Estate of Clarence H. Thomas, Jr v. Kentucky One Health Partners, LLC

• Court: Court of Appeals of Kentucky
• Decided: December 16, 2021
• Docket: 2020 CA 001532
• Status: Unknown

Opinion

RENDERED: DECEMBER 17, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-1532-MR

ESTATE OF CLARENCE H. THOMAS, JR. AND ADRIENNE MOORE, AS ADMINISTRATRIX OF THE ESTATE OF CLARENCE H. THOMAS, JR. APPELLANTS

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE LUCY ANNE VANMETER, JUDGE ACTION NO. 15-CI-04673

KENTUCKY ONE HEALTH PARTNERS, LLC; JESSE SABIITI,1 M.D.; KENTUCKY ONE HEALTH, INC.; AND SAINT JOSEPH HEALTHCARE, INC., DBA SAINT JOSEPH HEALTH SYSTEM, INC. AKA SAINT JOSEPH HOSPITAL APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: DIXON, McNEILL, AND K. THOMPSON, JUDGES.

1 The notice of appeal contained a misspelling of Appellee’s surname. We have opted to utilize the correct spelling. DIXON, JUDGE: Appellants (the Estate) appeal various orders of the Fayette

Circuit Court granting Appellees’ motions for summary judgment, denying the

applicability of res ipsa loquitur, excluding the Estate’s expert’s opinion, and

rulings on motions in limine. After a careful review of the briefs, record, and law,

we affirm.

FACTS AND PROCEDURAL BACKGROUND

Clarence Thomas, Jr., presented to the emergency room at Saint

Joseph Hospital on January 6, 2015. He was evaluated by Dr. Sabiiti in the early

hours of January 7, 2015, and was ultimately admitted for ongoing care and

observation. During Thomas’s admission, he developed a pressure wound near his

coccyx; no infection was noted. Thomas was then discharged on January 23, 2015.

At this time, Thomas’s care was transferred to Cardinal Hill Hospital

where he was to undergo two to three weeks of physical therapy. However,

Thomas left against medical advice on January 26, 2015, only three days into his

treatment regimen. Thereafter, Thomas received services from Cardinal Hill

Home Care from January 27, 2015, to March 4, 2015. Reports from his skilled

nurses indicate that Thomas was noncompliant with wound care during this time.

Thomas was re-admitted to Saint Joseph Hospital on March 4, 2015, for knee

surgery, but the procedure was delayed due to an infection in both the coccyx

wound and in a pressure wound that had developed on his knee.

-2- Thereafter, Thomas was in and out of multiple medical facilities,

including Saint Joseph Hospital, Select Services Hospital, Brookdale Richmond

Place, and the University of Kentucky Hospital (UK), for various health issues,

including the infected coccyx wound, a hip injury resulting from a fall, sepsis, and

an infection in his knee. Thomas was admitted to UK a final time on October 16,

2015, and subsequently died there on November 30, 2015. The death certificate

cited cardiorespiratory failure as the cause of death.

On December 30, 2015, the Estate filed its complaint asserting claims

of negligence, gross negligence, wrongful death, loss of love and affection,2 and

corporate liability. Appellees moved for summary judgment arguing the Estate

had failed to timely designate an expert. The Estate objected arguing no expert

was required under the doctrine of res ipsa loquitur. In an order entered March 7,

2018, the court determined that the doctrine was not applicable but, in lieu of

granting summary judgment, afforded the Estate an extension of time to disclose

an expert.

The Estate then retained Dr. Jackson who was deposed. At

deposition, Dr. Jackson opined that the Appellees did not meet the applicable

standard of care where they failed to: (1) turn Thomas as frequently as necessary,

(2) provide sufficient skin protection, (3) provide a special mattress, and (4)

2 This claim was dismissed by order entered March 13, 2017, and is not at issue in this appeal.

-3- manage his protein levels. Dr. Jackson stated that he did not know how frequently

Thomas was turned, what skin protection was provided, what type of mattress was

used, or what Thomas’s protein levels were, but opined the Appellees’ actions

were clearly insufficient because a wound developed. By way of explanation, Dr.

Jackson asserted he did not need to know these details because skin breakdown is

always preventable and, accordingly, any skin breakdown is the product of

negligence. Dr. Jackson also could not specifically identify who failed to provide

the necessary care other than to say Dr. Sabiiti failed to order a skin integrity plan.

On the issue of causation, Dr. Jackson acknowledged that Thomas’s

wound was not infected at the time he was discharged from Saint Joseph Hospital.

However, based solely on his experience as the medical director of a nursing home

for 20 years, where he dealt with wound care and bedsores, Dr. Jackson opined the

wound became infected at some point before March 4, 2015, and the infection

migrated to Thomas’s knee. Ultimately, Dr. Jackson believes the skin infection led

to other recurrent infections which entered Thomas’s bloodstream causing sepsis

and contributing to his death. Dr. Jackson acknowledged that Thomas had

multiple health problems, including abscesses in the brain and lung, eye problems

requiring retinal surgery, a seizure disorder, pneumonia, diabetes, hypertension,

foot drop–a neuropathy–and achalasia. Dr. Jackson also conceded that he did not

review Thomas’s medical records from UK for his October through November

-4- 2015 admission (where Thomas died), the Cardinal Hill Home Care notes from

January to March 2015 (the time Dr. Jackson asserts the wound became infected),

Thomas’s primary care records, or Saint Joseph Hospital’s policy and procedures.

Regarding claimed medical expenses, Dr. Jackson opined that the

treatment Thomas received after January 23, 2015, was reasonable and necessary.

When asked how Dr. Jackson could reach this conclusion given his admission that

he did not review all of Thomas’s medical records, Dr. Jackson asserted Thomas

needed treatment but conceded he had not seen the numbers and was speculating.

Dr. Jackson also acknowledged that he was not an expert on hospital service

charges and that he did not have an opinion as to the costs and expenses of the

services provided to Thomas because he did not know the specifics.

After deposition, Appellees moved to exclude Dr. Jackson’s testimony

pursuant to KRE3 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and for partial summary

judgment on the punitive damages and vicarious liability claims. After hearing

arguments, the court found that Dr. Jackson’s testimony was not based upon

sufficient data and facts where he did not review all pertinent medical records and,

regarding the standard of care, where he could not identify specific deviations or

even what should have occurred. The court further found that Dr. Jackson’s

3 Kentucky Rules of Evidence.

-5- testimony was not the product of reliable principles and methods where his

standard of care opinion was inconsistent with Kentucky law and his causation

opinion was based solely on a bald assertion that he had seen similar cases. As to

partial summary judgment, the court concluded the Estate had failed to

demonstrate any affirmative evidence to support punitive damages or vicarious

liability.

Accordingly, by an order entered October 14, 2020, the court

excluded Dr. Jackson’s testimony and granted Appellees summary judgment on the

punitive and vicarious liability claims. On October 28, 2020, the court entered an

order resolving Appellees’ various motions in limine. Finally, on November 18,

2020, the court entered an order granting summary judgment to the Appellees on

all remaining claims. This appeal followed. Additional facts will be introduced as

they become relevant.

ANALYSIS

The Estate claims that the court erred in concluding that the doctrine

of res ispa loquitur is not applicable and necessitating that the Estate obtain an

expert. Before we reach the merits, we will address the Estate’s claim that the

court did not comply with the mandates of Baptist Healthcare System, Inc. v.

Miller, 177 S.W.3d 676 (Ky. 2005), and conduct a hearing. We disagree with the

Estate that Miller necessitates a hearing. Miller held that it would be

-6- “inappropriate to use a CR[4] 56 summary judgment to resolve what is essentially a

procedural dispute as to the need for an expert. In such disputes, it is within the

trial court’s discretion to impose sanctions for failure to comply rather than to grant

summary judgment[.]” Id. at 681-82. The court’s order granting the Estate

additional time to retain an expert after determining res ipsa loquitur did not apply

is consistent with Miller. Therefore, the Estate’s claim of error is without merit.

We now will consider the merits of the court’s decision that res ipsa loquitur does

not apply.

Negligence may not be inferred merely from a poor result. Meador v.

Arnold, 264 Ky. 378, 94 S.W.2d 626, 631 (1936). Generally, the plaintiff in a

medical negligence case has the burden to establish by expert testimony that the

physician breached the standard of care and that the breach was the proximate

cause of the plaintiff’s injury. Ashland Hosp. Corp. v. Lewis, 581 S.W.3d 572 (Ky.

2019). However, the doctrine of res ipsa loquitur serves as a limited exception

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[.]’” Perkins v. Hausladen, 828 S.W.2d 652, 654-55 (Ky. 1992) (quoting in

agreement PROSSER AND KEETON ON TORTS, § 39 (5th ed. 1984)).

4 Kentucky Rules of Civil Procedure.

-7- “Whether expert testimony is required in a given case is squarely

within the trial court’s discretion.” Green v. Owensboro Med. Health Sys., Inc.,

231 S.W.3d 781, 783 (Ky. App. 2007) (citing Keene v. Commonwealth, 516

S.W.2d 852, 855 (Ky. 1974)). Accordingly, we review for an abuse of discretion.

“The test for abuse of discretion is whether the trial judge’s decision was arbitrary,

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

English, 993 S.W.2d 941, 945 (Ky. 1999).

The Estate argues this is a case where a layperson is competent to

determine negligence based on the medical records alone. The Estate asserts that

the medical records demonstrate that Thomas developed a coccyx wound during

his admission, this wound became infected in the 39 days following his discharge

from Appellees’ care, the infection spread throughout Thomas’s body, and he was

still suffering from an infection when he was admitted to the hospital the final time

in October 2015.

We note that the Estate provided no citation to the appellate record to

support its assertions regarding the contents of the medical records. Regardless,

we agree with the court that the processes involved in the development of a wound

during a hospital admission–especially considering Thomas’s multiple medical

conditions–and the onset and spread of infection are not within the general

knowledge of a layperson. See Nalley v. Banis, 240 S.W.3d 658 (Ky. App. 2007)

-8- (affirming the inapplicability of res ipsa loquitur where layperson could not have

determined whether the infection the patient developed after two surgical

procedures was caused by defendants’ negligence) and Harmon v. Rust, 420

S.W.2d 563, 564 (Ky. 1967) (affirming summary judgment where expert witness

was not retained and layperson was without sufficient general knowledge to

recognize that infection after skin transplant and treatment of severe burns is the

result of negligence). Accordingly, the court did not abuse its discretion in

determining that the doctrine did not apply.

The Estate’s next claim is that the court erred in excluding Dr.

Jackson’s testimony. The standard of review for evidentiary issues is abuse of

discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). The trial

court’s factual findings “shall not be set aside unless clearly erroneous[.]” CR

52.01; see also A & A Mechanical, Inc., v. Thermal Equip. Sales, Inc., 998 S.W.2d

505, 509 (Ky. App. 1999). A finding is not clearly erroneous if it is supported by

substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d

409, 414 (Ky. 1998).

As an initial point, the Estate posits that, where there is no assertion

Dr. Jackson does not qualify as an expert, it is per se erroneous for the court to

preclude a jury from hearing his testimony. We disagree. The law has long

recognized that the trial judge acts as a gatekeeper regarding the admission of

-9- expert testimony, a role which extends beyond merely ensuring a witness’s

qualifications. In Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky. 1995),

overruled on other grounds by Fugate v. Commonwealth, 993 S.W.2d 931 (Ky.

1999), the Supreme Court of Kentucky adopted the standard of review articulated

in Daubert, 509 U.S. 579, 113 S. Ct. 2786, which requires a court to determine

whether the testimony is both relevant and reliable.

Likewise, KRE 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if:

(1) The testimony is based upon sufficient facts or data;

(2) The testimony is the product of reliable principles and methods; and

(3) The witness has applied the principles and methods reliably to the facts of the case.

(Emphasis added.)

As the law clearly obligates the court to consider the substance of the

testimony itself, the Estate’s claim is without merit.

The Estate challenges the court’s findings that Dr. Jackson’s

testimony was not based upon sufficient facts or data. Specifically, the Estate

argues the court erred in accepting without evidence that the medical records from

-10- the relevant admission were 2,374 pages–instead of the 150 pages asserted by the

Estate and which Dr. Jackson reviewed–and that specific skin integrity records

exist which Dr. Jackson did not review. On these matters, we must agree. The

only support for these findings in the record comes from the arguments of the

parties, which are not evidence. Chipman v. Commonwealth, 313 S.W.3d 95, 99-

101 (Ky. 2010).

However, the court’s decision rested on more than these findings and

was supported by the record where Dr. Jackson admitted he did not review relevant

portions of the medical records. Further, Dr. Jackson admitted he did not know

critical information regarding Appellees’ care of Thomas. While the Estate argues

this is because Thomas received no skin integrity care and asserts the medical

record contains no relevant information, this is not supported by the record. Dr.

Jackson merely testified he did not know, not that the information was not in the

records or that no protective actions were taken by the Appellees.

Relatedly, the court determined that Dr. Jackson’s testimony

regarding breach of standard of care was not the product of reliable principles and

methods where Dr. Jackson made it clear that he did not need to know the specifics

of Appellees’ actions because, in his view, skin integrity issues are always

preventable, and negligence is presumed if a wound occurs. As the court noted,

this is not consistent with Kentucky law which precludes indulging in a

-11- presumption of negligence based on the mere evidence of a bad result. Andrew v.

Begley, 203 S.W.3d 165, 170-71 (Ky. App. 2006) (citing Meador, 94 S.W.2d at

631). This finding is not clearly erroneous.

Likewise, the court’s finding that Dr. Jackson’s causation opinion was

not the product of reliable principles and methods is supported by the record. It is

well settled that the reasoning or methodology underlying an expert’s testimony

must be scientifically valid and capable of being properly applied to the facts.

Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)

(citing Daubert, 509 U.S. at 592, 113 S. Ct. at 2796; KRE 702). Opinions based

on nothing more than an expert’s assertion of fact do not meet this standard. Id.

Herein, Dr. Jackson’s opinion regarding causation (that an infection

started in the coccyx wound before migrating to the knee and then causing

recurrent infections and contributing to Thomas’s death) was only supported by his

bold assertion that he has seen similar cases. Dr. Jackson provided no details

regarding these cases or even identified how they were similar. Further, when

pressed, Dr. Jackson was not able to articulate a specific basis supporting his

opinion, such as infection cultures, nor did he attempt to articulate any general

medical basis for his opinion, such as known properties of infections.

Because the court’s findings (that Dr. Jackson’s testimony was not

based upon sufficient facts or data and that it was not the product of reliable

-12- principles and methods) are supported by the record, the court did not abuse its

discretion in excluding the testimony.

Finally, the Estate contends that the court erred in granting summary

judgment. Summary judgment is appropriate if “there is no genuine issue as to any

material fact and . . . the moving party is entitled to a judgment as a matter of law.”

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). However, the party opposing the motion cannot merely rely upon his own

claims or arguments but must demonstrate significant evidence to prevail. Wymer

v. JH Props., Inc., 50 S.W.3d 195, 199 (Ky. 2001). We review de novo. Hallahan

v. The Courier-Journal, 138 S.W.3d 699, 705 (Ky. App. 2004).

Herein, the Estate argues that it established a genuine issue of material

fact through Dr. Jackson’s testimony and regarding its vicarious liability claim. It

further argues the court made a factual error regarding the applicability of an

admission consent form. Having affirmed the court’s decision to exclude Dr.

Jackson’s testimony, as well as its decision that res ipsa loquitur does not apply, it

necessarily follows that neither can serve as a basis to preclude summary

judgment. Additionally, as vicarious liability requires a negligent agent, it further

follows that summary judgment on the negligence and wrongful death claims

-13- necessitates summary judgment as to vicarious liability premised on the same

facts. See Cohen v. Alliant Enters., Inc., 60 S.W.3d 536 (Ky. 2001). Thus, this

claim also fails.

As we have affirmed the court’s grant of summary judgment, we need

not address the Estate’s claims regarding the court’s rulings on the motions in

limine. Further, as we have determined that the court did not err in its rulings, the

Estate’s claim of cumulative error is also without merit.

CONCLUSION

Therefore, and for the foregoing reasons, the Fayette Circuit Court’s

orders granting summary judgment, denying the applicability of res ipsa loquitur,

and excluding the Estate’s expert are affirmed.

McNEILL, JUDGE, CONCURS.

THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY AND FILES SEPARATE OPINION.

THOMPSON, K., JUDGE, CONCURRING IN RESULT: I concur

with the well-written Opinion by the majority, however differ as to my analysis to

achieve the same result.

Mr. Thomas presented not only a complex prior medical history but

also multiple comorbidities concurrent with his hospitalization. He also discharged

himself against medical advice from the rehabilitation facility after only three days.

-14- There is no medical evidence in the record of infection at the site of the bedsore

upon either his discharge from the hospital or from the rehabilitation facility.

But for Mr. Thomas’s own resistance to treatment, his bedsore could

have been treated and the potential for any further injury or resultant infection

ameliorated. Further, the developed facts of Mr. Thomas’s case exhibit no causal

connection between the occurrence of the bedsore and either his later infection or

his death within the realm of reasonable medical probability.

However, and to be clear, with a different factual situation, I believe

the incidence of bedsores, and any further injuries resultant therefrom, could

warrant the application of res ipsa loquitur.

And for those reasons, I concur with the result of the majority.

-15- BRIEF FOR APPELLANTS: BRIEF FOR APPELLEES KENTUCKYONE HEALTH Gerry L. Harris PARTNERS, LLC; KENTUCKYONE Lexington, Kentucky HEALTH, INC.; AND SAINT JOSEPH HEALTHCARE, INC. D/B/A SAINT JOSEPH HEALTH SYSTEM INC. A/K/A SAINT JOSEPH HOSPITAL:

Jeffery T. Barnett Kimberly G. DeSimone Lexington, Kentucky

BRIEF FOR APPELLEE JESSE SABIITI, M.D.:

Clayton L. Robinson Nick W. Edwards Lexington, Kentucky

-16-