RENDERED: MAY 6, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0336-MR
EUGENIO MAYOR APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ANGELA MCCORMICK BISIG, JUDGE ACTION NO. 17-CI-005931
CARL A. KIHM, DPM; AND UNIVERSITY FOOT AND ANKLE CENTER, LLC APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Eugenio Mayor (“Mayor”) appeals from the judgment of the
Jefferson Circuit Court after a jury returned a verdict in favor of Dr. Carl A. Kihm
(“Dr. Kihm”) and University Foot and Ankle Center, LLC in this medical
malpractice action. Finding no error, we affirm. Mayor suffered a trimalleolar fracture of his right ankle while
vacationing in Miami, Florida in late summer 2016. After receiving temporary
medical care in Miami, Mayor returned to his home in Louisville, Kentucky to
seek further treatment. On October 21, 2016, Dr. Kihm performed surgery to
repair and stabilize the ankle. During surgery, Dr. Kihm reset and secured
Mayor’s fibula with a plate and screws. Because Mayor’s tibia was in the correct
position and stabilized, Dr. Kihm did not fixate the tibia with hardware. Dr. Kihm
was concerned about the additional risks of a separate incision such as swelling,
post-operative infection, and wound complications, which were elevated due to
Mayor’s age and smoking habit.
Dr. Kihm saw Mayor four times post-surgery. At the third visit on
November 30, 2016, an x-ray showed that Mayor’s tibia was not healing as
expected. However, Mayor expressed no pain at the sight and Dr. Kihm noted that
the fracture in general was progressively improving.
Dr. Kihm last saw Mayor on December 23, 2016. Mayor’s tibia
fracture had still not healed. However, it was an “asymptomatic non-union”
because Mayor expressed no localized pain. Overall, Dr. Kihm felt Mayor’s
prognosis was “very good.” Mayor’s fibula had healed, his tibia was stable, and he
was progressing overall. Dr. Kihm made a note in the medical records for Mayor
to “follow up for reassessment in one month.”
-2- The parties dispute what happened next. What is certain is that Dr.
Kihm never saw Mayor as a patient after December 23, 2016. On November 8,
2017, Mayor filed a medical malpractice action in Jefferson Circuit Court alleging
that Dr. Kihm was negligent in failing to properly repair Mayor’s tibia and that
because of Dr. Kihm’s negligence, Mayor “has continued disrupted mortise,
painful nonunion of the medial malleolus, and will suffer accelerated post-
traumatic arthrosis requiring additional ankle fusion surgery.”1
At trial, Mayor’s expert testified that Dr. Kihm breached the standard
of care when he failed to perform an additional surgery to fixate Mayor’s tibia on
November 30, 2016, when x-rays showed the tibia was not healing. The expert
further testified that on December 23, 2016, the date of Mayor’s last office visit,
Dr. Kihm knew Mayor’s tibia was not healing and his failure to immediately
perform surgery was malpractice.
A contested side issue concerned why Dr. Kihm stopped treating
Mayor after the December 23, 2016 office visit. Dr. Kihm testified he did not
know why he did not see Mayor in January following the December 23, 2016
appointment. However, he stated he did not discharge Mayor as a patient and told
Mayor he wanted to see him again. Dr. Kihm’s office records reflected Mayor’s
1 Mayor also asserted a vicarious negligence claim against Dr. Kihm’s practice group, Appellee University Foot and Ankle Center, LLC.
-3- January 24, 2017 appointment was “cancel[ed] due to no-show[,]” while a January
31, 2017 appointment was “cancel[ed] by patient[.]” Meanwhile, Mayor attempted
to argue Dr. Kihm refused to see him because his insurance had expired.
Prior to trial, Dr. Kihm filed a motion in limine to exclude reference to
either party’s financial condition, and a motion in limine to exclude reference to
liability insurance pursuant to KRE2 411. The motions were heard on the morning
of trial. Arguing both motions simultaneously, Dr. Kihm asserted that evidence
that Mayor’s insurance had lapsed should be excluded. The trial court sustained
the motions generally and further noted that she did not believe whether Mayor had
insurance was relevant.
At trial, Mayor’s counsel tried to elicit testimony from both Yenny
Pino, Mayor’s goddaughter, and Mayor himself that Dr. Kihm refused to continue
seeing Mayor because Mayor’s insurance had lapsed. Dr. Kihm objected and the
trial court ruled that evidence of Mayor’s financial position, including that his
insurance had lapsed, was not relevant to whether Dr. Kihm was negligent, based
upon Mayor’s expert’s testimony that Dr. Kihm should have fixated Mayor’s tibia
on November 30, 2016, and certainly by December 23, 2016, when Dr. Kihm
knew the tibia was not healing.
2 Kentucky Rules of Evidence.
-4- Despite the court’s ruling, Pino still testified on two occasions that
Mayor was discharged as a patient because he did not have insurance. Further,
Mayor stated that it was not his choice to stop seeing Dr. Kihm after the surgery.
Following the evidence, the jury returned a verdict in favor of Dr. Kihm and
University Foot and Ankle Center, LLC. This appeal followed. Additional facts
will be set forth as necessary below.
Mayor argues the trial court misapplied KRE 411 to exclude evidence
his personal insurance had lapsed when it sustained appellee’s motion in limine
No. 9 which sought to prevent evidence of Dr. Kihm’s liability insurance.
Therefore, he contends he was not allowed to introduce evidence that Dr. Kihm
abandoned him as a patient because he did not have insurance, in violation of
KRS3 311.597(4). He further asserts he was prejudiced by his inability to rebut
suggestions that he was a noncompliant patient and that he did not show up for his
appointments in January 2017. Mayor devotes his entire brief to arguing that KRE
411 does not apply to personal health insurance, only liability insurance, and that
Dr. Kihm’s abandonment of Mayor constitutes a violation of KRS. 311.597(4) and
is negligence per se. He concludes with a request for this Court to “to review and
rectify trial courts’ fear of the word ‘insurance’ throughout the Commonwealth.”
3 Kentucky Revised Statutes.
-5- There are several problems with Mayor’s argument. But first we must
address the deficiency of his appellate brief. His argument section fails to make
“reference to the record showing whether the issue was properly preserved for
review and, if so, in what manner” as required by CR4 76.12(4)(c)(v). We require
a statement of preservation:
so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration. It also has a bearing on whether we employ the recognized standard of review, or in the case of an unpreserved error, whether palpable error review is being requested and may be granted.
Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012).
“Our options when an appellate advocate fails to abide by the rules
are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: MAY 6, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0336-MR
EUGENIO MAYOR APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ANGELA MCCORMICK BISIG, JUDGE ACTION NO. 17-CI-005931
CARL A. KIHM, DPM; AND UNIVERSITY FOOT AND ANKLE CENTER, LLC APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Eugenio Mayor (“Mayor”) appeals from the judgment of the
Jefferson Circuit Court after a jury returned a verdict in favor of Dr. Carl A. Kihm
(“Dr. Kihm”) and University Foot and Ankle Center, LLC in this medical
malpractice action. Finding no error, we affirm. Mayor suffered a trimalleolar fracture of his right ankle while
vacationing in Miami, Florida in late summer 2016. After receiving temporary
medical care in Miami, Mayor returned to his home in Louisville, Kentucky to
seek further treatment. On October 21, 2016, Dr. Kihm performed surgery to
repair and stabilize the ankle. During surgery, Dr. Kihm reset and secured
Mayor’s fibula with a plate and screws. Because Mayor’s tibia was in the correct
position and stabilized, Dr. Kihm did not fixate the tibia with hardware. Dr. Kihm
was concerned about the additional risks of a separate incision such as swelling,
post-operative infection, and wound complications, which were elevated due to
Mayor’s age and smoking habit.
Dr. Kihm saw Mayor four times post-surgery. At the third visit on
November 30, 2016, an x-ray showed that Mayor’s tibia was not healing as
expected. However, Mayor expressed no pain at the sight and Dr. Kihm noted that
the fracture in general was progressively improving.
Dr. Kihm last saw Mayor on December 23, 2016. Mayor’s tibia
fracture had still not healed. However, it was an “asymptomatic non-union”
because Mayor expressed no localized pain. Overall, Dr. Kihm felt Mayor’s
prognosis was “very good.” Mayor’s fibula had healed, his tibia was stable, and he
was progressing overall. Dr. Kihm made a note in the medical records for Mayor
to “follow up for reassessment in one month.”
-2- The parties dispute what happened next. What is certain is that Dr.
Kihm never saw Mayor as a patient after December 23, 2016. On November 8,
2017, Mayor filed a medical malpractice action in Jefferson Circuit Court alleging
that Dr. Kihm was negligent in failing to properly repair Mayor’s tibia and that
because of Dr. Kihm’s negligence, Mayor “has continued disrupted mortise,
painful nonunion of the medial malleolus, and will suffer accelerated post-
traumatic arthrosis requiring additional ankle fusion surgery.”1
At trial, Mayor’s expert testified that Dr. Kihm breached the standard
of care when he failed to perform an additional surgery to fixate Mayor’s tibia on
November 30, 2016, when x-rays showed the tibia was not healing. The expert
further testified that on December 23, 2016, the date of Mayor’s last office visit,
Dr. Kihm knew Mayor’s tibia was not healing and his failure to immediately
perform surgery was malpractice.
A contested side issue concerned why Dr. Kihm stopped treating
Mayor after the December 23, 2016 office visit. Dr. Kihm testified he did not
know why he did not see Mayor in January following the December 23, 2016
appointment. However, he stated he did not discharge Mayor as a patient and told
Mayor he wanted to see him again. Dr. Kihm’s office records reflected Mayor’s
1 Mayor also asserted a vicarious negligence claim against Dr. Kihm’s practice group, Appellee University Foot and Ankle Center, LLC.
-3- January 24, 2017 appointment was “cancel[ed] due to no-show[,]” while a January
31, 2017 appointment was “cancel[ed] by patient[.]” Meanwhile, Mayor attempted
to argue Dr. Kihm refused to see him because his insurance had expired.
Prior to trial, Dr. Kihm filed a motion in limine to exclude reference to
either party’s financial condition, and a motion in limine to exclude reference to
liability insurance pursuant to KRE2 411. The motions were heard on the morning
of trial. Arguing both motions simultaneously, Dr. Kihm asserted that evidence
that Mayor’s insurance had lapsed should be excluded. The trial court sustained
the motions generally and further noted that she did not believe whether Mayor had
insurance was relevant.
At trial, Mayor’s counsel tried to elicit testimony from both Yenny
Pino, Mayor’s goddaughter, and Mayor himself that Dr. Kihm refused to continue
seeing Mayor because Mayor’s insurance had lapsed. Dr. Kihm objected and the
trial court ruled that evidence of Mayor’s financial position, including that his
insurance had lapsed, was not relevant to whether Dr. Kihm was negligent, based
upon Mayor’s expert’s testimony that Dr. Kihm should have fixated Mayor’s tibia
on November 30, 2016, and certainly by December 23, 2016, when Dr. Kihm
knew the tibia was not healing.
2 Kentucky Rules of Evidence.
-4- Despite the court’s ruling, Pino still testified on two occasions that
Mayor was discharged as a patient because he did not have insurance. Further,
Mayor stated that it was not his choice to stop seeing Dr. Kihm after the surgery.
Following the evidence, the jury returned a verdict in favor of Dr. Kihm and
University Foot and Ankle Center, LLC. This appeal followed. Additional facts
will be set forth as necessary below.
Mayor argues the trial court misapplied KRE 411 to exclude evidence
his personal insurance had lapsed when it sustained appellee’s motion in limine
No. 9 which sought to prevent evidence of Dr. Kihm’s liability insurance.
Therefore, he contends he was not allowed to introduce evidence that Dr. Kihm
abandoned him as a patient because he did not have insurance, in violation of
KRS3 311.597(4). He further asserts he was prejudiced by his inability to rebut
suggestions that he was a noncompliant patient and that he did not show up for his
appointments in January 2017. Mayor devotes his entire brief to arguing that KRE
411 does not apply to personal health insurance, only liability insurance, and that
Dr. Kihm’s abandonment of Mayor constitutes a violation of KRS. 311.597(4) and
is negligence per se. He concludes with a request for this Court to “to review and
rectify trial courts’ fear of the word ‘insurance’ throughout the Commonwealth.”
3 Kentucky Revised Statutes.
-5- There are several problems with Mayor’s argument. But first we must
address the deficiency of his appellate brief. His argument section fails to make
“reference to the record showing whether the issue was properly preserved for
review and, if so, in what manner” as required by CR4 76.12(4)(c)(v). We require
a statement of preservation:
so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration. It also has a bearing on whether we employ the recognized standard of review, or in the case of an unpreserved error, whether palpable error review is being requested and may be granted.
Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012).
“Our options when an appellate advocate fails to abide by the rules
are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief
or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the
brief for manifest injustice only[.]” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky.
App. 2010) (citing Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990)). Mayor’s
brief does make several references to the trial court’s ruling on appellee’s motion
in limine No. 9, with a citation to the record in his statement of the case. Because
we have been able to determine his arguments were properly preserved, we will
ignore the deficiency and proceed with the review.
4 Kentucky Rules of Civil Procedure.
-6- We review decisions to admit or exclude evidence under an abuse of
discretion standard. Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 720 (Ky.
2009). “The test for abuse of discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)
(citation omitted).
Contrary to Mayor’s assertions, the basis for the trial court’s ruling
was not KRE 411 but KRE 402. On the morning of trial, the court addressed Dr.
Kihm’s motions in limine Nos. 1 and 9 to exclude reference to any party’s financial
condition and to exclude evidence of Dr. Kihm’s liability insurance. During
argument, Dr. Kihm specifically moved to exclude evidence Mayor’s health
insurance had lapsed. While Dr. Kihm argued both motions together and even
mentioned that evidence Mayor’s Passport insurance had lapsed should be
excluded because it is a reference to insurance, it is clear the trial court ruled that
such evidence was inadmissible because it was not relevant. The trial court’s oral
ruling on the record was as follows:
The motion in limine is to exclude reference to either party’s financial standing, and that is sustained in that normally in a case the relative financial strength or whether someone is rich or poor is not relevant to whether Dr. Kihm’s care was negligent or not. So, in general, the motion to exclude reference to either party’s financial standing and the motion to exclude reference to insurance is sustained as it is routinely in any trial. With
-7- this specific issue of part of the decision not to seek follow-up care being that his insurance had lapsed, I don’t think still that the insurance coverage or not is relevant . . . I don’t think the financial position of either party should be relevant[.]
During the testimony of Yenny Pino, who accompanied Mayor to his
appointments, Mayor’s counsel attempted to ask Pino why Mayor did not see Dr.
Kihm after the December 23, 2016 appointment. The parties approached the bench
and the court clarified its previous ruling:
[I]f her answer is going to be because he couldn’t afford it, or because his insurance lapsed, or because the nurse said Dr. Kihm didn’t want to treat him anymore. . . . I don’t know that any of those are relevant. In other words, if Dr. Kihm is seeing your client – your argument is he should have said “now you need to come in for another surgery” and he didn’t, I don’t know if whether or not he kept his insurance up or whether or not he tried to pursue other options [for treatment]. . . . I just don’t know if there is anything relevant in that answer. . . . I don’t think the finances have anything to do with it.
Because the trial court’s ruling was not based upon KRE 411, any
arguments concerning that rule are not properly before us and we will not address
them. “Questions which are merely advisory, academic, hypothetical, incidental or
remote, or which will not be decisive of a present controversy do not present
justiciable controversies.” Pettingill v. Pettingill, 480 S.W.3d 920, 923 (Ky. 2015)
(internal quotation marks and citation omitted).
However, we will address Mayor’s underlying argument that the trial
-8- court erred in excluding evidence of Mayor’s insurance status. Mayor argues he
“was not permitted to put on his case as he so intended because of the trial
court’s evidentiary ruling.” We find the trial court did not abuse its discretion in
excluding evidence that Mayor’s insurance had lapsed under KRE 402.
“Trial courts enjoy substantial discretion in admitting or excluding
evidence at trial.” Daugherty v. Commonwealth, 467 S.W.3d 222, 231 (Ky. 2015).
Pursuant to KRE 402, “[e]vidence which is not relevant is not admissible.”
“‘Relevant evidence’ means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” KRE 401.
Evidence that Mayor’s insurance had lapsed was not relevant to his
claim of medical negligence. Mayor’s expert, Dr. Anthony J. McEldowney,
testified that Dr. Kihm was negligent when he did not perform a second surgery on
November 30, 2016 or December 23, 2016 when he knew that Mayor’s tibia
fracture was not healing. Dr. McEldowney offered no criticisms of Dr. Kihm’s
care following those dates nor any criticism about Dr. Kihm’s failing to see Mayor
after the December 23, 2016 appointment. Therefore, any evidence of what
occurred after those dates was simply not relevant to any issue the jury had to
decide.
-9- Further, Mayor can show no prejudice because, despite the trial
court’s ruling, Yenny Pino testified that Mayor stopped seeing Dr. Kihm because
he did not have insurance. Mayor’s counsel asked Pino if Dr. Kihm formally
discharged Mayor as a patient and she replied yes because “we didn’t have the
insurance.” At another point Pino stated the last time she took Mayor to see Dr.
Kihm was to get more pain medication but “we got released, for no reason I guess,
I don’t know, because we didn’t have insurance.” Mayor also testified that it was
not his decision to discontinue treatment with Dr. Kihm.
Lastly, to the extent Mayor argues he was not allowed to present
evidence of a negligence per se claim based upon KRS 311.597(4) due to Dr.
Kihm’s abandonment of Mayor, we find no error. Such evidence was not relevant
because his complaint did not state a claim for any violation of that statute.
Neither was there evidence that any potential violation of KRS 311.597(4) caused
Mayor injury. See Stivers v. Ellington, 140 S.W.3d 599, 601 (Ky. App. 2004)
(“[C]ausation and injury must still be proved in negligence per se claims.”).
Accordingly, the judgment of the Jefferson Circuit Court is affirmed.
Appellees’ motion to dismiss is rendered moot by the decision in this Opinion and
will be denied by separate Order entered simultaneously with this Opinion.
ALL CONCUR.
-10- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Jeffrey A. Sexton Patricia C. Le Meur Louisville, Kentucky Nicholas R. Hart John F. Parker, Jr. Louisville, Kentucky
-11-