RENDERED: AUGUST 9, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0935-MR
JUDY F. SMITH APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT v. HONORABLE BRIAN CHRISTOPHER MCCLOUD, JUDGE ACTION NO. 20-CI-00443
KURT F. JAENICKE, M.D. APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, A. JONES, AND KAREM, JUDGES.
KAREM, JUDGE: Judy F. Smith (“Smith”) appeals the Greenup Circuit Court’s
order granting summary judgment in favor of Dr. Kurt F. Jaenicke (“Dr. Jaenicke”)
in a medical malpractice case. The circuit court determined that Smith had failed
to present expert testimony supporting her allegation that she suffered an injury
caused by negligence on the part of Dr. Jaenicke. Finding no error, we affirm. FACTUAL AND PROCEDURAL BACKGROUND
On December 3, 2019, Dr. Jaenicke performed surgery on Smith to
repair a pelvic organ prolapse. During the procedure, Dr. Jaenicke discovered one
or more “large[,] prolapsed hemorrhoid[s]” and performed a hemorrhoidectomy for
their removal.
Thereafter, on November 10, 2020, Smith filed a complaint in the
circuit court. In her complaint, Smith alleged that Dr. Jaenicke owed her a duty to
obtain her informed consent before performing the hemorrhoidectomy.1 She
further alleged that “as the direct and proximate result of the unauthorized and
negligently performed hemorrhoidectomy and/or anal surgery, [Smith] sustained
anal stenosis, scarring and was otherwise seriously and permanently injured and
damaged.” Finally, Smith further contended that she had incurred and would incur
medical expenses, lost wages, and earning capacity in the future, and had suffered
extreme pain, suffering, and mental anguish.
The litigation in this matter proceeded, and on May 15, 2023 – after
the period for naming expert witnesses had passed – Dr. Jaenicke filed a motion for
summary judgment on the basis that none of Smith’s identified experts would offer
1 In its order, the circuit court did not discuss or rule on informed consent as it related to any breach of the standard of care in this case. Further, Smith specifically indicates in her brief that the appeal “centers solely on the proof of causation[,] i.e., whether medical expert testimony is needed to establish that the hemorrhoidectomy caused injury to [Smith].”
-2- testimony supporting her claims that the hemorrhoidectomy caused her alleged
injuries at issue in the case.
Smith opposed the motion for summary judgment, contending that Dr.
Jaenicke had testified at his deposition that hemorrhoidectomies are painful and
hurt. Smith further argued that another of her treating physicians, Dr. Jon
Hourigan, had testified and documented that he performed a surgical evaluation
and that Smith had sustained a condition similar to anal stenosis with anal scarring
secondary to the hemorrhoidectomy. As a result, Smith contended that the circuit
court should not grant summary judgment.
On July 14, 2023, the circuit court granted summary judgment to Dr.
Jaenicke, finding that Smith failed to present expert testimony supporting her
allegations that she suffered any injury caused by Dr. Jaenicke’s negligence. Thus,
no genuine issue of material fact existed regarding two essential elements of
Smith’s negligence claim; causation and damages. This appeal followed.
We will discuss further facts as they become relevant.
ANALYSIS
1. Standard of Review
Kentucky Rule of Civil Procedure (“CR”) 56.03 authorizes a motion
for summary judgment “if the pleadings, depositions, answers to interrogatories,
stipulations, and admissions on file, together with the affidavits, if any, show that
-3- 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.” A court must view the record “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 Service Center,
Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). “If the litigants are
given an opportunity to present evidence which reveals the existence of disputed
material facts and upon the trial court’s determination that there are no such
disputed facts, summary judgment is appropriate.” Ross v. Powell, 206 S.W.3d
327, 330 (Ky. 2006). Further, “[w]hether summary judgment is appropriate is a
legal question involving no factual findings, so the trial court’s grant of summary
judgment is reviewed de novo.” McKinley v. Circle K, 435 S.W.3d 77, 79 (Ky.
App. 2014) (citation omitted).
2. Discussion
On appeal, Smith first argues that she did not need expert testimony to
prove the hemorrhoidectomy caused her injuries. Specifically, she claims it is
within the “common knowledge and experience of laymen . . . to recognize and
infer that Dr. Jaenicke caused bodily harm by cauterizing Judy Smith’s flesh and
making surgical cuts to her body[.]”
As a starting point for our analysis of Smith’s claims, “[i]t is
elementary for all tort cases that the plaintiff must establish a duty, breach thereof,
-4- causation, and injury.” Saint Elizabeth Medical Center, Inc. v. Arnsperger, 686
S.W.3d 132, 138 (Ky. 2024). Moreover, as discussed by a panel of this Court, “[i]t
is well established that in a medical malpractice case, the burden of proof is upon
the plaintiff to establish the negligence of a physician by medical or expert
testimony.” Nalley v. Banis, 240 S.W.3d 658, 660-61 (Ky. App. 2007) (citation
omitted). Indeed, expert testimony is “essential” in establishing a defendant
deviated from the standard of care and caused some injury to the plaintiff.
Blankenship v. Collier, 302 S.W.3d 665, 671 (Ky. 2010).
In some situations, Kentucky courts have recognized an exception to
the preceding requirement and have permitted the inference of negligence even in
the absence of expert testimony. Arnsperger, 686 S.W.3d at 138. In Arnsperger,
the Kentucky Supreme Court noted:
That a medical malpractice case may, in certain circumstances, proceed to trial without expert medical testimony when duty, breach, causation, and injury are readily apparent within the common knowledge of a jury has been frequently described as the “layman’s exception” in this case, but that term is a bit of a misnomer. The “layman’s exception” is in fact nothing other than the application of res ipsa loquitur – the thing speaks for itself.
Id. (citations omitted).
In this case, Dr. Jaenicke argues that Smith did not preserve her res
ipsa loquitur argument on appeal because she never raised it in a timely manner
-5- before the circuit court. Moreover, “[i]t is axiomatic that a party may not raise an
issue for the first time on appeal.” Sunrise Children’s Services, Inc. v. Kentucky
Unemployment Insurance Commission, 515 S.W.3d 186, 192 (Ky. App. 2016)
(citations omitted).
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RENDERED: AUGUST 9, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0935-MR
JUDY F. SMITH APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT v. HONORABLE BRIAN CHRISTOPHER MCCLOUD, JUDGE ACTION NO. 20-CI-00443
KURT F. JAENICKE, M.D. APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, A. JONES, AND KAREM, JUDGES.
KAREM, JUDGE: Judy F. Smith (“Smith”) appeals the Greenup Circuit Court’s
order granting summary judgment in favor of Dr. Kurt F. Jaenicke (“Dr. Jaenicke”)
in a medical malpractice case. The circuit court determined that Smith had failed
to present expert testimony supporting her allegation that she suffered an injury
caused by negligence on the part of Dr. Jaenicke. Finding no error, we affirm. FACTUAL AND PROCEDURAL BACKGROUND
On December 3, 2019, Dr. Jaenicke performed surgery on Smith to
repair a pelvic organ prolapse. During the procedure, Dr. Jaenicke discovered one
or more “large[,] prolapsed hemorrhoid[s]” and performed a hemorrhoidectomy for
their removal.
Thereafter, on November 10, 2020, Smith filed a complaint in the
circuit court. In her complaint, Smith alleged that Dr. Jaenicke owed her a duty to
obtain her informed consent before performing the hemorrhoidectomy.1 She
further alleged that “as the direct and proximate result of the unauthorized and
negligently performed hemorrhoidectomy and/or anal surgery, [Smith] sustained
anal stenosis, scarring and was otherwise seriously and permanently injured and
damaged.” Finally, Smith further contended that she had incurred and would incur
medical expenses, lost wages, and earning capacity in the future, and had suffered
extreme pain, suffering, and mental anguish.
The litigation in this matter proceeded, and on May 15, 2023 – after
the period for naming expert witnesses had passed – Dr. Jaenicke filed a motion for
summary judgment on the basis that none of Smith’s identified experts would offer
1 In its order, the circuit court did not discuss or rule on informed consent as it related to any breach of the standard of care in this case. Further, Smith specifically indicates in her brief that the appeal “centers solely on the proof of causation[,] i.e., whether medical expert testimony is needed to establish that the hemorrhoidectomy caused injury to [Smith].”
-2- testimony supporting her claims that the hemorrhoidectomy caused her alleged
injuries at issue in the case.
Smith opposed the motion for summary judgment, contending that Dr.
Jaenicke had testified at his deposition that hemorrhoidectomies are painful and
hurt. Smith further argued that another of her treating physicians, Dr. Jon
Hourigan, had testified and documented that he performed a surgical evaluation
and that Smith had sustained a condition similar to anal stenosis with anal scarring
secondary to the hemorrhoidectomy. As a result, Smith contended that the circuit
court should not grant summary judgment.
On July 14, 2023, the circuit court granted summary judgment to Dr.
Jaenicke, finding that Smith failed to present expert testimony supporting her
allegations that she suffered any injury caused by Dr. Jaenicke’s negligence. Thus,
no genuine issue of material fact existed regarding two essential elements of
Smith’s negligence claim; causation and damages. This appeal followed.
We will discuss further facts as they become relevant.
ANALYSIS
1. Standard of Review
Kentucky Rule of Civil Procedure (“CR”) 56.03 authorizes a motion
for summary judgment “if the pleadings, depositions, answers to interrogatories,
stipulations, and admissions on file, together with the affidavits, if any, show that
-3- 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.” A court must view the record “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 Service Center,
Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). “If the litigants are
given an opportunity to present evidence which reveals the existence of disputed
material facts and upon the trial court’s determination that there are no such
disputed facts, summary judgment is appropriate.” Ross v. Powell, 206 S.W.3d
327, 330 (Ky. 2006). Further, “[w]hether summary judgment is appropriate is a
legal question involving no factual findings, so the trial court’s grant of summary
judgment is reviewed de novo.” McKinley v. Circle K, 435 S.W.3d 77, 79 (Ky.
App. 2014) (citation omitted).
2. Discussion
On appeal, Smith first argues that she did not need expert testimony to
prove the hemorrhoidectomy caused her injuries. Specifically, she claims it is
within the “common knowledge and experience of laymen . . . to recognize and
infer that Dr. Jaenicke caused bodily harm by cauterizing Judy Smith’s flesh and
making surgical cuts to her body[.]”
As a starting point for our analysis of Smith’s claims, “[i]t is
elementary for all tort cases that the plaintiff must establish a duty, breach thereof,
-4- causation, and injury.” Saint Elizabeth Medical Center, Inc. v. Arnsperger, 686
S.W.3d 132, 138 (Ky. 2024). Moreover, as discussed by a panel of this Court, “[i]t
is well established that in a medical malpractice case, the burden of proof is upon
the plaintiff to establish the negligence of a physician by medical or expert
testimony.” Nalley v. Banis, 240 S.W.3d 658, 660-61 (Ky. App. 2007) (citation
omitted). Indeed, expert testimony is “essential” in establishing a defendant
deviated from the standard of care and caused some injury to the plaintiff.
Blankenship v. Collier, 302 S.W.3d 665, 671 (Ky. 2010).
In some situations, Kentucky courts have recognized an exception to
the preceding requirement and have permitted the inference of negligence even in
the absence of expert testimony. Arnsperger, 686 S.W.3d at 138. In Arnsperger,
the Kentucky Supreme Court noted:
That a medical malpractice case may, in certain circumstances, proceed to trial without expert medical testimony when duty, breach, causation, and injury are readily apparent within the common knowledge of a jury has been frequently described as the “layman’s exception” in this case, but that term is a bit of a misnomer. The “layman’s exception” is in fact nothing other than the application of res ipsa loquitur – the thing speaks for itself.
Id. (citations omitted).
In this case, Dr. Jaenicke argues that Smith did not preserve her res
ipsa loquitur argument on appeal because she never raised it in a timely manner
-5- before the circuit court. Moreover, “[i]t is axiomatic that a party may not raise an
issue for the first time on appeal.” Sunrise Children’s Services, Inc. v. Kentucky
Unemployment Insurance Commission, 515 S.W.3d 186, 192 (Ky. App. 2016)
(citations omitted). In other words, “it is the accepted rule that a question of law
which is not presented to or passed upon by the trial court cannot be raised here for
the first time.” Hutchings v. Louisville Trust Co., 276 S.W.2d 461, 466 (Ky. 1954)
(citation omitted).
In this case, we agree with Dr. Jaenicke that Smith did not adequately
preserve the res ipsa loquitur argument she raised on appeal. Our examination of
the record reveals that this is the first time Smith has argued that she was not
required to present medical expert testimony based on a res ipsa loquitur theory.
Therefore, we will not discuss this new theory on appeal.
Smith next argues that the alleged injuries that she claims were caused
by the hemorrhoidectomy were substantiated by Dr. Jaenicke’s testimony and
qualified as admissions to negligence. If a defendant physician “makes certain
admissions that make his negligence apparent[,]” a plaintiff would not have to
present expert testimony. Blankenship, 302 S.W.3d at 670.
However, we disagree that any of Dr. Jaenicke’s statements
throughout the litigation could be characterized as “admissions that make his
negligence apparent.” Id. While Dr. Jaenicke made general statements regarding
-6- the risks and complications of a hemorrhoidectomy, including a discussion about
how a hemorrhoidectomy can be a painful procedure, Dr. Jaenicke never admitted
that the hemorrhoidectomy or any negligent performance on his part caused
Smith’s post-operative complaints.
Indeed, Smith had a complete pelvic organ prolapse before her
surgery, a history of constipation, and been diagnosed with a urinary tract infection
post-operatively. In other words, there were multiple reasons why she may have
been experiencing post-operative pain and bleeding. Dr. Jaenicke’s deposition
testimony cannot be read to be an admission that the hemorrhoidectomy was the
cause of her post-operative or current complaints.
Finally, Smith argues that the medical records and testimony of Dr.
Jon Stuart Hourigan further substantiated her injuries from the hemorrhoidectomy.
Smith had begun treatment with Dr. Hourigan in July 2020 due to complaints of
constipation, occasional incontinence, and anal pain. Dr. Hourigan evaluated
Smith under anesthesia and anal dilation, noting the following:
Overall, clinical complaints do not seem to be consistent with physical examination and operative findings during evaluation under anesthesia demonstrate minimal if any explanation for perianal pain. I cannot clearly determine why there is some degree of hypo sensitivity along the left perianal skin and increased sensitivity within the anal canal. Hemorrhoidectomy site, apparent by surgical scar, seems to be ordinary in appearance. Anal rectal tone is present.
-7- Dr. Hourigan was deposed in January 2023. At that time, he testified that he did
not intend to give an opinion in this case regarding whether any of Smith’s claimed
injuries or complaints were related to the hemorrhoid surgery.
Regarding Dr. Hourigan’s evidence, his notes and deposition
testimony demonstrate that he offered no opinions regarding whether Dr. Jaenicke
caused injury to Smith when performing the hemorrhoidectomy. Instead, he
affirmatively ruled out anal stenosis after performing the evaluation under
anesthesia, documenting in his post-surgical notes that the “superficial scar” seen
during the evaluation “should not be interpreted as post[-]hemorrhoidectomy anal
stenosis.” (Emphasis added.) Indeed, his “findings during evaluation under
anesthesia demonstrate minimal if any explanation for perianal pain.” Finally, he
conclusively stated in his deposition testimony that he did not intend to give an
opinion regarding whether any of Smith’s claimed injuries or complaints were
related to the hemorrhoid surgery, and he did not otherwise connect any of Smith’s
complaints to the hemorrhoidectomy performed by Dr. Jaenicke.
Thus, without supportive expert testimony establishing the causation
and damages portions of this medical malpractice action, there was no genuine
issue upon which relief may be granted, and summary judgment was appropriate.
-8- CONCLUSION
For the foregoing reasons, we affirm the Greenup Circuit Court’s
order granting summary judgment in Dr. Jaenicke’s favor.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Bert Ketchum C. Jessica Pratt Michael C. Walker Cincinnati, Ohio Huntington, West Virginia
-9-