky Administrative Regulations (“KAR”) 20:041
covers substantially and more appropriately the same types of services provided by
those who contract with Broadening Horizons. Sullivan also argues that the fact
that the SCL waiver program is governed by the reporting requirements in KRS
Chapter 209 does not bar it from being governed by KRS Chapter 216B as well.
However, this assertion obscures the fact that KRS 216B.015(13) explicitly applies
to a “health care facility or service licensed under this chapter” (emphasis added).
-8- Principles of statutory construction require us “to give effect to the
intent of the General Assembly.” Jefferson Co. Bd. of Educ. v. Fell, 391 S.W.3d
713, 718 (Ky. 2012) (citations omitted).
We derive that intent, if at all possible, from the language the General Assembly chose, either as defined by the General Assembly or as generally understood in the context of the matter under consideration . . . . We presume that the General Assembly intended for the statute to be construed as a whole, for all of its parts to have meaning, and for it to harmonize with related statutes.
Id. at 718-19.
Reviewing KRS 216B.165 as a whole, the plain language of the
statute limits its application to health care facilities and services that are licensed
under that chapter. Broadening Horizons is not so licensed. Instead, the legislature
established the SCL waiver program with KRS 205.6317 and instructed the
Cabinet of Health and Family Services to promulgate regulations in accordance
with the federal requirements of the program. Those regulations include specific
definitions for a SCL provider and a family home provider, and the requirements to
certify for each are different from the legislature’s definition of a “family care
home” in KRS Chapter 216B. See 907 KAR 1:145 and 12:010. They do not
-9- require licensure for either under KRS Chapter 216B, and Sullivan has offered no
proof of licensure other than the asserted plain reading of the statute.6
In addition to the failure to prove that Broadening Horizons and
Sullivan were covered by KRS 216B.165, Sullivan also failed to seek relief under
KRS 446.070 to recover damages for a violation of a state statute where no penalty
or forfeiture is imposed by the statute. Because the pleading failed to seek
appropriate relief, the Circuit Court correctly noted that Sullivan would be unable
to recover even in the event that the statute could have been applied. For both of
these reasons, summary judgment was proper as a matter of law on Sullivan’s
retaliation claim.
2. Claim for Wrongful Discharge
Sullivan alleges that Appellees should be liable for wrongful discharge
on the grounds that her contract was terminated as retaliation for reporting the
medication error that she alleges was caused by Appellees’ failure to pay the
outstanding pharmacy bills. In reviewing this claim, the Circuit Court properly
reviewed the elements for wrongful discharge under Kentucky law:
“An employee has a cause of action for wrongful discharge when the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law . . . . The public policy must be
6 Sullivan’s deposition testimony actually acknowledges this distinction. She testified that she had previously been licensed as a family care home by the State but that she had “sent back” the license many years prior to certifying as a family home provider. -10- evidenced by a constitutional or statutory provision. An employee cannot be fired for refusing to violate the constitution or a statute. Employers will be held liable for those terminations that effectuate an unlawful end.” Firestone Textile Co. Div., Firestone Tire & Rubber Co. v. Meadows, 666 S.W.2d 730, 731 (Ky. 1983).
(Appellant’s Brief Tab 1 at 6.)
Appellees assert that Sullivan’s contract was never actually terminated
and counter her assertions that the removal of her participants acted as a
constructive termination. However, for the purpose of summary judgment, the
Circuit Court properly reviewed the claim in the light most favorable to Sullivan
and proceeded to review the evidence under the assumption that Sullivan had
actually been terminated.
At every level of the proceedings, Sullivan has asserted that the
appropriate test to determine her status as an employee would be to extend the
“economic realities” test adopted by the Kentucky Supreme Court for disputes
under the Kentucky wage and hour laws and for workers’ compensation
proceedings. Mouanda v. Jani-King Int’l, 653 S.W.3d 65 (Ky. 2022) (adopting the
economic realities test for wage and hour disputes); Oufafa v. Taxi, L.L.C., 664
S.W.3d 592 (Ky. 2023) (extending its use to workers’ compensation proceedings).
In her Appellant and Reply Briefs, Sullivan again urges that her status as an
employee is a question of fact that should be submitted to a jury under the
economic realities test. -11- After reviewing the elements articulated in Firestone, the Circuit
Court concluded that Sullivan was not an employee based on KRS 67.750(4),
which provides that a person classified as an independent contractor under the
Internal Revenue Code shall not be considered an employee. Based on the
available discovery, primarily the contract between Broadening Horizons and
Sullivan designating the intent for the parties to have the relationship that an
independent contractor would, we agree with the Circuit Court that Sullivan was an
independent contractor. Ultimately, though, we do not need to reach the question
of Sullivan’s status as an employee or independent contractor, because she has also
failed to assert proof of the second requirement set forth in Firestone that the
discharge be contrary to a fundamental and well-defined public policy.
In Firestone, the Kentucky Supreme Court adopted the Wisconsin
Supreme Court’s holding that “[t]he determination of whether the public policy
asserted is a well-defined and fundamental one is an issue of law and is to be made
by the . . . court.” Firestone, 666 S.W.2d at 733. Our Supreme Court expanded on
this holding in Hill v. Kentucky Lottery Corp., 327 S.W.3d 412 (Ky. 2010), noting
that Firestone established the following requirements for a wrongful discharge
claim under Kentucky law: “1) The discharge must be contrary to a fundamental
and well-defined public policy as evidenced by existing law. 2) That policy must
be evidenced by a constitutional or statutory provision. 3) The decision of whether
-12- the public policy asserted meets these criteria is a question of law for the court to
decide, not a question of fact.” Id. at 420-21 (citing Firestone, 666 S.W.2d at 731).
The Court in Hill explained that it had held previously that the only
situations in which discharging an at-will employee would be so contrary to public
policy as to be actionable despite the absence of “explicit legislative statements
prohibiting the discharge” would be: “1) Where the alleged reason for the
discharge of the employee was the employee’s failure or refusal to violate a law in
the course of employment; or 2) When the reason for the discharge was the
employee’s exercise of a right conferred by well-established legislative
enactment.” Id. at 421-22 (citing Grzyb v. Evans, 700 S.W.2d 399, 402 (Ky.
1985)). Subsequent cases offer examples of fundamental and well-defined policy
such as: authorizing a labor union to represent an employee under the collective
bargaining statute (Pari-Mutuel Clerks’ Union v. Ky. Jockey Club, 551 S.W.2d 801
(Ky. 1977)); filing a workers’ compensation claim (Firestone, 666 S.W.2d 730);
and refusing to offer false testimony on behalf of an employer during a legal
proceeding (Hill, 327 S.W.3d 412; Northeast Health Mgmt., Inc. v. Cotton, 56
S.W.3d 440 (Ky. App. 2001)).
Sullivan alleges that the public policy element of her wrongful
discharge claim is her protected report of the medication error under KRS
216B.165. However, as discussed above, this statute does not apply to Broadening
-13- Horizons or the SCL waiver program. Thus, it cannot satisfy the requirements for
a specific legislative statement. Sullivan does not identify any other statute or facts
that suggest that one of the exceptions identified in Hill would apply here. There is
no evidence that Broadening Horizons instructed Sullivan to break the law in any
way. Rather, the evidence showed that it based its own actions following the
confirmed medication error on attempts to comply with Kentucky and federal laws
governing the SCL waiver program.
Sullivan’s argument that her report of the missed medication should
be considered public policy under the more generalized whistleblower statutes is
similarly unpersuasive. Although Sullivan reported the missed payments to
Whitaker as Executive Director, she also reported her own errors in medication
administration. These mistakes resulted in one participant’s failing to receive
required prescription medication for more than one week. Pursuant to the
regulations and Broadening Horizons’ policies, failing to administer prescribed
medication for multiple days is itself an error and does not require showing that the
participant suffered any severe negative effects from the error.
Based on the regulations and relevant policies governing Broadening
Horizons, Appellees removed the participants from Sullivan’s home in response to
her failure to follow up with the appropriate staff members when she believed that
she could not pick up the prescribed medication. It is the very act of the removal
-14- of the participants that Sullivan asserts constituted her constructive termination.
However, the determination to remove them from the home pursuant to state and
federal guidelines cannot realistically be considered counter to well-established
public policy. Thus, this claim must also fail as a matter of law.
3. Claim for Tortious Interference with a Business Relationship
In reviewing Sullivan’s claim for tortious interference with a business
relationship, the Circuit Court identified the six-part test required to establish the
claim under Kentucky law. The Circuit Court described the applicable law as
follows:
First, “The existence of a valid business relationship or expectancy.” Second, “That the defendant was aware of this relationship or expectancy.” Third, “That the defendant intentionally interfered” with the business relationship. Fourth, “That the motive behind the interference was improper.” Fifth, the defendant’s conduct was in proximity with the interference, similar to an element of causation. Finally, the court will examine whether special damages are in order. PBI Bank, Inc. v. Signature Point Condos, LLC., 535 S.W.3d 700, 715 (Ky Ct. App. 2016); CMI, Inc. v. Intoximeters, Inc., 918 F. Supp. 1068 (W.D. Ky. 1995). The court has been clear that to prevail on this claim, a plaintiff would have to show the defendant acted with malice or “significantly wrongful conduct.” In other words, there must be some kind of intentional interference without justification on the part of the defendant for this claim to be successful. PBI Bank, Inc. at 715.
(Appellant’s Brief Tab 1 at 6-7.)
-15- While listing the six elements, the Circuit Court nonetheless did not
clearly articulate the ways in which Sullivan failed to meet each part of the test.
Instead, the Circuit Court offered a series of facts that it concluded failed to meet
the requirements. Regardless, the Circuit Court reached the correct result, as we
will detail below.
Sullivan argues that Appellees Troxtell and Whitaker’s conduct
interfered with her business relationships with Broadening Horizons, the individual
participants placed in her home, and potential future employers who might be
hesitant to hire her due to the reports filed with DCBS. Specifically, she argues
that the first two prongs of the six-part test are met by the existence of her
independent contractor agreement with Broadening Horizons. She claims that
Whitaker and Troxtell interfered with that agreement sufficiently to meet parts
three through five of the test. We are unpersuaded.
Troxtell and Whitaker cannot be considered to have interfered with
Sullivan’s relationship with Broadening Horizons, because they committed all
alleged conduct while acting in their capacities as its agents. Under Kentucky law,
“[a]gents of a party to a contract who act within the scope of their employment
cannot interfere with that party’s contract.” Harstad v. Whiteman, 338 S.W.3d 804,
814 (Ky. App. 2011). Thus, as a matter of law, Sullivan cannot succeed on her
claim of tortious interference with a business relationship.
-16- Sullivan also alleges in her Reply Brief that the interference with her
business activities was the initial removal of the three participants from her home,
which she argues was intended to terminate Sullivan and protect Broadening
Horizons from adverse action from the state. As she argues, “Whether their
interference was ‘improper’ and motivated by a desire to deflect responsibility or
preserve reputation rather than participant safety is a factual question[,] and
Appellant was denied the opportunity to present her evidence of such and her
theory before a jury.” (Reply Brief at 5-6.)
Sullivan raises the possibility of improper motives of Troxtell and
Whitaker in an attempt to establish element four of the PBI Bank test. As stated
above, this effort fails because she cannot meet the other elements as a matter of
law. Regardless, the alleged interference involves mandated reporting, required
investigation, and necessary acts to protect the welfare of the SCL participants in
Sullivan’s home. Whether Appellees might also have harbored some other and
even improper motive is irrelevant because all of the acts of alleged interference
were required reports or agency policy in response to an admitted critical
medication error. Where the Appellees were bound by regulations to report and
address medication errors, it follows that they cannot be found liable for an alleged
tort that results from legally-mandated compliance. Any contrary ruling would
disincentivize reporting and render it perilous. Therein lies the reasoning of the
-17- PBI Bank Court’s holding that some intentional interference is not tortious where it
is made with “justification.” PBI Bank, 535 S.W.3d at 715. It necessarily follows
that Appellees are justified in compliance with mandatory reporting and
investigation.
Finally, Sullivan asserts that Troxtell and Whitaker harmed her future
employment prospects by reporting her to DCBS for the medication error that she
attributes to their own failure to pay the pharmacy bill in a timely manner.
However, again Sullivan has failed to offer evidence that the Appellees’ conduct
actually interfered with her ability to find future employment or resume placement
with the removed participants through another SCL provider. As the Circuit Court
observed, Sullivan testified that she had established contracts with multiple other
SCL providers as a family home provider after leaving Broadening Horizons, and
one of the guardians did approve the participant’s return to her care through
another agency. Accordingly, this assertion of tortious interference also fails.
None of these alleged interferences satisfies all parts of the PBI Bank test, even
with the facts construed in the light most favorable to Sullivan as the party
opposing summary judgment.
4. Claim for Intentional Infliction of Emotional Distress
After reviewing the record, the Circuit Court concluded that Sullivan
had failed to meet the required elements for a claim of intentional infliction of
-18- emotional distress. The Court applied the four elements set forth in Craft v. Rice,
671 S.W.2d 247 (Ky. 1984), to establish this claim under Kentucky Law:
First, the wrongdoer’s conduct must be intentional or reckless. The court states, “This element is satisfied where the wrongdoer had the specific purpose of inflicting emotional distress,” or if the wrongdoer knew it was likely that emotional distress would result from his actions. Second, “the conduct must be so outrageous and intolerable that it offends the generally accepted standards of decency . . . .” The court specifically attempts to limit the use of [intentional infliction of emotional distress] claims here. Third, there must be a “causal connection between the wrongdoer’s conduct and the emotional distress.” Lastly, the emotional distress must be severe. A plaintiff must demonstrate severe mental stress or emotional injury acknowledged by medical or scientific experts. Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012).
In its analysis, the Circuit Court relied primarily on findings that Sullivan failed to
provide any proof that Broadening Horizons’ actions were committed for the
purpose of causing emotional distress; and that she had not actually experienced
severe emotional distress. We agree.
As a SCL provider, Broadening Horizons established guidelines to
respond to medication errors as required by state and federal regulations. See 907
KAR 12:010. The report of the error, removal of SCL participants from Sullivan’s
home during an investigation, and ultimate decision not to allow those participants
with complex medication needs back into her home are each in line with all of
those policies. Sullivan has offered no evidence to suggest that Broadening -19- Horizons had any discretion to refrain from reporting or taking necessary steps
once the report had been made.
Turning to Whitaker and Troxtell, even assuming Sullivan’s
contention that they intentionally used Sullivan’s failure to administer medication
to deflect from the lack of payment on the pharmacy account, Sullivan fails to
satisfy the other elements of her claim. The alleged “outrageous and intolerable”
conduct in this case is the notification of the medication error and removal of the
SCL participants during the investigation, notifications that are compelled in their
ordinary course. Craft, 671 S.W.2d at 250-51.
In her deposition testimony, Sullivan also alleges wrongdoing in the
failure of Broadening Horizons to communicate the outcome of the report to Adult
Protective Services and DCBS or her internal investigation within the 45-day
window given to her at the time of removal. Ultimately, though, and again, her
allegations describe behavior that is not only appropriate but required by state
regulations and Broadening Horizons’ own policies on abuse, neglect, and
exploitation.
Finally, the Circuit Court correctly noted that Sullivan failed to
present evidence of severe emotional distress. Although Sullivan asserts that this
ultimate issue should have been one for expert testimony at trial, she has failed to
articulate any evidence of alleged harm that could form the basis for a finding of
-20- severe emotional distress. (Appellee Brief at 15 (citing Sullivan Deposition at
201)). Other than heart problems, which she testified in her deposition had been
present prior to the incidents at issue in this case, she noted no objective symptoms
or treatment that would establish this claim. Expert testimony cannot correct this
deficiency.
5. Concert of Action Between Troxtell and Whitaker
As the final claim considered by the Circuit Court, Sullivan alleged a
concert of action between Troxtell and Whitaker in their roles as Coordinator and
Executive Director when they proceeded to report Sullivan’s medication error
without acknowledging Broadening Horizons’ failure to pay the outstanding
pharmacy bills.
The Circuit Court cited Farmer v. Newport, 748 S.W.2d 162 (Ky. App.
1988), which lists out the elements for a claim of Concert of Action borrowed from
the RESTATEMENT (SECOND) OF TORTS § 876 (1979):
For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct separately considered[] constitutes a breach of duty to the third person.
-21- As the Circuit Court explained, “To prevail on this claim, one would need to act
with another, know that the other’s conduct was causing harm and give substantial
assistance to him, or cause harm himself while giving assistance to another.”
(Appellant Brief Tab 1 at 8.) The Circuit Court held that Sullivan had not shown
any evidence that Troxtell and Whitaker worked in concert with one another to
cause her harm when they reported the medication error and followed the required
procedures for notifying the proper parties and conducting an internal
investigation. On review, Sullivan has failed to establish that the Appellees
committed any tortious act or breached a duty owed to her.
As Sullivan established, Appellees acted in response to the confirmed
failure to administer a medication to a program participant for eight days. While
there is strenuous disagreement about whose conduct caused the delay in obtaining
the medication from the pharmacy, it is undisputed that the medication was not
administered for eight days. Based on Godby’s deposition testimony, the DCBS
portal classified the incident as critical due to the cumulative effect of multiple
missed medication doses. All of the depositions from Broadening Horizons’
employees confirm that it is agency policy to treat all medication errors the same,
though they acknowledged that it is unlikely that the invoice for the medication
would have been overlooked if it had been for a controlled substance, such as a
prescribed narcotic or mental health medication.
-22- Assuming, arguendo, that Sullivan did report the pharmacy dispute to
Troxtell, and that she was informed that the medication could not be picked up
without payment, it is still undisputed that she did not follow up with any other
member of Broadening Horizons staff until May 23 or 24 despite knowing her
participant had missed multiple days of a prescribed medication. The lapsed
medication would still require a report to be filed, and Sullivan would remain the
responsible party under her contract with Broadening Horizons that places her in
charge of providing care in accordance with the SCL program regulations.
Accordingly, these facts do not support Sullivan’s quest to overturn the grant of
summary judgment on this claim as a matter of law.
IV. Conclusion
Based on the foregoing, we affirm the Circuit Court’s grant of
summary judgment in favor of Broadening Horizons, Whitaker, and Troxtell.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES
Sarah E. Cooley Katherine J. Hornback Masten Childers, III Lexington, Kentucky Justin S. Peterson Kellie M. Collins Lexington, Kentucky
-23-