RENDERED: FEBRUARY 6, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0056-MR
JENNIFER COMBS APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 17-CI-04008
BLUEGRASS PLASTIC AND RECONSTRUCTIVE SURGERY P.S.C.; DOROTHY CLARK, M.D.; AND LISA COMBS, RN APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.
KAREM, JUDGE: Jennifer Combs (“Combs”) appeals from the Fayette Circuit
Court’s grant of summary judgment in favor of the above-named appellees based
on Combs having filed her complaint outside of the one (1) year statute of
limitations period for medical malpractice claims. Finding no error, we affirm. FACTUAL AND PROCEDURAL BACKGROUND
On October 1, 2013, Combs underwent a breast reduction,
liposuction, and abdominoplasty with Dr. Dorothy Clark at Bluegrass Plastic and
Reconstructive Surgery P.S.C. (“Bluegrass”). During the surgery, Dr. Clark placed
four Jackson-Pratt drains in Combs’ breasts and abdomen to ensure proper
drainage of fluid. A Jackson-Pratt drain is a long, cylindrical tube made from
surgical silicone material. Medical personnel place one end of the tubing inside
the body, and the other end remains outside of the body.
On October 7, 2013, Bluegrass medical staff removed three of the
four Jackson-Pratt drains placed during surgery. The fourth drain, which was in
Combs’ abdomen, continued to drain larger amounts of fluid. Thus, Dr. Clark
wanted the drain to stay in place until the fluid output decreased. Dr. Clark’s post-
operative notes from October 14, 2013, stated “[Combs] is a registered nurse and
inquired about the possibility of taking [the remaining drain] out herself. I told her
I did not have a problem with that but that she needed to have less than 30 mL per
day for two consecutive days prior to removing it.”
Combs testified that on Saturday, October 26, 2013, the output from
the drain was below the threshold necessary for removal, and the suture holding
the drain appeared to have broken. Thus, Combs decided to remove the remaining
drain herself. As she started removing the tube, she met resistance, experienced
-2- pain, and became nauseous. At that point, Combs stopped her attempt to remove
the drain and called her mother-in-law, appellee Lisa Combs, who was also a
registered nurse (“Nurse Combs”). Nurse Combs also met resistance when trying
to remove the drain. After speaking with Dr. Clark, Nurse Combs was ultimately
successful in removing the fourth drain, which she preserved in the freezer.
Combs attended her previously scheduled post-op appointment with
Dr. Clark on Monday, October 28, 2013, and reported Nurse Combs’ removal of
the drain. Combs also brought the part of the drain she had removed to that
appointment because the appearance of the tube’s end concerned her due to its
jagged edge. Dr. Clark assured her that she had to cut the tubes to size in the
operating room and explained that she had folded the tube in half and had sliced
across it with a scalpel, thus creating the jagged edge. Dr. Clark declined to order
an X-ray or CT scan to confirm that no tubing remained in Combs’ body.
Approximately three (3) years later, on October 13, 2016, Combs
presented to Georgetown Community Hospital’s emergency department
(“Georgetown ED”) with complaints of vomiting, low back pain, and urinary
urgency. The Georgetown ED medical staff performed a CT scan of Combs’
abdomen and pelvis, which showed two separate surgical drains in the
subcutaneous tissues of her abdominal wall. Based upon the medical records, the
Georgetown ED providers concluded the drains were from Combs’ 2013
-3- abdominoplasty. Medical records indicate that the Georgetown ED providers
discussed this conclusion with both Combs and Dr. Clark on October 13, 2016.
Moreover, Combs’ answers to Dr. Clark’s interrogatories reflect that on October
13, 2016, Combs became aware that the emergency physician attributed the drains
seen in the imaging to her 2013 abdominoplasty with Dr. Clark. Moreover, at her
deposition, Combs testified that the Georgetown ED providers informed her about
the drains found on the CT imaging and asked her about any previous abdominal
surgeries.
After telling them about her 2013 abdominal surgery with Dr. Clark,
the Georgetown ED providers called Dr. Clark. Following the call and Dr. Clark’s
recommended course of action, Georgetown ED providers recommended that
Combs not speak with Dr. Clark or return to her office for outpatient removal of
the drains. Specifically, Combs testified that Dr. Dietz, a Georgetown ED
provider, believed Combs “shouldn’t receive care in – in this situation when like a
mistake had been made.” Further, Combs testified:
Q. . . . So did Dr. Dietz tell you that she thought a mistake had been made?
A. Oh, yeah. They were freaking out the way – I mean, it’s a huge mistake. She wanted to know how this happened.
Combs did not see or speak to Dr. Clark after October 13, 2016, and underwent
surgery on April 7, 2017, with a different doctor to remove the tubing.
-4- Combs filed a complaint with the then-active Medical Review Panel
on October 20, 2017. Thereafter, on November 9, 2017, Combs filed the
underlying action in Fayette Circuit Court alleging medical malpractice against
Bluegrass, Dr. Clark, and Nurse Combs. The circuit court stayed the action
because of the pending Medical Review Panel action.
On September 3, 2019, following the determination that the statutes
creating and implementing the Medical Review Panel violated Section 14 of the
Kentucky Constitution, the circuit court revived the action. The appellees filed an
answer on August 30, 2019, and specifically listed statute of limitations as an
affirmative defense.
Subsequently, the circuit court placed the underlying action on the
show cause docket on January 22, 2021, due to a lack of prosecution for more than
one year. On February 11, 2021, the circuit court ordered that the case remain on
the docket. However, Combs took no steps to advance the case. And again, on
January 9, 2023, the circuit court placed the case on the show cause docket for
failure to prosecute. Thereafter, and for the first time since filing the complaint,
Combs initiated written discovery and was deposed on January 31, 2024. As a
result of Combs’ testimony confirming her verified interrogatory answers, the
appellees moved for summary judgment based on the statute of limitations, which
the Fayette Circuit Court granted. This appeal followed.
-5- We will discuss further facts as they become relevant.
ANALYSIS
1. Standard of Review
A court may only grant a motion for summary judgment where “there
is no genuine issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.” Kentucky Rule of Civil Procedure (“CR”) 56.03.
Summary judgment is only proper where “it appears impossible that the
nonmoving party will be able to produce evidence at trial warranting a judgment in
his favor.” Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (citations
omitted). At the summary judgment stage, “[t]he record must be viewed in a light
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: FEBRUARY 6, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0056-MR
JENNIFER COMBS APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 17-CI-04008
BLUEGRASS PLASTIC AND RECONSTRUCTIVE SURGERY P.S.C.; DOROTHY CLARK, M.D.; AND LISA COMBS, RN APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.
KAREM, JUDGE: Jennifer Combs (“Combs”) appeals from the Fayette Circuit
Court’s grant of summary judgment in favor of the above-named appellees based
on Combs having filed her complaint outside of the one (1) year statute of
limitations period for medical malpractice claims. Finding no error, we affirm. FACTUAL AND PROCEDURAL BACKGROUND
On October 1, 2013, Combs underwent a breast reduction,
liposuction, and abdominoplasty with Dr. Dorothy Clark at Bluegrass Plastic and
Reconstructive Surgery P.S.C. (“Bluegrass”). During the surgery, Dr. Clark placed
four Jackson-Pratt drains in Combs’ breasts and abdomen to ensure proper
drainage of fluid. A Jackson-Pratt drain is a long, cylindrical tube made from
surgical silicone material. Medical personnel place one end of the tubing inside
the body, and the other end remains outside of the body.
On October 7, 2013, Bluegrass medical staff removed three of the
four Jackson-Pratt drains placed during surgery. The fourth drain, which was in
Combs’ abdomen, continued to drain larger amounts of fluid. Thus, Dr. Clark
wanted the drain to stay in place until the fluid output decreased. Dr. Clark’s post-
operative notes from October 14, 2013, stated “[Combs] is a registered nurse and
inquired about the possibility of taking [the remaining drain] out herself. I told her
I did not have a problem with that but that she needed to have less than 30 mL per
day for two consecutive days prior to removing it.”
Combs testified that on Saturday, October 26, 2013, the output from
the drain was below the threshold necessary for removal, and the suture holding
the drain appeared to have broken. Thus, Combs decided to remove the remaining
drain herself. As she started removing the tube, she met resistance, experienced
-2- pain, and became nauseous. At that point, Combs stopped her attempt to remove
the drain and called her mother-in-law, appellee Lisa Combs, who was also a
registered nurse (“Nurse Combs”). Nurse Combs also met resistance when trying
to remove the drain. After speaking with Dr. Clark, Nurse Combs was ultimately
successful in removing the fourth drain, which she preserved in the freezer.
Combs attended her previously scheduled post-op appointment with
Dr. Clark on Monday, October 28, 2013, and reported Nurse Combs’ removal of
the drain. Combs also brought the part of the drain she had removed to that
appointment because the appearance of the tube’s end concerned her due to its
jagged edge. Dr. Clark assured her that she had to cut the tubes to size in the
operating room and explained that she had folded the tube in half and had sliced
across it with a scalpel, thus creating the jagged edge. Dr. Clark declined to order
an X-ray or CT scan to confirm that no tubing remained in Combs’ body.
Approximately three (3) years later, on October 13, 2016, Combs
presented to Georgetown Community Hospital’s emergency department
(“Georgetown ED”) with complaints of vomiting, low back pain, and urinary
urgency. The Georgetown ED medical staff performed a CT scan of Combs’
abdomen and pelvis, which showed two separate surgical drains in the
subcutaneous tissues of her abdominal wall. Based upon the medical records, the
Georgetown ED providers concluded the drains were from Combs’ 2013
-3- abdominoplasty. Medical records indicate that the Georgetown ED providers
discussed this conclusion with both Combs and Dr. Clark on October 13, 2016.
Moreover, Combs’ answers to Dr. Clark’s interrogatories reflect that on October
13, 2016, Combs became aware that the emergency physician attributed the drains
seen in the imaging to her 2013 abdominoplasty with Dr. Clark. Moreover, at her
deposition, Combs testified that the Georgetown ED providers informed her about
the drains found on the CT imaging and asked her about any previous abdominal
surgeries.
After telling them about her 2013 abdominal surgery with Dr. Clark,
the Georgetown ED providers called Dr. Clark. Following the call and Dr. Clark’s
recommended course of action, Georgetown ED providers recommended that
Combs not speak with Dr. Clark or return to her office for outpatient removal of
the drains. Specifically, Combs testified that Dr. Dietz, a Georgetown ED
provider, believed Combs “shouldn’t receive care in – in this situation when like a
mistake had been made.” Further, Combs testified:
Q. . . . So did Dr. Dietz tell you that she thought a mistake had been made?
A. Oh, yeah. They were freaking out the way – I mean, it’s a huge mistake. She wanted to know how this happened.
Combs did not see or speak to Dr. Clark after October 13, 2016, and underwent
surgery on April 7, 2017, with a different doctor to remove the tubing.
-4- Combs filed a complaint with the then-active Medical Review Panel
on October 20, 2017. Thereafter, on November 9, 2017, Combs filed the
underlying action in Fayette Circuit Court alleging medical malpractice against
Bluegrass, Dr. Clark, and Nurse Combs. The circuit court stayed the action
because of the pending Medical Review Panel action.
On September 3, 2019, following the determination that the statutes
creating and implementing the Medical Review Panel violated Section 14 of the
Kentucky Constitution, the circuit court revived the action. The appellees filed an
answer on August 30, 2019, and specifically listed statute of limitations as an
affirmative defense.
Subsequently, the circuit court placed the underlying action on the
show cause docket on January 22, 2021, due to a lack of prosecution for more than
one year. On February 11, 2021, the circuit court ordered that the case remain on
the docket. However, Combs took no steps to advance the case. And again, on
January 9, 2023, the circuit court placed the case on the show cause docket for
failure to prosecute. Thereafter, and for the first time since filing the complaint,
Combs initiated written discovery and was deposed on January 31, 2024. As a
result of Combs’ testimony confirming her verified interrogatory answers, the
appellees moved for summary judgment based on the statute of limitations, which
the Fayette Circuit Court granted. This appeal followed.
-5- We will discuss further facts as they become relevant.
ANALYSIS
1. Standard of Review
A court may only grant a motion for summary judgment where “there
is no genuine issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.” Kentucky Rule of Civil Procedure (“CR”) 56.03.
Summary judgment is only proper where “it appears impossible that the
nonmoving party will be able to produce evidence at trial warranting a judgment in
his favor.” Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (citations
omitted). At the summary judgment stage, “[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.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc.,
807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). “We review de novo the trial
court’s grant or denial of a motion for summary judgment.” Sneed v. Univ. of
Louisville Hosp., 600 S.W.3d 221, 225–26 (Ky. 2020) (citation omitted).
2. Discussion
Under Kentucky Revised Statute (“KRS”) 413.140(1)(e), any action
against a physician alleging negligence or malpractice “shall be commenced within
one (1) year after the cause of action accrued[.]” (Emphasis added.) Further, “the
cause of action shall be deemed to accrue at the time the injury is first discovered
-6- or in the exercise of reasonable care should have been discovered[.]” KRS
413.140(2). The Kentucky Supreme Court has further noted that “[t]his rule
entails knowledge that a plaintiff has a basis for a claim before the statute of
limitations begins to run. The knowledge necessary to trigger the statute is two-
pronged; one must know: (1) he has been wronged; and, (2) by whom the wrong
has been committed.” Wiseman v. Alliant Hosps., Inc., 37 S.W.3d 709, 712 (Ky.
2000) (citations omitted).
In Vannoy v. Milum, a panel of this Court explained that knowledge of
one’s injury is not determined by whether the plaintiff knows her claim is
actionable. 171 S.W.3d 745, 748–49 (Ky. App. 2005). Thus, when the plaintiff in
Vannoy was informed by other physicians that his injury was attributable at least in
part to his doctor’s antibiotic treatment, that knowledge was sufficient to start the
statute of limitations period even though the plaintiff did not know that the doctor’s
specific act of negligence was a failure to prescribe the right dosage and properly
monitor the plaintiff. Id. at 750.
Similarly, the Kentucky Supreme Court in Sneed v. University of
Louisville Hospital reiterated the precedent that the statute begins to run on the
date the injury is – or should have been – discovered. Sneed, 600 S.W.3d at 226.
In Sneed, this knowledge came from a conversation between Sneed and a
subsequent medical provider who informed her that she sustained a rectovaginal
-7- fistula as a result of the repair of a fourth-degree vaginal laceration. Id. at 224–
225. Multiple providers informed Sneed they were critical of the care she had
received that led to the fistula. Id. The Sneed Court held that Sneed possessed all
the knowledge needed to file a claim. Id. at 230.
In this case, as in Vannoy, it is clear that Combs “had in [her] hands
all relevant facts” necessary to constitute knowledge of her injury on October 13,
2016, which was the date that the emergency room medical staff performed a CT
scan of her abdomen and pelvis. 171 S.W.3d at 749. Much like in Sneed, Combs
gained knowledge of her alleged injury from subsequent medical providers. She
was informed by Georgetown ED medical staff on October 13, 2016, that CT
imaging revealed drains retained in her abdomen. Moreover, she reported that her
only abdominal surgery was in 2013 with Dr. Clark. As a result, the emergency
department providers, together with Combs, called Dr. Clark to discuss the
findings.
Further, Combs’ verified interrogatory answers and deposition
testimony confirm that she spoke with Dr. Clark and separately with Dr. Dietz
regarding the possible removal of the drains. The medical records, as well as
Combs’ interrogatories and deposition testimony, confirm discovery of the drains
was discussed with Combs at least twice while she was at the emergency
department. Specifically, Combs testified that Dr. Dietz recommended she not
-8- contact Dr. Clark anymore because Dr. Dietz did not agree with Dr. Clark’s
planned removal, and Combs “shouldn’t receive care in – in this situation when
like a mistake had been made.” Further, Combs testified:
Q. . . . So did Dr. Dietz tell you that she thought a mistake had been made?
A. Oh, yeah. They were freaking out the way – I mean, it’s a huge mistake. She wanted to know how this happened.
At this point, Combs had knowledge of her alleged injury as of October 13, 2016,
through CT imaging, conversations with multiple medical providers, and by
process of elimination as to the source of the retained drains.
We further note that the Medical Review Panel Act did not toll the
statute of limitations in this case.1 In this case, Combs did not file her Medical
Review Panel complaint until October 20, 2017, which – as discussed above – was
untimely. Since the filing of her Medical Review Panel complaint was untimely,
Combs cannot avail herself of any of the tolling provisions contained therein.
Finally, in her reply brief, Combs argues that the circuit court erred
when it declined to allow her to amend her complaint to allege additional claims.
An abuse of discretion standard of review applies to trial court rulings on whether
1 The Kentucky Supreme Court found the entirety of this chapter to be unconstitutional in 2018 by Commonwealth v. Claycomb By and Through Claycomb, 566 S.W.3d 202, 218 (Ky. 2018).
-9- to grant leave to amend pursuant to CR 15.01. Laneve v. Standard Oil Co., 479
S.W.2d 6, 9 (Ky. 1972).
In this case, Combs has provided us with no concrete reasons as to
why the trial court’s decision was “arbitrary, unreasonable, unfair, or unsupported
by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.
1999) (citations omitted). The circuit court removed the stay on this action on
September 3, 2019, following the determination that the statutes creating and
implementing the Medical Review Panel violated Section 14 of the Kentucky
Constitution. Thereafter, on both January 22, 2021, and January 9, 2023, the
circuit court placed the action on the show cause docket due to Combs’ failure to
move the case forward for more than one year. Even after the court allowed the
case to proceed, Combs was not deposed until January 31, 2024, over four years
after the circuit court lifted the stay. On this record, we cannot conclude that the
circuit court clearly erred by denying Combs’ motion for leave to amend her
complaint.
CONCLUSION
For the foregoing reasons, we AFFIRM the Fayette Circuit Court.
ALL CONCUR.
-10- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
William D. Nefzger Clayton L. Robinson Louisville, Kentucky Courtney L. Soltis Lexington, Kentucky
-11-