Hollie Jackson, as Administrator of the Estate of Emma Hayes, and on Behalf of the Wrongful Death Beneficiaries of Emma Hayes v. Mayfield Ky Opco, LLC D/B/A Mayfield Health and Rehabilitation
This text of Hollie Jackson, as Administrator of the Estate of Emma Hayes, and on Behalf of the Wrongful Death Beneficiaries of Emma Hayes v. Mayfield Ky Opco, LLC D/B/A Mayfield Health and Rehabilitation (Hollie Jackson, as Administrator of the Estate of Emma Hayes, and on Behalf of the Wrongful Death Beneficiaries of Emma Hayes v. Mayfield Ky Opco, LLC D/B/A Mayfield Health and Rehabilitation) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
RENDERED: DECEMBER 18, 2025 TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0180-DG
HOLLIE JACKSON, AS APPELLANT ADMINISTRATOR OF THE ESTATE OF EMMA HAYES, DECEASED, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF EMMA HAYES
ON REVIEW FROM COURT OF APPEALS V. NO. 2023-CA-0260 GRAVES CIRCUIT COURT NO. 21-CI-00367
MAYFIELD KY OPCO, LLC D/B/A APPELLEES MAYFIELD HEALTH AND REHABILITATION; CLEARVIEW HEALTHCARE MANAGEMENT KY, LLC D/B/A CLEARVIEW HEALTHCARE MANAGEMENT; CRYSTAL JANES; HUGHES ASH; SUSAN ALLEN, RN; AND THE PORTOPICCOLO GROUP, LLC
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
REVERSING AND REMANDING
Hollie Jackson, as administrator of his late mother’s estate, appeals a
Court of Appeals ruling that affirmed the Graves Circuit Court’s dismissal of
his lawsuit against nursing home defendants Mayfield, KY OPCO, LLC D/B/A
Mayfield Health and Rehabilitation; Clearview Healthcare Management, KY,
LLC D/B/A Clearview Healthcare Management; Crystal Janes; Hughes Ash; Susan Allen; and the Portopiccolo Group, LLC (collectively, Mayfield). The
circuit court granted summary judgment in favor of Mayfield upon finding that
it was entitled to immunity under KRS 1 39A.275, Kentucky’s COVID immunity
statute. After review, this Court holds that the circuit court erred by granting
summary judgment. We accordingly reverse the Court of Appeals’ decision,
vacate the circuit court’s summary judgment order, and remand for further
proceedings consistent with this Opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 6, 2018, then-eighty-five-year-old Emma Hayes was
admitted to Mayfield, a nursing home. Emma required twenty-four-hour
monitoring and assistance with all aspects of daily life due to being wheelchair
bound, her advanced age, and her numerous health conditions such as
congestive heart failure, non-Alzheimer’s dementia, epilepsy, syncope, chronic
obstructive pulmonary disease, osteoarthritis, arteriosclerotic heart disease,
diabetes, cholelithiasis, arteriosclerotic peripheral vascular disease,
arteriosclerotic cerebrovascular disease, and pulmonary hypertension.
As detailed below, we know very little about Emma’s level of care because
Mayfield refused to respond to the majority of Jackson’s requests for discovery.
However, portions of her medical records from Mayfield establish that on
November 26, 2020, she tested positive for COVID and was transferred to
Mayfield’s dedicated COVID unit. One week later on December 3, 2020, at
1 Kentucky Revised Statutes.
2 8:51 a.m. Mayfield’s staff attempted to rouse Emma in order to administer her
numerous medications but were unable to. Abandoning that effort, Mayfield’s
staff took no action until nearly five hours later 2 at 1:45 p.m. when they took
her vitals. By that time her blood pressure was 160/75, her pulse was forty-
four beats per minute, her oxygen saturation was eighty-seven percent, her
respiration was fifty breaths per minute and “labored,” her temperature was
ninety-nine point six degrees Fahrenheit, and there was “jerking/twitching of
[her] upper extremities and head.” Emma was accordingly transported by
ambulance to Jackson Purchase Medical Center (JPMC), a local hospital.
The ambulance’s patient care record stated that Emma’s level of distress
was “severe.” The “chief complaint” listed was difficulty breathing and the
“secondary complaint” was altered mental status. The emergency service
worker’s primary impression was “shortness of breath” and his or her
secondary impression was “COVID-19 – confirmed by testing.” The emergency
room records from JPMC indicate that Emma was in respiratory distress when
she arrived at 2:38 p.m., that she was intubated at 2:58 p.m., and that she
passed away at 3:40 p.m.
Despite the fact that Emma was deceased by 3:40 p.m. on December 3,
2020, her medical records from Mayfield charted that evening mysteriously
2 Mayfield asserted, and the circuit court found in its order granting summary
judgment, that Mayfield took Emma’s vitals at 9:51 a.m. on December 3 and found them to be normal. There is no evidence that this ever occurred based on any of Emma’s medical records that are now before this Court. The circuit court also found that a chest x-ray was performed on December 2, 2020, that showed no acute cardiopulmonary disease. Again, we find nothing in Emma’s medical records now before us that support that finding.
3 state that during the night shift from 6 p.m. on December 3 to 6 a.m. on
December 4 she received assistance with bed mobility; she was assisted with
dressing herself; that she voided her bowels, and the substance was putty-like;
that a pressure reducing device was placed in her bed; that she was turned
and repositioned in bed; that no troubling behavior such as crying, screaming,
kicking, biting, spitting, or abusive language were observed; and that she
refused to eat a snack.
Jackson filed the lawsuit at issue herein on November 9, 2021. His nine-
count complaint alleged negligence, medical negligence, violations of a long-
term care resident’s rights, common law fraud, breach of fiduciary duty,
wrongful death, entitlement to punitive damages, and individual counts of
negligence against two administrators and a registered nurse. Jackson’s
complaint asserted that Mayfield knew Emma was dependent upon it for
twenty-four-hour care and that due to its ongoing and routine indifference for
her basic care and needs she suffered respiratory failure, significant pain that
went untreated, the accelerated deterioration of her health, unplanned weight
loss and malnutrition, violations of her dignity, and death.
The complaint alleged that Mayfield engaged in various acts of
misconduct such as failing to maintain sufficient staffing levels and
appropriate oversight of nursing personnel; failing to follow applicable rules
and regulations promulgated by the Cabinet for Health and Family Services
4 (CHFS); 3 failing to maintain records; failing to allocate sufficient resources to
ensure patients’ basic care needs were met; failing to take reasonable steps to
prevent, eliminate, and correct deficiencies in resident care; and failing to
disclose a culture of patient harm within the facility.
The complaint further alleged that Mayfield failed to ensure Emma
received timely and accurate care assessments, treatments, and medications;
failed to ensure she received timely medical intervention in response to
significant changes in condition; failed to recognize significant changes in her
health status, failed to notify her physician and family of those changes, and
failed to transfer her to a hospital when her health declined beyond Mayfield’s
ability to treat; failed to ensure Emma was kept free from mental and physical
abuse; and that it took affirmative steps to conceal its own fraudulent conduct
by manipulating and/or falsifying Emma’s medical records in an attempt to
make it appear that her minimum care needs were being met. It asserted that
Mayfield’s acts of negligence and medical negligence “[were] accompanied by
such wanton or reckless disregard for the health and safety of [Emma] as to
constitute gross negligence.” None of Jackson’s claims for relief were based on
Emma’s exposure to, or contraction of COVID, nor did he allege that Emma’s
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: DECEMBER 18, 2025 TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0180-DG
HOLLIE JACKSON, AS APPELLANT ADMINISTRATOR OF THE ESTATE OF EMMA HAYES, DECEASED, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF EMMA HAYES
ON REVIEW FROM COURT OF APPEALS V. NO. 2023-CA-0260 GRAVES CIRCUIT COURT NO. 21-CI-00367
MAYFIELD KY OPCO, LLC D/B/A APPELLEES MAYFIELD HEALTH AND REHABILITATION; CLEARVIEW HEALTHCARE MANAGEMENT KY, LLC D/B/A CLEARVIEW HEALTHCARE MANAGEMENT; CRYSTAL JANES; HUGHES ASH; SUSAN ALLEN, RN; AND THE PORTOPICCOLO GROUP, LLC
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
REVERSING AND REMANDING
Hollie Jackson, as administrator of his late mother’s estate, appeals a
Court of Appeals ruling that affirmed the Graves Circuit Court’s dismissal of
his lawsuit against nursing home defendants Mayfield, KY OPCO, LLC D/B/A
Mayfield Health and Rehabilitation; Clearview Healthcare Management, KY,
LLC D/B/A Clearview Healthcare Management; Crystal Janes; Hughes Ash; Susan Allen; and the Portopiccolo Group, LLC (collectively, Mayfield). The
circuit court granted summary judgment in favor of Mayfield upon finding that
it was entitled to immunity under KRS 1 39A.275, Kentucky’s COVID immunity
statute. After review, this Court holds that the circuit court erred by granting
summary judgment. We accordingly reverse the Court of Appeals’ decision,
vacate the circuit court’s summary judgment order, and remand for further
proceedings consistent with this Opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 6, 2018, then-eighty-five-year-old Emma Hayes was
admitted to Mayfield, a nursing home. Emma required twenty-four-hour
monitoring and assistance with all aspects of daily life due to being wheelchair
bound, her advanced age, and her numerous health conditions such as
congestive heart failure, non-Alzheimer’s dementia, epilepsy, syncope, chronic
obstructive pulmonary disease, osteoarthritis, arteriosclerotic heart disease,
diabetes, cholelithiasis, arteriosclerotic peripheral vascular disease,
arteriosclerotic cerebrovascular disease, and pulmonary hypertension.
As detailed below, we know very little about Emma’s level of care because
Mayfield refused to respond to the majority of Jackson’s requests for discovery.
However, portions of her medical records from Mayfield establish that on
November 26, 2020, she tested positive for COVID and was transferred to
Mayfield’s dedicated COVID unit. One week later on December 3, 2020, at
1 Kentucky Revised Statutes.
2 8:51 a.m. Mayfield’s staff attempted to rouse Emma in order to administer her
numerous medications but were unable to. Abandoning that effort, Mayfield’s
staff took no action until nearly five hours later 2 at 1:45 p.m. when they took
her vitals. By that time her blood pressure was 160/75, her pulse was forty-
four beats per minute, her oxygen saturation was eighty-seven percent, her
respiration was fifty breaths per minute and “labored,” her temperature was
ninety-nine point six degrees Fahrenheit, and there was “jerking/twitching of
[her] upper extremities and head.” Emma was accordingly transported by
ambulance to Jackson Purchase Medical Center (JPMC), a local hospital.
The ambulance’s patient care record stated that Emma’s level of distress
was “severe.” The “chief complaint” listed was difficulty breathing and the
“secondary complaint” was altered mental status. The emergency service
worker’s primary impression was “shortness of breath” and his or her
secondary impression was “COVID-19 – confirmed by testing.” The emergency
room records from JPMC indicate that Emma was in respiratory distress when
she arrived at 2:38 p.m., that she was intubated at 2:58 p.m., and that she
passed away at 3:40 p.m.
Despite the fact that Emma was deceased by 3:40 p.m. on December 3,
2020, her medical records from Mayfield charted that evening mysteriously
2 Mayfield asserted, and the circuit court found in its order granting summary
judgment, that Mayfield took Emma’s vitals at 9:51 a.m. on December 3 and found them to be normal. There is no evidence that this ever occurred based on any of Emma’s medical records that are now before this Court. The circuit court also found that a chest x-ray was performed on December 2, 2020, that showed no acute cardiopulmonary disease. Again, we find nothing in Emma’s medical records now before us that support that finding.
3 state that during the night shift from 6 p.m. on December 3 to 6 a.m. on
December 4 she received assistance with bed mobility; she was assisted with
dressing herself; that she voided her bowels, and the substance was putty-like;
that a pressure reducing device was placed in her bed; that she was turned
and repositioned in bed; that no troubling behavior such as crying, screaming,
kicking, biting, spitting, or abusive language were observed; and that she
refused to eat a snack.
Jackson filed the lawsuit at issue herein on November 9, 2021. His nine-
count complaint alleged negligence, medical negligence, violations of a long-
term care resident’s rights, common law fraud, breach of fiduciary duty,
wrongful death, entitlement to punitive damages, and individual counts of
negligence against two administrators and a registered nurse. Jackson’s
complaint asserted that Mayfield knew Emma was dependent upon it for
twenty-four-hour care and that due to its ongoing and routine indifference for
her basic care and needs she suffered respiratory failure, significant pain that
went untreated, the accelerated deterioration of her health, unplanned weight
loss and malnutrition, violations of her dignity, and death.
The complaint alleged that Mayfield engaged in various acts of
misconduct such as failing to maintain sufficient staffing levels and
appropriate oversight of nursing personnel; failing to follow applicable rules
and regulations promulgated by the Cabinet for Health and Family Services
4 (CHFS); 3 failing to maintain records; failing to allocate sufficient resources to
ensure patients’ basic care needs were met; failing to take reasonable steps to
prevent, eliminate, and correct deficiencies in resident care; and failing to
disclose a culture of patient harm within the facility.
The complaint further alleged that Mayfield failed to ensure Emma
received timely and accurate care assessments, treatments, and medications;
failed to ensure she received timely medical intervention in response to
significant changes in condition; failed to recognize significant changes in her
health status, failed to notify her physician and family of those changes, and
failed to transfer her to a hospital when her health declined beyond Mayfield’s
ability to treat; failed to ensure Emma was kept free from mental and physical
abuse; and that it took affirmative steps to conceal its own fraudulent conduct
by manipulating and/or falsifying Emma’s medical records in an attempt to
make it appear that her minimum care needs were being met. It asserted that
Mayfield’s acts of negligence and medical negligence “[were] accompanied by
such wanton or reckless disregard for the health and safety of [Emma] as to
constitute gross negligence.” None of Jackson’s claims for relief were based on
Emma’s exposure to, or contraction of COVID, nor did he allege that Emma’s
injuries or death were caused by Mayfield’s services or treatment to address the
spread of COVID, or any services Mayfield performed outside the normal course
3 To be clear, Jackson’s complaint did not state that Mayfield failed to follow
COVID regulations promulgated by CHFS, but rather that it failed to follow the non- pandemic related regulations it was required to follow as a licensed nursing home.
5 of its business in response to COVID. Indeed, the word “COVID” appears
nowhere in his complaint.
Mayfield’s answer asserted a number of defenses. Pertinent to our
purposes herein, Mayfield contended that “[p]ending discovery, KRS 39A.275 [(
the COVID immunity statute)] bars Plaintiff’s Complaint in whole or in part[,]”
and that “[p]ending discovery, the PREP[4] Act, 42 U.S.C.[5] § 247d-6d bars
Plaintiff’s Complaint in whole or in part.” For context, Kentucky’s COVID
immunity statute deems essential service providers 6 as agents of the
Commonwealth “for the limited purpose of providing essential services arising
from COVID-19[,]” and declares that “[a]ny essential service provider during the
declared emergency of the COVID-19 pandemic shall not be liable for any
COVID-19 claim.” KRS 39A.275(8)(a), (9). “COVID-19 claim” is in turn defined
as “any claim or cause of action for an act or omission arising from COVID-
19[.]” KRS 39A.275(1)(c). Finally, the act defines “arising from COVID-19” as
an injury or harm that allegedly occurred on or after the emergency was declared on March 6, 2020, and until the emergency declaration is withdrawn, revoked, or lapses, caused by or resulting from:
1. The actual, alleged, or possible exposure to, transmission of, or contraction of COVID-19; 2. Services, treatment, or other action performed to limit or prevent the spread of COVID-19; or 3. Services performed by an entity outside the normal course of its business in response to COVID-19[.]
4 Public Readiness and Emergency Preparedness Act.
5 United States Code.
6 The parties do not dispute that Mayfield is an essential service provider. See
KRS 39A.275(9)(b).
6 KRS 39A.275(1)(a)1.-3. The statute does not provide immunity to essential
service providers “for gross negligence, or wanton, willful, malicious, or
intentional misconduct.” KRS 39A.275(8)(b).
In contrast, the PREP Act provides immunity to “a covered person. . .
with respect to all claims for loss caused by, arising out of, relating to, or
resulting from the administration to or the use by an individual of a covered
countermeasure if” a public health emergency has been declared with respect
to such countermeasure by the Secretary of Health and Human Services. 42
U.S.C. § 247d-6d(a)(1), (b). A “covered countermeasure” is in turn defined as “a
qualified pandemic or epidemic product[,]” “a security countermeasure[,]” “a
drug. . . or device. . . that is authorized for emergency use[,]” or “a respiratory
protective device that is issued by [NIOSH] 7. . . and that the Secretary
determines to be a priority for use during a public health emergency[.]” 42
U.S.C. § 247d-6d(i)(1)(A)-(D). And a “covered person” is defined as the United
States or a person or entity that is a manufacturer, distributor, or program
planner of such countermeasure; a qualified person who prescribed,
administered, or dispensed such countermeasure; or an official, agent, or
employee of the foregoing entities or persons. 42 U.S.C. § 247d-6d(i)(2)(A)-(B).
The Act does not provide immunity for “death or serious physical injury
proximately caused by willful misconduct . . . by such covered person.” 42
U.S.C. § 247d-6d(d)(1).
7 National Institute for Occupational Safety and Health.
7 After Mayfield filed its answer, Jackson filed a notice of service of
discovery requests on December 6, 2021. Several months later, in April 2022,
defendant Portopiccolo Group filed a motion to dismiss based on the circuit
court’s alleged lack of personal jurisdiction. One month later the circuit court
ordered the parties to “conduct limited discovery on the issue of personal
jurisdiction, including a deposition of Defendant The Portopiccolo Group.” It
scheduled an evidentiary hearing on that issue for July 19, 2022. However, on
June 14, 2022, prior to the deposition and evidentiary hearing, Portopiccolo
filed a notice to voluntarily withdraw its motion to dismiss.
Also in April 2022, Mayfield filed its response to Jackson’s first set of
requests for the production of documents. Jackson had requested numerous
documents, including copies of photographs and videos of Emma during her
stay and a floor plan of the facility; all of Emma’s clinical records; Emma’s
financial/business file from the facility; Emma’s pre-admission screening;
Emma’s medication records; incident reports and related investigations
concerning Emma; employee staffing records; all emails responsive to a search
protocol Jackson provided; workload information documents; caregiver and
management personnel records; Mayfield’s policies and procedures of
operation; employee disciplinary action records; records of complaints and
critical communications regarding substandard care; and audit trails. 8
8 We note that all of the requests were limited to the time period of Emma’s
residency at Mayfield.
8 Mayfield objected to producing any of the documents Jackson requested
apart from a floor plan of its facility and a copy of Emma’s medical charts. And
it appears that Mayfield did not provide the entirety of Emma’s medical charts,
as she was a resident from February 2018 to December 2020, but the medical
charts of record are dated from October 28, 2020, to December 3, 2020.
Mayfield likewise objected to the majority of Jackson’s interrogatories. 9
On October 26, 2022, Mayfield filed the motion for summary judgment at
issue herein. One week later Jackson filed a thirty-page motion to compel that
detailed why each of his discovery requests were relevant and appropriate. He
also filed separate motions to compel the production of emails, to compel the
production of audit trails, and to compel Mayfield’s deposition. Rather than
order the production of those documents or deposition, the circuit court set a
hearing on Mayfield’s motion for summary judgment for December 27, 2022.
On November 11, Jackson filed his response to Mayfield’s motion for
summary judgment. Attached to his response as exhibits, Jackson provided
copies of Emma’s medical records from Mayfield dated October 28, 2020, to
December 3, 2020; Mayfield medical records that state it provided her care
after her death as if she were still living as discussed above; Emma’s death
certificate; and an affidavit from Dr. David Mansfield. Emma’s death certificate
was prepared by Graves County Coroner Brad Jones and stated that her
9 Defendant Clearview Healthcare also objected to all of Jackson’s requests for
the production of documents and most of his interrogatories. None of the other defendants below responded to the requests.
9 causes of death were “a. Acute Respiratory Distress due to (or as a
consequence of): b. CHF 10 due to (or as a consequence of): c. COPD 11 due to (or
as a consequence of): d. COVID-19[.]” Dr. Mansfield’s affidavit stated that he
was a medical doctor and had treated geriatric patients since 1982. “[B]ased
on information available to [him] and [Emma’s] medical records[,]” Dr.
Mansfield attested to his opinion that COVID was not a substantial factor in
causing her death. He further stated his belief that Mayfield and its operators
“acted with wanton or reckless disregard for [Emma’s] life and safety” by failing
to timely and appropriately monitor and assess her condition, failing to timely
and appropriately keep her physician and family informed of her medical
condition, and failing to timely discharge her to a hospital on December 3,
2020.
Mayfield filed its reply in support of summary judgment on December 9.
The ambulance patient care report and emergency room records discussed
above as well as an affidavit of Coroner Jones and his coroner’s report were
attached to the reply as exhibits. Coroner Jones’ affidavit stated that he was
not a medical doctor, and that the entirety of his investigation into Emma’s
cause of death consisted of reviewing documents from JPMC’s emergency
department, speaking with the emergency department physician and staff, and
speaking with Emma’s family. Coroner Jones did not review any other hospital
medical records or any Mayfield medical records, he did not speak to Emma’s
10 Congestive heart failure.
11 Chronic obstructive pulmonary disease.
10 primary care physician or any physician that specialized in infectious disease
or respiratory care, and he did not speak to anyone at Mayfield. The coroner’s
report recounts Coroner Jones’ opinion that Emma’s immediate cause of death
was acute respiratory distress. It further listed CHF due to, or as a
consequence of COPD, COVID, and type two diabetes as additional causes of
death. Both the coroner’s report and Jones’ affidavit stated that no autopsy
was performed.
Mayfield argued in support of its summary judgment motion that
Jackson’s claim was a “COVID-19 claim” by discussing each prong of KRS
39A.275(1)(a). As noted, subsection 1. of KRS 39A.275(1)(a) defines a claim
that “[arises] from COVID-19” as an injury or harm that is caused by or that
results from “[t]he actual, alleged, or possible exposure to, transmission of, or
contraction of COVID-19[.]” Mayfield argued that the statute “applies to any
injury arising after March 6, 2020, not only to COVID-19.” It asserted that the
thrust of Jackson’s argument was that Emma suffered respiratory failure and
death. Mayfield argued that her contraction of COVID was what “caused her
respiratory failure and death[,]” and that the immunity statute therefore
applied.
Under Subsection 2. (an injury or harm caused by or resulting from
“[s]ervices, treatment, or other action performed to limit or prevent the spread
of COVID-19[]”), and Subsection 3. (an injury or harm caused by or resulting
from “[s]ervices performed by an entity outside the normal course of its
business in response to COVID-19[]”) Mayfield argued that those endeavors
11 were “indisputably occurring from March 6, 2020[,] through the end of
[Emma’s] residency at [Mayfield.]” In support, it only cited to generally
applicable CMS 12 memoranda from August 26, 2020, and September 17, 2020;
generally applicable CMS waivers granted to nursing homes during the
pandemic; and a Kentucky Long-Term Care Facility COVID-19 Indicator Report
from December 3, 2020, showing that Graves County facilities should have
been testing its patients for COVID two times per week. It argued that because
Emma had been transferred to its COVID unit, and because that unit only
existed outside normal business operations to limit the spread of COVID, that
Subsections 2. and 3. were also satisfied.
Finally, concerning gross negligence and whether additional discovery
was required, Mayfield asserted that Jackson “had ample opportunity and time
to make a gross negligence case, but [he had] not put forth any evidence that
would support such a claim[,]” and that no such evidence existed.
Jackson argued in response that summary judgment would be
inappropriate because there were still several material facts in dispute, not
least of which was Emma’s cause of death. He contended that her death was
not caused by COVID, but rather Mayfield’s neglect over the last few weeks of
her life and its failure to timely act after she exhibited a clear change in
condition on December 3, 2020. He relied on Dr. Mansfield’s opinion that
COVID was not a substantial factor in Emma’s death and highlighted that
12 Centers for Medicare and Medicaid Services.
12 Mayfield had provided no proof that her death was due solely to COVID.
Moreover, Mayfield’s reliance on Emma’s death certificate as proof of her cause
of death was insufficient, as a death certificate is only a vital record and
Coroner Jones was neither a medical doctor nor was he qualified to diagnose
medical conditions.
Jackson asserted that Mayfield neglected Emma both before and after
she tested positive for COVID, evidenced by Emma’s unplanned weight loss
that began in August 2020 without appropriate action by Mayfield. 13 Jackson
also argued that in the twenty-six days before Emma tested positive for COVID
on November 26, 2020, her Mayfield records contained only one day with a
nurse’s note (November 12, 2020) and that the note did not reflect that a
complete nursing assessment was performed. 14 In addition, in the seven days
following her COVID diagnosis her medical records contained only two days
with nurses notes that also do not reflect a complete assessment.
He additionally argued that when Mayfield found Emma unresponsive on
the morning of December 3, 2020, it was a significant change in her condition
that required Mayfield to notify her physician and family, to immediately
transfer her to a hospital, and to immediately assess her and take any action
necessary to ensure she received the care she required, but it did none of those
13 We note that her Mayfield medical records indicate, both prior to and after
her COVID diagnosis, that she was being given fortified shakes to address weight loss. 14 Jackson further asserted that following Emma’s contraction of COVID her
physician ordered increased monitoring, including checking her pulse oximetry three times a day for thirty days and additional medications, but those orders are not in the record before us.
13 things until nearly five hours later. He contended that this delay was gross
negligence in and of itself, supported by Dr. Mansfield’s affidavit that opined
that Mayfield’s failure to act was a wanton or reckless disregard for Emma’s life
and safety.
Jackson further asserted that Mayfield had offered no evidence that there
was a causal connection between any COVID countermeasure and Emma’s
injuries. The basic nursing care Jackson argued it failed to provide—including
timely and appropriately monitoring her condition, timely notifications to her
physician and family of changes in her condition, and ensuring she received
proper nutrition—were essential functions of a nursing home, not actions
taken outside the course of ordinary business or performed to limit the spread
of COVID. Nor had Mayfield argued that it had to stop providing these basic
nursing functions because of COVID, or that any countermeasure it employed
impacted its ability to care for her. Instead, it made only general assertions
that all nursing homes were employing countermeasures, and that Emma was
placed on its COVID unit.
Jackson also argued that he was entitled to additional discovery on the
disputed fact issues in the case as well as his claim of gross negligence, and
that Mayfield had refused to participate in discovery in good faith.
Following the December 27, 2022, hearing the circuit court granted
Mayfield’s motion for summary judgment. Interestingly, although the circuit
court’s order quotes several subsections of KRS 39A.275, it does not recount or
directly address the most crucial sections: subsections 1. through 3. of KRS
14 39A.275(1)(a) which define what it means for a claim to “[arise] from COVID-
19[.]” The court instead simply found that Emma “died, at least in part, from
COVID-19 as evidenced by the death certificate. As such, the Defendants are
immune from suit unless gross negligence, wanton, willful, malicious, or
intentional misconduct is shown.” It further found that Jackson’s allegations
did not rise to the level of gross negligence as a matter of law. As the court
found Mayfield was entitled to immunity under Kentucky’s COVID immunity
statute, it declined to address whether it was entitled to immunity under the
PREP Act. The court dismissed all of Jackson’s claims with prejudice.
The Court of Appeals unanimously affirmed the circuit court. Jackson v.
Mayfield KY OPCO, LLC, 2023-CA-0260-MR, 2024 WL 1335637, *1 (Ky. App.
Mar. 29, 2024). The court reasoned that KRS 39A.275 does not require the
actual contraction of COVID to trigger immunity, but rather “even the ‘alleged’
or ‘possible exposure’ to, transmission of, or contraction of COVID-19 is
sufficient to trigger immunity under KRS 39A.275(1)(a)1.” Id. at *2. It further
held that, although the statute does not provide immunity for gross negligence,
Jackson had failed to present sufficient proof on that front. Id. at *2-*3.
Ostensibly viewing Dr. Mansfield’s affidavit as the only evidence of gross
negligence Jackson presented, it held that “Dr. Mansfield’s affidavit [does not]
provide evidence sufficient to prove that [Mayfield was] grossly negligent . . .
Appellant does not explain how Dr. Mansfield’s affidavit provides proof, as it
merely contains a conclusory statement.” Id. at *3. The Court of Appeals then
concluded that “[b]ecause COVID-19 was unquestionably a factor in [Emma’s]
15 medical history the week before her death, Appellees are entitled to the
statutory immunity granted under KRS 39A.275.” Id. It did not address
whether Mayfield was also entitled to immunity under the PREP Act.
Following the Court of Appeals’ ruling, Jackson filed a motion for
discretionary review in this Court, which we granted.
II. ANALYSIS
A. Standard of Review
Kentucky Rule of Civil Procedure (CR) 56.03 allows a trial court to grant
summary judgment in the movant’s favor “if 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.” When
pursuing a dismissal by summary judgment, the burden of proof is on the
movant to show “that the adverse party could not prevail under any
circumstances.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476,
480 (Ky. 1991).
This Court has “repeatedly admonished that [CR 56.03] is to be
cautiously applied[,]” and that “[t]he 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.” Id. Indeed, “[e]ven through a trial court
may believe the party opposing the motion may not succeed at trial, it should
not render summary judgment if there is any issue of material fact.” Id.
“Because summary judgment does not require findings of fact but only an
16 examination of the record to determine whether material issues of fact exist, we
generally review the grant of summary judgment without deference to either
the trial court's assessment of the record or its legal conclusions.” Hammons v.
Hammons, 327 S.W.3d 444, 448 (Ky. 2010) (citing Malone v. Kentucky Farm
Bureau Mut. Ins. Co., 287 S.W.3d 656, 658 (Ky.2009)). Whether a particular
defendant is entitled to immunity is likewise reviewed de novo. Bryant v.
Louisville Metro Hous. Auth., 568 S.W.3d 839, 845 (Ky. 2019).
B. The circuit court erred in granting summary judgment.
1) Immunity Under KRS 39A.275
This Court’s consideration of KRS 39A.275 in this case is a matter of first
impression. 15 The only published Kentucky jurisprudence concerning it is the
Court of Appeals’ opinion in LP Louisville Herr Lane, LLC v. Buckaway, 705
S.W.3d 31 (Ky. App. 2024). 16 In that case, Shirley Wilson underwent back
surgery at a hospital and remained hospitalized for eleven days thereafter;
during her post-operative hospital stay her surgeon never observed any signs of
infection in her surgical wound and it appeared to be healing properly. Id. at
32. Shirley was then discharged to a nursing home on April 28, 2020, and a
follow up telehealth conference with her surgeon was scheduled for May 18.
Id. It was routine for that nursing home to provide post-surgical care, it was
15 While KRS 39A.275 was repealed by the General Assembly’s enactment of
Senate Bill 5 on December 31, 2025, Senate Bill 5 provides that “[a]ny causes of action that are prohibited. . . under this Act will remain so after its repeal.” Jackson, 2023- CA-0260-MR, 2024 WL 1335637 at *2 n.1. 16 This Court denied discretionary review in Buckaway on February 13, 2025,
during the pendency of the appeal now before us.
17 given detailed wound care instructions from the hospital, and it was directed to
contact Shirley’s physician if any concerns about her surgical wound arose. Id.
During the May 18 telehealth conference, the nursing home staff
discovered that Shirley’s surgical wound was infected. Id. The following day,
Shirley was found unresponsive and was immediately transferred to the
hospital where she was diagnosed with a “catastrophic E. coli infection” that
required multiple treatments and surgeries. Id. Shirley and her husband filed
a negligence suit against the nursing home for failing to provide appropriate
wound care and failing to communicate with her physician. Id. The suit was
later revived and amended to include a claim for wrongful death after Shirley
died of congestive heart failure in April 2022. Id. at 33.
The nursing home filed a motion for summary judgment alleging
entitlement to immunity under both KRS 39A.275 and the PREP Act. Id. It
argued that the telehealth conference was a COVID countermeasure to prevent
the spread of the disease, and that the infection “was caused by or resulted
from the COVID-19 restriction that prevented both Shirley’s physician and a
nurse practitioner from examining [her] in person.” Id. at 34. The circuit court
denied the motion, and the nursing home appealed. Id.
A Court of Appeals panel unanimously affirmed the circuit court. Id. It
reasoned that pursuant to the COVID immunity statute, an injury or harm
“arises from COVID-19,” and is therefore a “COVID-19 claim,” when it is
“caused by or [results] from” either “actual, alleged, or possible exposure to,
transmission of, or contraction of COVID-19[,]” “[s]ervices, treatment, or other
18 action performed to limit or prevent the spread of COVID-19[,]” or “[s]ervices
performed by an entity outside the normal course of its business in response to
COVID-19[.]” Id.; KRS 39A.275(1)(a)1., (c). Thus, the Buckaway Court
concluded that “[i]mmunity is not triggered under the statute unless a causal
connection exists between the injury suffered and the action taken by the
care provider.” 705 S.W.3d at 34. The court went on to agree with Shirley’s
estate that
the telehealth conference came too late to be a factor in causing Shirley's injuries. Evidence considered by the trial court indicated that by the time of the telehealth conference, Shirley had already suffered days—if not weeks—of neglect by nursing home staff. The wound infection was described by Shirley's physician as very deep and “clearly caused by failure to keep the wound clean and change the dressing” as ordered. Another doctor confirmed that the wound had probably been infected for several days before the May 18 telehealth conference. Finally, the nursing home's director testified unequivocally that COVID-19 protocols did not prevent staff from caring properly for Shirley's wound.
Id.
While we acknowledge that the facts of Buckaway are distinguishable
from the case at bar, its interpretation of the COVID immunity statute is
sound. The statute does not, as Mayfield argues, apply to any injury occurring
during the declared COVID emergency. Rather, it applies to “any claim or
cause of action for an actor or omission arising from COVID-19[.]” KRS
39A.275(1)(c) (emphasis added). And, in order for a claim to arise from COVID,
the injury must be “caused by or [result] from” the “actual, alleged, or possible
exposure to, transmission of, or contraction of COVID-19[,]” “[s]ervices,
treatment, or other action performed to limit the spread of COVID-19[,]” or
19 “[s]ervices performed. . . outside the normal course of business in response to
COVID-19[.]” KRS 39A.275(1)(a) (emphasis added). Stated differently, Mayfield
cannot prove entitlement to immunity simply by demonstrating that Emma had
COVID at the time of her death. Rather, it must demonstrate that the injuries
Jackson alleged were caused by her contraction of COVID; were caused by
services, treatment, or other actions Mayfield performed to limit the spread of
COVID; or were caused by services Mayfield performed outside the normal
course of business in response to COVID. 17 We now address Mayfield’s
arguments under each of those requirements in turn.
KRS 39A.275(1)(a)1.
As the party bearing the burden of proof, to show entitlement to
summary judgment under KRS 39A.275(1)(a)1. Mayfield had to demonstrate,
viewing the record in a light most favorable to Jackson, “that there is no
genuine issue as to any material fact” regarding whether Emma’s “injury or
harm . . . [was] caused by or [resulted] from. . . [her] contraction of COVID-
19[.]” CR 56.03; Steelvest, 807 S.W.2d at 480.
Preliminarily, while certainly the most serious injury Jackson alleged was
Emma’s death, he also alleged various injuries and misconduct by Mayfield
that appear to have no relation to her contraction of COVID. For example, his
17 Mayfield has cited to the legislative history of the statute to support the
exceedingly broad interpretation for which it advocates. However, under our tenets of statutory construction, “[o]nly if the statute is ambiguous or otherwise frustrates a plain reading, do we resort to extrinsic aids such as the statute's legislative history[.]” Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011). As the statute plainly requires a causal connection on its face, we need not consider its legislative history.
20 complaint asserted that she suffered various injuries such as ongoing neglect
and insufficient medical care that was intentionally concealed by Mayfield’s use
of false charting practices, malnutrition, abuse, and violations of her dignity.
He also asserted that Mayfield engaged in misconduct such as engaging in
fraud, failing to adequately train and supervise its staff, failing to maintain
appropriate staffing levels, and failing to take reasonable steps to prevent,
eliminate, and correct deficiencies in its resident care. Mayfield has not argued
that these alleged injuries have any causal connection to Emma’s contraction
of COVID. They would therefore not fall under KRS 39A.275’s immunity
protections. The circuit court accordingly erred by dismissing them with
prejudice on the basis that Mayfield was entitled to immunity from claims
related to her death.
In other words, even assuming arguendo that Mayfield is entitled to
immunity for some claims related to Emma’s death, it would not be entitled to
immunity for alleged injuries that are unrelated to COVID, or for alleged
misconduct that has no relation to COVID. It would likewise not be immune
for any alleged injuries that occurred prior to March 6, 2020, when the public
health emergency was declared in Kentucky. KRS 39A.275(1)(a)( “‘Arising from
COVID-19’ means an injury or harm that allegedly occurred on or after the
emergency was declared on March 6, 2020[.]” (emphasis added).
Nor has Mayfield argued that it is entitled to immunity for any alleged
injuries other than Emma’s death. It instead focuses its argument entirely on
Emma’s death and, relying on her death certificate, asserts that KRS
21 39A.275(1)(a)1. entitled it to summary judgment against all of Jackson’s claims
because “it is clear from the record that [Emma] contracted COVID-19 which
caused her respiratory failure and death.” 18 We disagree.
To begin, a death certificate does not conclusively establish a decedent’s
cause of death. Rather it is a vital record, KRS 213.011(14), that constitutes
“prima facie evidence of the fact, place, date, and time of death and the identity
of the decedent.” KRS 397.1005(2). Indeed, our statutes contemplate that a
coroner’s initial conclusion about a cause of death may be changed if an
autopsy is later performed. KRS 72.465(2) (“In the event an autopsy is
performed . . . subsequent to the time that a death certificate has been filed . . .
the coroner shall notify the Vital Statistics Branch of any change that may be
necessary in the original certificate.”). Coroner Jones made it clear in his
affidavit that he is not a medical doctor, that he is not qualified to diagnose
medical conditions, and that no autopsy was performed on Emma. In contrast,
Dr. Mansfield testified that based on the information available to him and
Emma’s partially provided medical records, COVID was not a substantial factor
in causing her death.
Moreover, even if Emma’s death certificate could conclusively establish
her cause of her death, the certificate itself did not state that Emma’s sole
18 Mayfield has relied upon Tipton v. St. Joseph Health Sys., Inc., 2021-CA-
0985-MR, 2022 WL 2541827 (Ky. App. July 8, 2022), throughout the duration of this litigation. Tipton is a Court of Appeals opinion that this Court denied discretionary review of and ordered to be depublished on December 7, 2022. It is neither authoritative nor persuasive precedent. The same can be said of Jackson’s reliance on RBRC, Inc. v. Massamore, 2023-CA-0600-MR, 2024 WL 2097553 (Ky. App. May 10, 2024).
22 cause of death was COVID. Rather, it also listed CHF and COPD as her causes
of death, both of which were conditions she had prior to contracting COVID
and are conditions that can cause both respiratory distress and death in the
absence of COVID. While it is certainly possible that COVID was Emma’s
cause of death, it is just as possible—particularly when viewing the record in a
light most favorable to Jackson—that her COVID was asymptomatic and that
her cause of death was actually one of her numerous preexisting conditions,
many of which affect either the heart, the lungs, or both. And therein lies the
rub. Summary judgment is only appropriate if there are no material facts in
dispute, and under KRS 39A.275(1)(a)1. Mayfield must show that Emma’s
injury, i.e., her death, was caused by her contraction of COVID. But based on
the evidence of record there is clearly a material fact in dispute, at the very
least, regarding whether Emma’s death was caused by COVID. We
consequently hold that the circuit court erred by granting summary judgment
to Mayfield under KRS 39A.275(1)(a)1. on the basis that “Emma . . . died, at
least in part, by COVID-19[.]”
We find non-authoritative support for our holding in the Indiana Court of
Appeals opinion of Waggoner v. Anonymous Healthcare Sys., Inc., 250 N.E.3d
1091 (Ind. Ct. App. 2025). In that case, the decedent Elmer Waggoner arrived
at a Kentucky hospital in January 2022 five days after testing positive for
COVID; his symptoms included aches, a deep dry cough, and severe COVID
pneumonitis. Id. at 1094. He was then transferred to a second Kentucky
hospital due to the severity of his condition, which continued to worsen until
23 he was transferred to “Anonymous Hospital 1” in Indiana on January 27, 2022.
Id. His condition had deteriorated so severely that Hospital 1 medically
paralyzed him and placed him on a ventilator due to his respiratory failure and
“pneumonia due to [the] COVID-19 virus.” Id. (quotation marks omitted). On
February 9, Elmer’s treatment team noted the development of a bed sore on his
lower back due to his remaining in a prone position for an extended period of
time. Id. At that time the bed sore contained necrotic tissue but had no overt
signs of infection. Id.
On March 3, Elmer was transferred to “Anonymous Hospital 3” 19 for
further treatment; he remained on a ventilator but tested negative for COVID-
19. Id. at 1095. His pressure wound continued to worsen and showed signs of
infection. Id. On March 17, he was transferred back to Anonymous Hospital 1
while still on a ventilator; he died there on March 29. Id. His death certificate
listed his cause of death as cardiopulmonary arrest caused by acute hypoxic
and hypercapnic respiratory failure, sepsis, and necrotizing fasciitis. Id. at
1095-96.
One year later, the executrix of Elmer’s estate filed a proposed complaint
with the Indiana Department of Insurance alleging that the numerous medical
personnel and hospitals had been negligent in their treatment of his bed sore.
Id. at 1096. A physician then requested the formation of a medical review
19 For clarity, although Waggoner involved an “Anonymous Hospital 2” as a
named party, the opinion itself only discusses an “Anonymous Hospital 1” and an “Anonymous Hospital 3.”
24 panel, but before it could be established some of the defendants filed a motion
for summary judgment with a trial court. Id. The trial court ultimately found,
in relevant part, that the defendants were immune under Indiana’s COVID
immunity statute and granted summary judgment in their favor, thereby
dismissing the executrix’s complaint with prejudice. Id. at 1097.
Like Kentucky, Indiana appellate courts review a grant of summary
judgment by determining whether “the designated evidentiary matter 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[,]” id. (citing Ind. Trial Rule 56(C))
“[drawing] all reasonable inferences in favor of the non-moving party[.]” Id.
(quoting Wilkes v. Celadon Grp., Inc., 177 N.E.3d 786, 789 (Ind. 2021)). But,
unlike Kentucky, “[b]efore a plaintiff may file suit against a health care provider
alleging medical malpractice, the plaintiff must submit a proposed complaint to
a medical review panel and the panel must give its opinion.” Id. (citing I.C. 20 §
34-18-8-4 (1998)). 21
Prior to the panel issuing an opinion, a trial court may perform one or
both of two tasks: determining an affirmative defense or issue of law or fact
that may be preliminarily determined under the Indiana Rules of Procedure or
compelling discovery. Id. (citing I.C. § 34-18-11-1(a)). However, a trial court
20 Indiana Code.
21 Kentucky’s General Assembly previously attempted to establish a similar
practice, but this Court held it to be unconstitutional. See Commonwealth of Kentucky v. Claycomb by and Through Claycomb, 566 S.W.3d 202, 205 (Ky. 2018). Medical malpractice claimants in this Commonwealth must instead comply with the requirements of KRS 411.167.
25 may not preliminarily rule on any affirmative defense or issue of law that is
reserved for written opinion by the panel, including whether “[t]he conduct
complained of was or was not a factor of the resultant damages[,]” i.e.,
causation. Id. at 1097-98. (quoting I.C. § 34-18-11-1(b)).
On appeal, the executrix argued that the trial court erred by finding the
defendants were entitled to immunity because their “immunity [hinged] on an
issue reserved for the medical review panel, specifically causation.” Id. at
1098. She asserted that “Elmer’s pressure wound and his subsequent death
were not caused by COVID-19 or [the defendants’] treatment of his COVID-19
symptoms but by the negligence of some or all the defendants in preventing
and treating the pressure wound.” Id. Thus she argued, and the Indiana
Court of Appeals agreed, that “the question of immunity cannot be decided
until the panel decides the causation issue.” Id. The court reasoned that
Indiana’s COVID immunity statute directs in relevant part:
[T]he following apply to the provision of health care services arising from a state disaster emergency declared under IC 10-14-3-12 to respond to COVID-19:
(1) A person providing health care services or emergency medical services, whether in person or through telemedicine services permitted by IC 25-1-9.5, at a facility or other location where health care services or emergency medical services are provided may not be held civilly liable for an act or omission relating to the provision or delay of health care services or emergency medical services arising from a state disaster emergency declared under IC 10-14-3-12 to respond to COVID-19.
(2) An employer, including an agency that provides or arranges health care services or emergency medical services, of a person described in subdivision (1) may not be held civilly liable for an act or omission relating to the provision or delay of health care
26 services or emergency medical services arising from a state disaster emergency declared under IC 10-14-3-12 to respond to COVID-19.
Id. at 1098-99 (emphasis added) (quoting Ind. Code § 34-30-13.5-1(b) (2021)).
Based on this statutory language, the court held that “[t]he question of whether
all or some of the defendants’ provision of services to Elmer for his pressure
wound ‘arose’ out of the state disaster emergency hinges upon causation, a
matter for the medical review panel to decide.” Id. at 1099 (emphasis added).
The court reasoned that while Elmer was originally hospitalized for COVID, and
that he first developed the bedsore while ventilated to treat his COVID, the
executrix had provided “expert witness evidence that [stated the defendants’]
mistreatment of the bed sore caused Elmer’s death, regardless of his prior
COVID diagnosis and symptoms. Indiana Code section 34-30-13.5-5-1(b) does
not bar [the executrix’s] claims pending the medical review panel’s
determination of causation.” Id.
In the case at bar, while the process of determining Emma’s cause of
death will be different from that utilized in Indiana, the reasoning of the
Waggoner Court is on point: immunity is only available under Kentucky’s
COVID immunity statute if Emma’s death was only “caused by” her contraction
of COVID. And, accordingly, summary judgment was inappropriate while there
remains a material question of fact as to whether her death was actually
“caused by” COVID.
27 KRS 39A.275(1)(a)2.
Mayfield has also failed to demonstrate that it was entitled to summary
judgment under subsection 2. of KRS 39A.275(1)(a). As noted, that provision
required it to demonstrate that Emma’s alleged injuries and death were caused
by services, treatment, or other action performed to limit the spread of COVID.
Mayfield argues this provision is applicable because it was performing such
services and treatments. Yet, apart from the undisputed fact that it had a
dedicated COVID unit, Mayfield has provided no direct proof of any services or
treatments it was providing to limit the spread of COVID, let alone any proof
that Emma’s injuries or death were caused by those services.
Before the circuit court Mayfield introduced generally applicable CMS
memoranda directed to “State Survey Agency Directors” about the protocols all
nursing homes were supposed to be following during the pandemic. But it
introduced no evidence that it was following any of those directives or that
doing so somehow caused Emma’s alleged injuries or death. We likewise fail to
discern how the exhibits it provided of CMS’s “Emergency Declaration Blanket
Waivers for Health Care Providers,” or the Kentucky COVID indicator report
went towards showing its entitlement to summary judgment under KRS
39A.275(1)(a)2. We note that Mayfield refused to produce discovery related to
anything other than the facility’s floor plan and some of Emma’s own medical
records. The Court therefore cannot know how Mayfield applied those CMS
directives in its facility.
28 KRS 39A.275(1)(a)3.
Finally, in order to be entitled to summary judgment under KRS
39A.275(1)(a)3., Mayfield had to demonstrate that there were no issues of
material fact regarding whether Emma’s alleged injuries and death were caused
by services it performed that were outside the normal course of its business in
response to COVID. Similar to its argument under subsection 2. of the statute,
Mayfield asserts in a conclusory manner that because Emma was placed on its
COVID unit, it is entitled to immunity. But, again, it has not explained how
Emma being placed on its COVID unit, or how any other services it may have
provided outside the normal course of its business in response to COVID,
caused Emma’s death or alleged injuries.
To be clear, our holding should not be interpreted to hold that Mayfield
cannot under any circumstances show entitlement to immunity under KRS
39A.275. Rather, we simply hold that that there remain material issues of fact
under the circumstances of this case that make summary judgment improper
at this stage.
2) Gross Negligence
As we have previously discussed, the COVID immunity statute does not
provide immunity to essential service providers for gross negligence. KRS
39A.275(8)(b). The circuit court found in its order granting summary judgment
that Jackson’s “allegations of negligence [did] not rise to the level of ‘gross
negligence’ in [Emma’s] death as a matter of law.” But that is not the inquiry
when addressing a motion for summary judgment. Rather, the question is
29 whether Jackson’s allegations were sufficient to create a material issue of fact
as to whether Mayfield was grossly negligent.
Gross negligence has been defined by this Court as “a ‘wanton or
reckless disregard for the lives, safety, or property of others[,]’” Gibson v. Fuel
Transp., Inc., 410 S.W.3d 56, 59 (Ky.2013) (quoting Saint Joseph Healthcare,
Inc. v. Thomas, 487 S.W.3d 864, 870 (Ky. 2016)). Moreover, “[e]ven where a
single act of negligence might not constitute gross negligence, gross negligence
may result from the several acts.” Horton v. Union Light, Heat & Power Co., 690
S.W.2d 382, 388 (Ky. 1985) (quoting Brown v. Riner, 500 P.2d 524, 528 (Wyo.
1972)).
The usual meaning assigned to. . .“wanton,” or “reckless,” according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences. . . .
Kirschner by Kirschner v. Louisville Gas & Elec. Co., 743 S.W.2d 840, 843 (Ky.
1988) (quoting Prosser & Keeton on the Law of Torts, 5th Ed. (1984), Chapt. 5,
Sec. 34, pp. 212–13)). Black’s Law Dictionary similarly defines “wanton” as
“[u]nreasonably or maliciously risking harm while being utterly indifferent to
the consequences[,]” Wanton, BLACK’S LAW DICTIONARY (12th ed. 2024), and
defines “reckless” as being “[c]haracterized by the creation of a substantial and
unjustifiable risk of harm to others and by a conscious (and sometimes
deliberate) disregard for or indifference to that risk; heedless; rash.” Reckless,
BLACK’S LAW DICTIONARY (12th ed. 2024).
30 The primary allegation Jackson made in support of his assertion that
Mayfield was grossly negligent was its nearly five-hour delay in obtaining
medical intervention for Emma on the day she died. Specifically, he alleged
that Mayfield discovered that its eighty-eight-year-old resident who was unable
care for herself and had a litany of potentially fatal medical issues was
unresponsive, but it failed to take any action at all for her until nearly five
hours later. And those allegations appear to be supported by Emma’s medical
records from Mayfield and Dr. Mansfield’s testimony that, in his opinion,
Mayfield’s inaction was a wanton or reckless disregard for Emma’s life and
safety. While we do not opine herein that this was gross negligence, we do
hold that Jackson has presented enough evidence to create a material issue of
fact as to whether Mayfield’s failure to intervene constituted gross negligence,
and that circuit court consequently erred by granting summary judgment.
Mayfield also argues that Jackson failed to properly preserve his
argument that the circuit court erred by finding that his gross negligence claim
was unsupported and failed to preserve his entitlement to additional discovery.
First, Jackson’s complaint asserted gross negligence, and his response to
Mayfield’s motion for summary judgment argued that “[f]ailing to appropriately
respond to [Emma’s] significant change in condition for five (5) hours is gross
negligence.” Jackson raised an identical argument in his brief before the Court
of Appeals and further asserted that he “[had] alleged, and [had] put forth
expert evidence, that [Mayfield was] grossly negligent for which there is no
31 immunity from suit.” That issue is accordingly properly before this Court for
review.
Second, Jackson filed thorough discovery requests that went largely
unanswered. He then filed a lengthy motion to compel discovery that explained
why he believed each discovery request was appropriate and filed separate
motions to compel the production of emails, audit trails, and Mayfield’s
deposition. Jackson argued in his response to Mayfield’s motion for summary
judgment that Mayfield failed to participate in discovery in good faith and that
the circuit court “should permit [him] to take discovery on the disputed fact
issues, as well as the claims of gross negligence.” Finally, Jackson asserted in
his Court of Appeals brief that the circuit court “erred when it denied [his]
request for discovery.” This issue, too, is accordingly properly before this
Court. Because there are material issues of fact in dispute, and because
discovery in this case has been extremely limited thus far, we further hold that
Jackson is entitled to additional discovery on remand, subject to the
limitations of CR 26.02.
C. The PREP Act
Neither the circuit court nor the Court of Appeals addressed Mayfield’s
entitlement to immunity under the PREP Act. And Mayfield has not provided
briefing on this issue other than its argument that, should this Court find it is
not entitled to immunity under KRS 39A.275, it should remand to the circuit
court to determine whether it is immune under the PREP Act. We therefore
decline to address Mayfield’s argument that it is entitled to immunity under the
32 PREP Act at this time. On remand, the circuit court may address Mayfield’s
immunity argument under the PREP Act if Mayfield chooses to pursue it after
discovery is complete.
III. CONCLUSION
Based on the foregoing, we reverse the Court of Appeals, vacate the
Graves Circuit Court order granting summary judgment, and remand for
further proceedings consistent with this Opinion.
Lambert, C.J.; Bisig, Conley, Keller, Nickell and Thompson, JJ, sitting.
Lambert, C.J.; Conley, Nickell and Thompson, JJ., concur. Keller, J., dissents
by separate opinion which Bisig, J., joins. Goodwine, J., not sitting.
KELLER, J., DISSENTING: Ms. Emma Hayes, age 88 at the time of her
death, was a resident of Mayfield Health and Rehabilitation from February 6,
2018, until her transfer to the hospital on December 3, 2020. She suffered
from a number of ailments as noted in her medical record of December 3,
2020, including, but not limited to, chronic obstructive pulmonary disease
(“COPD”), atrial fibrillation, congestive heart failure, hypertension, diabetes,
dysphagia, anemia, osteoarthritis, gastro-esophageal reflux disease,
diverticulosis, hernia, peripheral vascular disease, cerebral atherosclerosis,
vascular dementia without behavioral disturbance, major depressive disorder,
generalized anxiety disorder, chronic pain syndrome, and COVID-19. Sadly,
Ms. Hayes died on December 3, 2020, and her death certificate as noted by the
coroner listed acute respiratory distress, congestive heart failure, COPD, and
COVID-19 as causes of death.
33 Because I would hold that KRS 39A.275 acts as a bar to Appellant Hollie
Jackson’s 22 (“Jackson”) negligence claims and that the Graves Circuit Court
did not err in finding no gross negligence on summary judgment, I respectfully
dissent.
Standard of Review
“The standard of review on appeal of summary judgment is whether the
trial court correctly found there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law.” Carter v. Smith, 366
S.W.3d 414, 419 (Ky. 2012). Moreover, “[t]he party opposing summary
judgment cannot rely on their own claims or arguments without significant
evidence in order to prevent a summary judgment.” Wymer v. JH Properties,
Inc., 50 S.W.3d 195, 199 (Ky. 2001). “[A] party opposing a properly supported
summary judgment motion cannot defeat it without presenting at least some
affirmative evidence showing that there is a genuine issue of material fact for
trial.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky.
1991).
Immunity under KRS 39A.275
Jackson alleges that summary judgment was inappropriate here because
there is a material dispute in the facts regarding whether Ms. Hayes died from
COVID-19, particularly given that her death certificate lists COVID-19 as a
cause of death, but the affidavit from Dr. Mansfield indicated that COVID-19
22 Hollie Jackson is the son of Emma Hayes.
34 was not a substantial factor in her death. Whether COVID-19 substantially
caused Ms. Hayes’ death is not a distinction with a difference in this instance
given the broad application of the statute. Even if 39A.275(1)(A)(1.) would bar
a claim from proceeding only if it can be proven that COVID-19 caused Ms.
Hayes’ death, 23 at the very least, her claim would be granted immunity under
39A.275(1)(A)(2.).
KRS 39A.275(1)(A)(2.), in conjunction with KRS 39A.275(2) and KRS
39A.275(1)(c), provides immunity from certain claims pertaining to “an injury
or harm . . . caused by or resulting from . . . [s]ervices, treatment, or other
action performed to limit or prevent the spread of COVID-19.” If nothing else is
true, it is certainly true that Jackson’s claims pertain to the alleged negligent
care (service) in a COVID-19 unit (an action performed to limit or prevent the
spread of COVID-19). Ultimately, whether Ms. Hayes died from COVID-19 was
not material to the resolution of Jackson’s claims against Mayfield, and
summary judgment was appropriate.
While it may seem as though this statute, when read literally, grants a
rather broad shield of immunity, this is exactly what the General Assembly
intended. As anyone reading this opinion is likely well aware, COVID-19 was
an unpredicted, unprecedented pandemic that wreaked havoc on the
23 Which, to be clear, KRS 39A.275(1)(A)(1.) should not be construed so
narrowly. On its face, KRS 39A.275(1)(A)(1.) allows for immunity even for “an injury or harm . . . caused by or resulting from . . . the alleged, or possible exposure to, transmission of, or contraction of COVID-19.” (emphasis added). Nonetheless, splicing into KRS 39A.275(1)(A)(1.) and the question of causation is unnecessary where, as here, the answer is even more clear under KRS 39A.275(1)(A)(2.).
35 Commonwealth’s health care facilities. This was a time when existing as a
functioning member of society — whether that be as a business owner, an
administrator, a health care provider, medical staff, or a frail nursing home
resident — carried the significantly increased risk of contracting a life-
threatening illness. Healthcare and other workers were asked to leave the safe
confines of their home and enter a world where a deadly virus lurked ready to
attack in ways not yet fully known or understood. Yet, the alternative —
completely shutting down society — would leave those who needed treatment
for both COVID-related and non-COVID-related illnesses, daily care in nursing
homes, groceries, and emergency response without viable alternatives, even in
life-threatening circumstances. The General Assembly determined that
ordinarily existing allocations of liability should not stand as a barrier to
keeping essential services, including nursing homes, open. See General
Assembly Regular Session, House Chambers, March 30, 2021, Part One at
1:06:41–1:07:25 (https://ket.org/legislature/archives/2021/regular/house-
chambers-part-1-201136) (last visited Oct. 24, 2025) (explaining that the SB 5
was a response to a “cry from many for protections from liability related to the
pandemic, everything from understaffing to unexpected occurrences that could
result in liability that is tied directly to or caused from the contraction of or
transmission of the COVID virus”); General Assembly Regular Session, Senate
Chambers, March 1, 2021, 2:14:54–2:15:01 (https://ket.org/legislature/arch
36 ives/2021/regular/senate-chambers-175526) (last visited Oct. 24, 2025)
(“When you’re deemed essential, that means you are providing a service or a
good to keep your community going.”).
The breadth of this bill was not without criticism in the General
Assembly. The relevant legislative sessions made clear that the General
Assembly was contemplating a bill that would provide protections from liability
for negligent acts by businesses providing essential services during the COVID-
19 pandemic. Senator Stivers warned against “horrific reaching effects,”
including: immunity from liability for truck drivers who, while providing an
essential service like delivering liquor, negligently takes his eyes off the road
and causes a devastating collision, General Assembly Regular Session, Senate
Chambers, March 1, 2021, 1:20:10–1:21:27 (https://ket.org/legislature/
archives/2021/regular/senate-chambers-175526) (last visited Oct. 24, 2025);
immunity from liability for a hospital who negligently kills a mother that is
giving birth, although the death is not otherwise COVID-19 related, id. at
1:21:55–1:22:19; immunity from liability for a mechanic that negligently fixes
the brakes of a car and causes a fatal accident, id. at 1:22:19–1:22:37;
immunity from liability for a grocer selling contaminated foods, id. at 1:22:37–
1:22:40; and immunity from liability for a pharmacist who gives a patient the
wrong pills and kills them, id. at 1:22:40–1:22:45. Senator McGarvey warned
that the bill was so broad that it could cover injuries from slipping and falling
in a grocery store a year after the pandemic is over. Id. at 2:21:37–2:21:46. In
response to concerns that negligently failing to repair a sidewalk or driveway a
37 year after the pandemic has ended would be shielded from liability, Senator
Reginald Thomas stated:
Now the injuries have nothing to do with COVID at that point, the person doesn’t get injured or break down because of COVID, they didn’t contract COVID, . . . they haven’t been harmed by any COVID related activity, but if you follow the senator from Clay’s response, . . . there’s no liability there. Nothing to do with COVID, but because of the way this bill is written, they would have no liability whatsoever.
Id. at 2:10:27–2:10:52. Despite these concerns, but certainly in light of these
concerns, the bill was passed. The General Assembly clearly intended to build
protections around businesses providing essential services during the global
pandemic, even when the harm was not a direct result of the contraction of the
COVID-19 virus but rather a result of society adapting to and responding to the
COVID-19 pandemic.
Considering these examples, the analysis of this matter becomes
straightforward. It is clear that Jackson’s claim involves “an injury or harm . .
. caused by or resulting from . . . [s]ervices, treatment, or other action
performed to limit or prevent the spread of COVID-19.” While receiving care in
a nursing home, Ms. Hayes tested positive for COVID-19. She was then
transferred to a COVID-19 unit in the same nursing home, where she received
specialized monitoring and treatment for COVID-19 and her cornucopia of pre-
existing health conditions. Claims that Mayfield was negligent in providing
care to Ms. Hayes in the COVID-19 unit are clearly covered by KRS 39A.275.
38 Gross Negligence
To assuage fears about the breadth of KRS 39A.275’s sweeping grants of
immunity, the statute does not apply to “any liability of an owner for gross
negligence, or wanton, willful, malicious, or intentional misconduct.” KRS
39A.275(3); See also General Assembly Regular Session, House Chambers,
March 30, 2021, Part One at 1:14:40–1:15:17 (https://ket.org/legislature/
archives/2021/regular/house-chambers-part-1-201136) (last accessed
October 24, 2025) (“The purpose of this bill . . . is to give some protections and
some immunity to businesses including hospitals, but at the same time, there
were some very large concerns in the legal community that this would create
an immunity to prevent claims that were legitimately valid, that were only
secondarily related to COVID-19, so I want to say very clearly that through all
of the sections of this bill, any gross negligence, any willful or intentional
misconduct, is not protected.”). Gross negligence has been defined in our case
law as behaving recklessly or the failure to use slight care. City of Middlesboro
v. Brown, 63 S.W.3d 179, 181 (Ky. 2001).
To this end, the circuit court held a hearing on Mayfield’s motion for
summary judgment, and the court’s order reflects that it was presented with
evidence that Ms. Hayes was diagnosed with COVID-19 on November 26, 2020,
and transferred to Mayfield’s COVID-19 unit on the same day. An x-ray
showed no acute cardiopulmonary disease. Ms. Hayes’ physician ordered
increased monitoring, including checking her pulse oximetry three times a day,
and additional medications. At 8:51 a.m. on December 3, 2020, Ms. Hayes did
39 not receive her medication because she was unable to be aroused. An hour
later, at 9:51 a.m., her vitals indicated that she was not hypoxic. Her oxygen
saturation was 98 percent, her respiratory rate was 18 breaths per minute, and
her temperature was 97.8, all within normal limits. Her blood pressure was
slightly elevated, but she had a history of hypertension. Almost four hours
later, around 1:45 p.m., Ms. Hayes again could not be aroused, but by this
time, her vitals had deteriorated. Her medical records indicate that at that
time, her blood pressure was 160/75, her pulse was 44 beats per minute, her
oxygen saturation was 87%, her respiratory rate was 50 breaths per minute,
her breathing was labored, her temperature was 99.6 degrees, and her upper
extremities and head were twitching or jerking. Her son, Tommy, was notified
of her condition and she was promptly transported to Jackson Purchase
Medical Center via ambulance. Lifesaving measures and treatment were
administered there, including intubation and mechanical ventilation.
Unfortunately, around 3:40 p.m., approximately two hours after Mayfield
noticed Ms. Hayes’ vitals were amiss, Ms. Hayes passed away.
After the hearing on Mayfield’s motion for summary judgment, the circuit
court gave both parties time to submit additional filings before issuing its final
order. The circuit court ultimately found that:
Here, [Jackson] has not shown or alleged willful, malicious, or intentional misconduct. [Jackson]’s Complaint asserts claims of negligence and further assert such acts of negligence constitute “gross negligence” under Count ONE, and further allege under Count TWO that the acts of negligence amount to gross negligence. Plaintiff’s answers to the interrogatories do not set forth evidence of gross negligence. While it is sad 88-year-old Emma Hayes died, the
40 Plaintiff’s allegations of negligence do not rise to the level of “gross negligence” in her death as a matter of law.
In arguing that the circuit court erred in granting summary judgment
and that the record contained enough evidence of gross negligence to survive a
motion for summary judgment, Jackson’s arguments fall into two main
categories: the five-hour delay between Mayfield’s first indication that Ms.
Hayes’ condition had worsened and her eventual transfer to the hospital, and
false charting in Ms. Hayes’ medical records. As for Jackson’s first argument,
he contends that Mayfield’s failure to notify Ms. Hayes’ physician or family or
to send Ms. Hayes to the hospital for five hours after she was unable to be
aroused or take her medication on the morning of December 3, 2020, was
gross negligence. The record does not shed much light on the circumstances
surrounding Ms. Hayes’ inability to be aroused, whether this was normal for
her, whether this was a common or concerning symptom of COVID-19 or any
other illness she had, whether her physician had issued warning signs that
would prompt intervention or what those warning signs were if so, whether the
inability to be aroused was a warning sign in which her physician had asked to
be contacted in the event of, or whether she displayed any other concerning
symptoms.
What is known, however, is that an hour later, Mayfield checked Ms.
Hayes’ vital signs, which were all in the normal range for her. Displaying no
other signs or symptoms (made known to us), Mayfield rechecked her vital
signs within four hours, even though Ms. Hayes was only ordered to have vitals
checked three times a day, which works out to every eight hours. It was not 41 until this second set of vitals were taken that Mayfield had realized multiple
signs that something was amiss. Whatever doubt remains about the
appropriateness of Mayfield’s actions at the time are mitigated by an
understanding that Ms. Hayes’ unfortunate death took place at a time when
hospitals were overfilled, patients were being turned away for treatment, a
person going to the hospital exposed both themselves and those around them
to COVID-19 (for which there was no vaccine available to the general public at
the time) and other exacerbating diseases, and people were advised to stay
home with COVID-19 symptoms unless critically ill. Mayfield utilized their
discretion in determining whether and at what point it was appropriate to seek
outside medical attention for Ms. Hayes, and it is not apparent that Mayfield
was grossly negligent in exercising that discretion.
Jackson next alleges that Mayfield was grossly negligent when it falsely
charted instances in Ms. Hayes’ medical record that it provided services to Ms.
Hayes after Ms. Hayes had died. Assuming arguendo that Mayfield had falsely
charted, Jackson still must show how this false charting caused Ms. Hayes’
alleged injuries. To prove a common law negligence claim, the plaintiff must
present evidence of “legal causation between the defendant’s breach and the
plaintiff’s injury.” Osborne v. Keeney, 399 S.W.3d 1, 17 (Ky. 2012). Jackson’s
theory of liability fails because Jackson failed to demonstrate how the false
charting caused Ms. Hayes’ death, particularly in light of the fact that the false
charting occurred after Ms. Hayes’ death, and Jackson fails to allege with
specificity other instances of false charting before Ms. Hayes had passed.
42 Lastly, even if Jackson had sufficient evidence in the record to survive a
summary judgment motion, he failed to properly preserve this issue before this
Court. Rule of Appellate Procedure (“RAP”) 32(A)(4) requires that Appellant’s
opening brief “contain at the beginning of the argument a statement with
reference to the record showing whether the issue was properly preserved for
review and, if so, in what manner.” “We have strictly mandated compliance
with this rule since its inception under the prior Kentucky Rules of Civil
Procedure.” Gasaway v. Commonwealth, 671 S.W.3d 298, 310 (Ky. 2023).
Jackson failed to include such a statement in his opening brief. Despite this,
Jackson claims that, because he raised both issues regarding allegations of
gross negligence and whether he was permitted to engage in meaningful
discovery with the circuit court and the Court of Appeals, these issues were
properly preserved. Yet, we have said that “[t]he failure of an appellant's brief
to conform to the appellate rules justifies the striking of the brief under RAP
31(H)(1).” Gasaway, 671 S.W.3d at 310. “If a party fails to inform the
appellate court of where in the record his issue is preserved, the appellate
court can treat that issue as unpreserved.” Ford v. Commonwealth, 628
S.W.3d 147, 155 (Ky. 2021). Nevertheless, I need not opine on whether this
Court should give sanctions, including treating the issue as unpreserved, for
Jackson’s failure to comply with RAP 32(A)(4) given that I would nevertheless
affirm the granting of summary judgment.
43 Discovery
Jackson contends that he was wrongfully deprived of adequate discovery
in the circuit court. His arguments are subject to the same failure to properly
preserve under RAP 32(A)(4) and RAP 31(H)(1) as his arguments concerning the
circuit court’s alleged error in finding Jackson’s gross negligence claim was
unsupported. However, I would be inclined to decline sanctions in this
instance. “[T]he critical point in preservation of an issue remains [whether] the
question [was] fairly brought to the attention of the trial court.” MV Transp.,
Inc. v. Allgeier, 433 S.W.3d 324, 331 (Ky. 2014). Before the trial court, Jackson
had filed a motion to compel, included arguments in his response to Mayfield’s
motion for summary judgment that Mayfield did not participate in discovery in
good faith and that the circuit court should allow him to take discovery on
disputed issues, and additionally argued at the hearing on summary judgment
that more discovery was warranted. Before the Court of Appeals, Jackson
argued in his brief that “the Graves County Circuit Court erred when it denied
Plaintiff’s request for discovery.”
Turning to the merits of Jackson’s discovery arguments, Jackson had
filed a motion to compel which had not been explicitly ruled on before the
hearing was held on the motion for summary judgment. Nonetheless, during
the hearing on Mayfield’s motion for summary judgment, the circuit court
heard arguments about the sufficiency of discovery. Mayfield disclosed and
argued that the Complaint was filed in November 2021, but that destruction of
44 the facility from a devastating tornado 24 delayed Mayfield’s discovery responses
until April 28, 2022. At that time, Mayfield produced third party medical
records. Approximately one month later, Jackson made a settlement demand in
which Mayfield responded within three weeks and made an offer. Mayfield then
did not hear from Jackson for over four months. On October 18, 2022, Jackson
rescinded his settlement demand and asked for additional voluminous
discovery but, by that time, Mayfield had already begun working on its motion
for summary judgment, which was filed within the next week. Jackson
contended that after waiting for over a year, refusing to participate in good faith
discovery, moving for dismissal on personal jurisdiction grounds and then later
revoking that motion, and entertaining settlement negotiations for five months,
Mayfield then asserted COVID immunity and requested summary judgment.
Objectively speaking, the Complaint was filed on November 9, 2021.
Mayfield filed an answer on December 3, 2021. Jackson served discovery
requests on December 6, 2021. On April 28, 2022, Mayfield served discovery
responses, including answers and responses by Appellees Mayfield KY Opco,
LLC, Clearview Healthcare Management KY, Crystal Janes, Hughes Ash, and
Susan Allen to Jackson’s first set of interrogatories and requests for production
24 This tornado caused “profound damage, including the near-total destruction
of Mayfield’s downtown historic district. Over 3,778 residences, 183 commercial properties, and 103 other buildings were either damaged or totally destroyed, including the county courthouse and the Mayfield Consumer Products candle factory. Across Graves County, 24 people died, and at least 200 people were injured.” The Violent Tornado Outbreak of December 10-11, 2021, NAT’L WEATHER SERV., https://www.weather.gov/pah/December-10th-11th-2021-Tornado (last visited Nov. 4, 2025).
45 of documents. On the same day, Appellee, The Portopiccolo Group, LLC
(“Portopiccolo”), filed a Motion to Dismiss, alleging in part that Kentucky courts
lacked personal jurisdiction over it. On May 24, 2022, the circuit court ordered
limited discovery on the issue of personal jurisdiction. On June 14, 2022,
Portopiccolo withdrew its Motion to Dismiss. On October 26, 2022, Mayfield
filed a motion for summary judgment. On November 2, 2022, Jackson filed a
motion to compel documents and responses to discovery, arguing that
“Defendants’ general, boilerplate objections are inappropriate and inapplicable
under the Kentucky Rules of Civil Procedure and cannot be used to prevent
proper discovery by Plaintiff.” A hearing was held on Mayfield’s motion for
summary judgment on December 27, 2022. The circuit court ultimately
granted summary judgment in favor of Mayfield, without explicitly ruling on
Jackson’s motion to compel but having heard arguments to that effect, on
February 15, 2023.
We review a trial court’s orders with respect to discovery for an abuse of
discretion. B. Dahlenburg Bonar, P.S.C. v. Waite, Schneider, Bayless & Chesley
Co., L.P.A., 373 S.W.3d 419, 424 (Ky. 2012). “The trial court's determination
that a sufficient amount of time has passed and that it can properly take up
the summary judgment motion for a ruling is reviewed for an abuse of
discretion.” Blankenship v. Collier, 302 S.W.3d 665, 668 (Ky. 2010). “[S]o long
as a party responding to such a motion has had an adequate opportunity to
conduct discovery beforehand, the circuit court does not abuse its discretion in
46 granting such a motion.” Eagle Furniture Mfrs., LLC v. Nautilus Ins. Co., 706
S.W.3d 780, 789 (Ky. App. 2025).
Here, Jackson had over a year from the time his lawsuit was filed to
conduct discovery before the circuit court granted summary judgment.
Jackson had from April 28, 2022, to contest the sufficiency of Appellees’
discovery responses. However, it was not until almost six months later, and
after Mayfield’s motion for summary judgment had been filed, that Jackson
filed a motion to compel. Jackson surely had adequate opportunity to engage
in discovery; he need not wait until the eleventh hour, on the eve of a summary
judgment hearing, to assert his right to discovery. It is also unclear how
additional discovery would have changed the outcome. The major factual
debate is in whether Ms. Hayes died from the COVID-19 virus, but as already
discussed, that is not dispositive of Jackson’s claims. Therefore, I would not
find that the trial court abused its discretion in failing to grant Jackson’s
motion to compel or additional time for discovery.
Other Claims
In his original complaint, Jackson raised counts of negligence, medical
negligence, violations of long-term care resident’s rights, common law fraud,
breach of fiduciary duty, negligence of administrators, and negligence of a
registered nurse. The circuit court found that “every claim alleged by Plaintiff
is barred by KRS 39A.275.” To the extent that Ms. Hayes allegedly received
negligent care from Mayfield, these claims are shielded by KRS 39A.275. To
the extent that Jackson’s other claims, such as violations of long-term care
47 residents’ rights, common law fraud, and breach of fiduciary duties, concern
acts or omissions which predate KRS 39A.275’s protections, these claims were
not preserved for our review to the trial court or to this Court. 25
“A court or quasi-judicial body may not be found to be in error where it
has not been given an opportunity to (1) rule on the issue or (2) correct any
alleged error.” Gasaway v. Commonwealth, 671 S.W.3d 298, 312 (Ky. 2023)
(quoting Personnel Bd. v. Heck, 725 S.W.2d 13, 18 (Ky. App. 1986)). “[W]hile
the form of the objection does not control, the fact that an issue was made
known to the trial court is paramount.” Id. at 313. “The critical inquiry is
whether . . . the trial court [had] a fair opportunity to ‘get it right.’” Sand Hill
Energy, Inc. v. Smith, 142 S.W.3d 153, 165 (Ky. 2004).
While KRS 39A.275 might not be quite broad enough to encompass
Jackson’s non-negligence claims, 26 Jackson failed to bring this to the attention
of the circuit court, ask the circuit court for reconsideration, or otherwise
present the circuit court the opportunity to address these issues. Indeed, in its
Response to [Mayfield’s] Motion for Summary Judgment submitted to the
25 Although not raised as an issue before us, a thorough review of the circuit
court’s order granting summary judgment in favor of Mayfield necessitated a review of the appropriateness of the circuit court’s dismissal of all claims as barred by KRS 39A.275. 26 Jackson’s complaint also alleges abuse, failure to appropriately train,
educate, or supervise nurses aids, “concealing or failing to disclose the material facts that there was an epidemic of patient harm,” “utilizing insufficient numbers of qualified nurse aides who were not adequately trained,” failure to comply with licensing requirements and standards of care specified by law, concealing fraudulent conduct by manipulating and/or falsifying medical records, accepting payment for services and care not provided to Emma Hayes, and concealment of abuse and neglect occurring before March 6, 2020.
48 circuit court, Jackson states that “Ms. Hayes’ injuries and death were caused
by [Mayfield’s] neglect over the last weeks and days of her life and their failure
to timely and appropriately provide care to Ms. Hayes after she exhibited a
change in condition.” Jackson has not alleged otherwise to this Court, nor
could he. “[W]e have often observed that we will confine ourselves to those
errors pointed out in the briefs and will not search the record for errors on
which to reverse a judgment.” Ballard v. King, 373 S.W.2d 591, 593 (Ky. 1963).
Accordingly, the circuit court’s grant of summary judgment to Mayfield was
appropriate. Therefore, I would affirm the Court of Appeals.
Bisig, J., joins.
COUNSEL FOR APPELLANT:
Jacques G. Balette Juliette B. Symons Marks, Balette, Young & Moss, PLLC
Henry David Hill Law Office of David Hill
COUNSEL FOR APPELLEES:
Shem D. Beard A. Pete Pullen O’Bryan, Brown, & Toner PLLC
COUNSEL FOR AMICUS CURIAE, KENTUCKY HOPSITAL ASSOCIATION:
Wesley R. Butler Barnett Benvenuti & Butler PLLC
Related
Cite This Page — Counsel Stack
Hollie Jackson, as Administrator of the Estate of Emma Hayes, and on Behalf of the Wrongful Death Beneficiaries of Emma Hayes v. Mayfield Ky Opco, LLC D/B/A Mayfield Health and Rehabilitation, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hollie-jackson-as-administrator-of-the-estate-of-emma-hayes-and-on-behalf-ky-2025.