Kentucky Guardianship Administrators, LLC, as Conservator for Kali Crusenberry v. Baptist Health System, Inc. D/B/A Baptist Health Corbin

• Court: Kentucky Supreme Court
• Decided: October 27, 2021
• Docket: 2019 SC 0295
• Status: Unknown

Opinion

RENDERED: OCTOBER 28, 2021 TO BE PUBLISHED

Supreme Court of Kentucky 2019-SC-0295-DG

KENTUCKY GUARDIANSHIP APPELLANTS ADMINISTRATORS, LLC, AS CONSERVATOR FOR KALI CRUSENBERRY; AND LOUISE YOUNT, AS GUARDIAN FOR KALI CRUSENBERRY

ON REVIEW FROM COURT OF APPEALS V. NOS. 2017-CA-0665, 2017-CA-0727 & 2017-CA-0752 WHITLEY CIRCUIT COURT NO. 14-CI-00590

BAPTIST HEALTHCARE SYSTEM, INC. APPELLEES D/B/A BAPTIST HEALTH CORBIN; APOGEE MEDICAL GROUP, KENTUCKY, PSC; AND SUBHOSE BATHINA, M.D.

OPINION OF THE COURT BY JUSTICE KELLER

AFFIRMING

Kentucky Guardianship Administrators, LLC, conservator for Kali

Crusenberry, and Louise Yount, guardian for Kali Crusenberry (collectively

“Crusenberry”) appeal from the Court of Appeals’ decision affirming the Whitley

Circuit Court’s judgment in favor of Baptist Healthcare System, Inc. (Baptist

Health) and Apogee Medical Group, Kentucky, PSC and Subhose Bathina, M.D.

(Bathina). After a thorough review, we affirm. I. BACKGROUND

Kali Crusenberry was admitted to Baptist Health in Corbin on August 1,

2013, for symptoms including fever, vomiting, and extreme nausea. Upon

arrival, Crusenberry was diagnosed with a urinary tract infection, a kidney

infection, gallstones, pneumonia, and hypokalemia (low potassium). She was

treated surgically for a kidney stone, which included placement of a stent.

Additional treatment included, among other things, the administration of an

antibiotic (Azithromycin) as well as potassium replacement. Crusenberry’s

condition dramatically improved. By August 4, after three days of fluctuating

potassium levels, nurses stopped following the standing potassium

replacement order that had been put in place. On August 5, Crusenberry was

discharged by Dr. Bathina who, after a review of her record, sent her home

with a prescription for a different antibiotic, Levaquin. When taken by patients

with low potassium levels, both Azithromycin and Levaquin increase a patient’s

risk for prolonged QT intervals resulting in arrhythmias and possible cardiac

arrest. Both antibiotics come with a warning required by the FDA to that effect.

The next morning, while at her home, Crusenberry took the Levaquin as

prescribed. At around 11:00 a.m., her mother found her in cardiac arrest. Her

mother called 911. Paramedics soon arrived and took Crusenberry back to

Baptist Health. Before arriving, the paramedics shocked Crusenberry’s heart.

Upon arrival, an EKG revealed that her QT interval was dangerously prolonged,

and testing showed that her potassium levels were, again, critically low. A

prolonged QT interval can be fatal and can lead to dangerous arrhythmias

2 (irregular heartbeats). Following her cardiac arrest, further tests indicated that

Crusenberry had suffered an onset of Takotsubo Syndrome. Takotsubo

Syndrome is a weakening of the left ventricle of the heart resulting from a

sudden emotional or physical trigger.1

Because of the cardiac arrest, Crusenberry’s brain was deprived of

oxygen. As a result, Crusenberry can no longer speak, control her bowels, or in

any way ambulate with her upper or lower extremities. Crusenberry brought

suit against both Baptist Health and Dr. Bathina for her injuries. Crusenberry

claimed that both the hospital’s nursing staff and Dr. Bathina breached their

respective standards of care by forgoing the standing potassium replacement

order and by prescribing her two antibiotics known to be linked to arrhythmias

and cardiac arrest when taken by patients with low potassium. Crusenberry

further argues that the breach of these duties directly caused her injuries.

After eleven days of trial, the jury found that neither Dr. Bathina nor

Baptist Health had breached their standard of care. Because it found in favor

of the defendants on that issue, the jury did not reach the issues of causation

or damages. The Court of Appeals affirmed the trial court’s ruling. Finding no

reversible error, we affirm the Court of Appeals.

1 Takotsubo cardiomyopathy (broken-heart syndrome), HARVARD HEALTH PUBL’G, (Jan. 29, 2020) https://www.health.harvard.edu/heart-health/takotsubo- cardiomyopathy-broken-heart-syndrome (last visited Oct. 7, 2021).

3 II. STANDARD OF REVIEW

When reviewing a trial court’s evidentiary rulings, our review is limited to

a determination of whether the trial court abused its discretion. Goodyear Tire

& Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000) (citations omitted).

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

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). “Rulings upon

admissibility of evidence are within the discretion of the trial judge,” and we

will not reverse absent a “clear abuse of discretion.” Simpson v. Commonwealth,

889 S.W.2d 781, 783 (Ky. 1994). Because they are evidentiary issues, the first

seven of the eight issues before us in the instant case therefore squarely fit into

an abuse of discretion standard.

The standard of review for the eighth issue on appeal, regarding the jury

instruction, is discussed infra. On that issue, we rely upon this Court’s prior

holding that “a trial court’s decision on whether to instruct on a specific claim

will be reviewed for abuse of discretion; the substantive content of the jury

instructions will be reviewed de novo.” Sargent v. Shaffer, 467 S.W.3d 198, 204

(Ky. 2015), overruled on other grounds by Univ. Med. Ctr., Inc. v. Shwab, 628

S.W.3d 112 (Ky. 2021).

III. ANALYSIS

On appeal to our Court, Crusenberry claims eight errors:

1. The trial court improperly precluded Baptist Health’s Incident Report as a subsequent remedial measure;

4 2. The trial court improperly precluded Crusenberry’s causation expert from offering his reliable causation opinions; 3. The trial court improperly precluded Crusenberry from cross- examining Dr. Bathina with the Baptist Health Audit Trail; 4. The trial court improperly precluded Crusenberry from cross- examining Baptist Health’s corporate representative on matters of credibility; 5. The trial court improperly precluded Crusenberry from cross- examining one of Dr. Bathina’s expert witnesses with a medical journal article found in his case file; 6. The trial court improperly allowed Dr. Bathina to give undisclosed expert testimony; 7. The trial court improperly allowed expert witnesses for Baptist Health and Dr. Bathina to give undisclosed expert testimony; and 8. The trial court’s jury instruction improperly limited, and prejudicially misstated, Baptist Health’s legal duty.

We consider each issue in turn.

A. Evidence Crusenberry argues was improperly excluded

1. Baptist Health’s Incident Report

Crusenberry first argues that the trial court improperly excluded an

Incident Report produced by Baptist Health Lexington regarding Crusenberry’s

treatment at Baptist Health Corbin. The Incident Report appears to be a screen

shot from Baptist Health’s computer system. The final sentence of the “Incident

Description” portion of the report states, “Clinically suspected that combination

of levofloxacin[2] and hypokalemia led to ventricular arrythmia.”

Pretrial, both Baptist Health and Dr. Bathina moved the court in limine

to exclude the Incident Report. At a pretrial motion hearing, Baptist Health and

Dr. Bathina argued that the Incident Report was a subsequent remedial

measure inadmissible under Kentucky Rule of Evidence (KRE) 407. They also

2 Levofloxacin is the generic name of Levaquin.

5 argued that Crusenberry could not properly authenticate the report or lay a

proper foundation for the report because no one knew who conducted the

investigation that led to the creation of the Incident Report or who wrote the

Incident Report.3 Crusenberry, on the other hand, argued that the Incident

Report was extremely relevant on the issue of causation and that it supports

her expert while rebutting the testimony of the defendants’ experts. Finally,

Crusenberry argued to the trial court that the Incident Report was admissible

under KRE 7024 as her expert relied upon it in reaching his conclusions. The

trial court agreed with Baptist Health and Dr. Bathina and excluded the

Incident Report, noting specifically that Crusenberry did not know who wrote

the report.

Despite the trial court’s pretrial ruling, Crusenberry asked the court to

allow her to cross-examine Dr. George Stacy about the Incident Report. Dr.

Stacy is a cardiologist who testified at trial as an expert witness on behalf of

Dr. Bathina. He testified that Crusenberry’s condition was caused by

Takotsubo Syndrome and had nothing to do with low potassium or Levaquin.

He further testified that he saw no reports written by doctors that attributed

her condition to anything other than Takotsubo and that the only reports he

saw that did so were written by nurse practitioners. After this testimony,

Crusenberry’s counsel approached the bench and moved the trial court to

3 Crusenberry claims that Baptist Health and Dr. Bathina did not present their

authentication argument to the trial court, but our review of the record shows this to be inaccurate. 4 We assume on review that Crusenberry meant KRE 703.

6 allow him to use the Incident Report. Specifically, he sought to ask Dr. Stacy if

the report’s conclusion that the “combination of levofloxacin and hypokalemia

led to ventricular arrythmia” was incorrect. Bathina objected, arguing that Dr.

Stacy had never seen the Incident Report and would not know anything about

it. The trial court denied Crusenberry’s motion.

To this Court, Crusenberry argues that the Incident Report is not a

subsequent remedial measure under KRE 407 and this Court’s recent decision

in Thomas v. University Medical Center, Inc., 620 S.W.3d 576 (Ky. 2020).

Crusenberry alleges that the high probativeness of the report was not

substantially outweighed by the danger of undue prejudice, confusion of the

issues, or misleading the jury under KRE 403. She further argues that the

report was proper fodder for cross-examination under KRE 611, which allows a

witness to “be cross-examined on any matter relevant to any issue in the case,

including credibility” and Miller ex rel. Monticello Banking Co. v. Marymount

Medical Center, 125 S.W.3d 274, 281 (Ky. 2004), which allows for an

“unlimited” “range of possibilities” to prove the bias of a witness.

On the other hand, Baptist Health argues to this Court that the Incident

Report was properly excluded for three reasons. First, Baptist Health argues

that Crusenberry failed to properly authenticate the Incident Report as

required by KRE 901. Second, although conceding that the Incident Report is

not a subsequent remedial measure requiring exclusion under KRE 407 and

Thomas, Baptist Health argues that the report lacked probative value and its

admission would have been unduly prejudicial under KRE 403. Third, Baptist

7 Health argues the trial court properly prohibited Crusenberry from cross-

examining Dr. Stacy regarding the Incident Report because it was not probative

of Dr. Stacy’s credibility. Finally, Baptist Health argues that even if the report

was improperly excluded, such exclusion was harmless error.

Dr. Bathina, like Baptist Health, argues that the Incident Report was

properly excluded because it was not properly authenticated and because,

under KRE 403, its probative value was substantially outweighed by the risk of

undue prejudice and confusion of the jury. Dr. Bathina also argues that any

error in the admission of the Incident Report was harmless.

Although neither Baptist Health nor Dr. Bathina, in their arguments to

this Court, seem to rely on KRE 407 as a basis for exclusion of the Incident

Report, because the trial court did not yet have the benefit of our decision in

Thomas when it made its ruling on the exclusion of the report, we will very

briefly address this issue. The relevant part of KRE 407 states:

When, after an event, measures are taken which, if taken previously, would have made an injury or harm allegedly caused by the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction.

In Thomas, we sought to clarify this rule by holding that a determination

of whether a post-incident investigatory report qualifies under KRE 407

as a subsequent remedial measure “turns on whether the report

recommends a remedial change and whether that change is

implemented.” 620 S.W.3d at 586. In this case, it is clear that the

8 Incident Report did not recommend any “remedial change” as required by

Thomas, and therefore should not have been excluded on this basis.

Another basis for exclusion argued by Baptist Health and Dr.

Bathina to the trial court was a lack of authentication. Crusenberry

argues that Baptist Health and Dr. Bathina did not make this argument

to the trial court and that it is therefore not preserved for our review, but

this is a mischaracterization of the arguments of Baptist Health and Dr.

Bathina at the pretrial motion hearing. At the hearing, Dr. Bathina’s

counsel repeatedly questioned who wrote the report and pointed out that

it was not signed. Baptist Health’s attorney, although primarily relying

on the KRE 407 argument, stated that she “agree[d] with [the]

authentication and laying a foundation” arguments made by Dr. Bathina.

Further, as stated above, the trial court specifically noted while making

its ruling that Crusenberry did not know who authored the Incident

Report. Crusenberry offered no argument or in any other way indicated

that she did have this knowledge and could authenticate the document.

KRE 901(a) requires that a document or other matter be

authenticated or identified prior to its admission. This requirement “is

satisfied by evidence sufficient to support a finding that the matter in

question is what its proponent claims.” KRE 901(a). Although not the

only way to authenticate an item, one way this can be accomplished is

through the “[t]estimony of [a] witness with knowledge.” KRE 901(b)(1).

That witness need only testify that the “matter is what it is claimed to

9 be.” Id. “The burden on the proponent of authentication is slight; only a

prima facie showing of authenticity is required.” Sanders v.

Commonwealth, 301 S.W.3d 497, 501 (Ky. 2010).

In this case, Crusenberry sought to admit the Incident Report, and

therefore was required to provide at least some evidence regarding what

exactly that Incident Report was, i.e., by whom it was generated; in what

context it was generated; how it was generated; etc. Crusenberry offered

absolutely no evidence of this. Further, the foundational requirement of

authentication is not eradicated merely because the evidence is used on

cross-examination or to impeach a witness. Yet, even after being advised

of the authentication problem at the pretrial hearing, Crusenberry made

no attempt to authenticate the Incident Report before attempting to

question Dr. Stacy about it.5 Accordingly, the trial court did not err in

excluding the Incident Report.

Because we hold that the trial court did not err in excluding the

Incident Report based on a lack of authentication, we need not address

the parties’ KRE 403 arguments. However, we note that, with a proper

foundation, a hospital’s conclusion regarding the cause of an incident is

likely to be highly relevant in a medical malpractice case.

5 It is unclear from our review of the record why Crusenberry did not have sufficient information to properly authenticate the Incident Report. However, we note that she had to make several requests and motions to the trial court before certain internal investigation documents were even turned over in discovery. While we understand that the parties did not have the benefit of our Thomas decision while this case was being litigated, it should now be clear that documents such as this Incident Report are discoverable, even if not necessarily admissible.

10 2. Causation Expert

Crusenberry further argues that the trial court improperly limited the

testimony of its primary causation witness, Dr. Tisdale. Dr. Tisdale is a Doctor

of Pharmacy. He is a professor of pharmacy at both Purdue University and

Indiana University. He has published extensively on the topic of

pharmaceutical risks associated with heart arrhythmias such as Torsades de

Pointes, from which Crusenberry may have suffered. In addition to his

scholarly work, Dr. Tisdale has served for over a decade as a clinical

pharmacist in hospitals, assisting and advising ICU and cardiology medical

care teams as they treat patients. Crusenberry’s Kentucky Rule of Criminal

Procedure (CR) 26 expert disclosure on Dr. Tisdale stated that he would testify

to

• The pharmacologic treatment of hypokalemia and the risks associated with failing to treat hypokalemia appropriately; • The background, uses, contraindications, warnings and incident reports for Levaquin; • Torsade de Pointes, including the nature, causes, treatment, and outcomes of the condition; • That Kali Crusenberry suffered from hypokalemia, which was not treated appropriately; • That Levaquin was contraindicated and should not have been prescribed to Kali; • There were a number of other antibiotics that could have been prescribed, which would have had the same benefit and less risks; and • Kali’s uncorrected hypokalemia and Levaquin combined to cause prolonged QT and cardiac arrest.

Crusenberry referred to Dr. Tisdale as her causation expert at the

pretrial motion hearing and at different points during the trial. However, on

11 appeal, she now argues that his testimony was also relevant to the issue of

standard of care and that limiting his testimony was an abuse of discretion.

Before trial, both Baptist Health and Dr. Bathina moved to exclude Dr.

Tisdale’s testimony in its entirety. First, they argued that Dr. Tisdale should be

excluded from testifying on the premise that he did not qualify as an expert for

the purposes of giving a medical opinion. That motion was denied at the

conclusion of a pretrial hearing. Dr. Bathina also filed a Daubert motion

seeking to prohibit Dr. Tisdale from testifying to standard of care, cardiology,

measurement of QT intervals, causation, and treatment of patients with

hypokalemia. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). The

trial court similarly denied this motion at the conclusion of the same hearing.

At trial, Dr. Tisdale testified regarding each of the areas permitted by the

trial court’s orders regarding his testimony. After much of this testimony was

completed, an extended exchange occurred between Crusenberry’s counsel and

Dr. Tisdale about how Crusenberry had multiple risk factors that would have

made it extremely likely that her cardiac arrest was caused by Levaquin.

Crusenberry’s counsel then asked Dr. Tisdale if the cause of Crusenberry’s

cardiac arrest was possibly a blood clot instead. Dr. Tisdale replied that it was

not.

Dr. Bathina’s counsel objected to Dr. Tisdale’s opinion that

Crusenberry’s cardiac arrest was not caused by a blood clot. Following the

objection, the trial court limited Dr. Tisdale’s testimony by 1) striking his

opinion that Crusenberry did not suffer a cardiac arrest resulting from a blood

12 clot from the record, and 2) issuing a limiting instruction that Dr. Tisdale no

longer testify specifically to Crusenberry’s treatment. Instead, Crusenberry

could only elicit testimony regarding general questions about risk factors and

causation within Dr. Tisdale’s area of expertise. By that point, however, Dr.

Tisdale had already discussed Crusenberry’s specific risk factors, opined that

her risk for suffering from Torsades de Pointes was 900% higher than the

average person as a result of her risk factors and care, and even testified to his

own calculation of Crusenberry’s QT intervals over the course of several tests

done while she was at the hospital. None of this testimony was stricken from

the record.

Dr. Bathina and Baptist Health argue that Dr. Tisdale should not have

been permitted to testify regarding Crusenberry specifically because Dr. Tisdale

was not a “medical doctor,” and therefore did not have the expertise required

under KRE 702. Under Rule 702,

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

1. The testimony is based upon sufficient facts or data; 2. The testimony is the product of reliable principles and methods; and 3. The witness has applied the principles and methods reliably to the facts of the case.

This rule was amended in 2000 to codify the United States Supreme Court’s

holding in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579. In Daubert, the

United States Supreme Court held that rigid evidentiary requirements for

13 expert or scientific testimony were “at odds with the ‘liberal thrust’” of

evidentiary rules overall as they pertain to opinion testimony. Id. at 588

(citations omitted). Instead, the Court loosened the test applied to specialized

expert testimony, requiring the three elements now incorporated into KRE 702.

See id. at 589–90; KRE 702(1)–(3). By incorporating Daubert into its Rules of

Evidence, Kentucky has likewise recognized the utility in loosening the rigid

lines formerly applied to specialized expert testimony.

This Court interpreted KRE 702 as it pertains to medical professionals in

Savage v. Three Rivers Medical Center, 390 S.W.3d 104 (Ky. 2012). In Savage,

this Court held that a nurse practitioner was sufficiently qualified to testify

regarding her interpretation of an x-ray. Id. at 117. Before Savage, this Court

had held that ordinarily, nurses were not qualified to interpret the application

of x-rays to the human body. Id. at 116–17. However, given her training and

experience reading x-rays in the Vietnam war, this Court held that the nurse in

Savage based her testimony on sufficient data. Id. Her testimony was therefore

the product of reliable methods reliably applied. Id. In holding so, this Court

established that expert medical testimony need not come from an M.D., so long

as the elements of KRE 702 are met by sufficient relevant experience.

Here, Dr. Tisdale’s testimony revealed that he had over a decade of

experience working in hospitals with patients. In that experience, he

recommended care to doctors on the same issues presented in Crusenberry’s

case. His testimony also revealed his academic expertise, the methods he used

for calculating QT intervals, and the methods used in his studies to determine

14 the severity of risk factors in certain populations. Like the nurse in Savage, Dr.

Tisdale’s experience qualified him to give expert testimony under KRE 702

regarding causation and standard of care in Crusenberry’s case. Furthermore,

the trial court had already determined on two separate motions before trial that

Dr. Tisdale could testify consistent with his expert disclosure.

The trial court therefore erred by basing its limitation of Dr. Tisdale’s

testimony on his lack of an M.D., apparently directly contravening its earlier

rulings. In doing so, the trial court ignored the elements of KRE 702 and our

subsequent decision in Savage. Not having an M.D. does not unilaterally

disqualify an expert from testifying where he or she meets the elements of KRE

702. The trial court’s ruling based solely on this fact was an abuse of

discretion.

Finding error, we must determine if the error was harmless. An error is

harmless “if we can say with fair assurance that the judgment was not

substantially swayed by the error.” Brown v. Commonwealth, 313 S.W.3d 577,

595 (Ky. 2010). Crusenberry sought to use Dr. Tisdale’s testimony for

causation. However, she argues that his testimony was also relevant to the

issue of standard of care and that limiting his testimony was therefore not

harmless. Dr. Bathina and Baptist Health argue that because Dr. Tisdale’s

purpose was to testify to causation, his testimony was irrelevant to standard of

care and duty, the only issue decided by the jury, and therefore, the exclusion

of his testimony was harmless. However, Crusenberry’s CR 26 Expert

Disclosures stated that Dr. Tisdale would testify not only to hypokalemia,

15 pharmaceutical risks, and Toursades de Pointes, but also that Crusenberry was

“not treated appropriately” and that Levaquin “should not have been prescribed

to [Crusenberry].” We may assume that Dr. Tisdale’s testimony regarding

Crusenberry specifically therefore would be relevant to the standard of care as

well as causation.

The jury had already heard much of Dr. Tisdale’s testimony that was

probative of a standard of care as it related to Crusenberry’s case before the

limiting instruction was granted. As noted, the jury heard Dr. Tisdale’s

extensive testimony regarding Crusenberry’s risk factors, how risk factors

compounded, and what doctors should or should not prescribe for patients

who suffer from low potassium, as well as how he would have advised a doctor

to treat Crusenberry. Dr. Tisdale even testified regarding what he considered

the ethical limitations for treating patients with QT lengthening drugs that have

irregular potassium levels, giving a specific numerical limit for both potassium

levels and QT lengths, immediately before discussing Crusenberry’s own QT

length (which he identified as high). By the time the limitation was placed on

Dr. Tisdale’s testimony, he had already likely done much of what he was called

to testify to do. Striking one question and answer and limiting the remainder of

Dr. Tisdale’s testimony to general risk factors and care was therefore harmless

error.

3. Baptist Health Corbin’s Audit Trail Crusenberry next argues that the trial court improperly precluded her

from cross-examining Dr. Bathina with an audit trail from Baptist Health

16 Corbin. According to Crusenberry, the audit trail shows every time and date a

patient’s medical chart was accessed, who accessed it, what part of the medical

chart was accessed, and whether any edits were made to the chart.

Crusenberry sought to cross-examine Dr. Bathina during trial with the audit

trail in an effort to prove that he only viewed the “face sheet” of her medical

chart before discharging her from the hospital. The face sheet includes the

patient’s name, address, phone number, and other demographic-type

information but apparently does not include any medical information for the

patient.

Crusenberry began this portion of her cross-examination of Dr. Bathina

by asking Dr. Bathina if he knew what an audit trail was. Dr. Bathina said he

did not. Crusenberry then began to explain an audit trial to Dr. Bathina, but

Dr. Bathina’s counsel objected on the basis that the audit trail was not

authenticated and Crusenberry’s counsel could not testify through his

questioning as to what an audit trail was. The trial court sustained the

objection because Dr. Bathina did not know what an audit trial was.

Crusenberry continued this line of questioning. Dr. Bathina acknowledged that

the computer system should in some way show what he looked at in

Crusenberry’s chart, but again asserted that he did not know anything about

an audit trail. Crusenberry’s counsel began another question by asking,

“Would it surprise you,” when Dr. Bathina’s counsel objected again on the

grounds that Crusenberry had failed to lay a proper foundation and that an

expert was needed to explain the audit trail. The trial court sustained the

17 objection but allowed Crusenberry to ask Dr. Bathina if it was true that he had

only looked at the face sheet without referencing the audit trail specifically.

Crusenberry argues to this Court that the trial court improperly

precluded her from cross-examining Dr. Bathina with the audit trail. She

claims she had a good faith basis for cross-examining Dr. Bathina with the

audit trail because a Baptist Health witness testified to its accuracy during a

discovery deposition. She also argues that no legal basis exists to preclude

cross-examination of a witness with impeachment documents merely because

that witness is unfamiliar with the document, since this would allow a party to

“‘bulletproof’ his testimony by only familiarizing himself with favorable

evidence.” Finally, Crusenberry indicates that she could have easily

authenticated the document and that she did not intend to admit it as an

exhibit.

Baptist Health and Dr. Bathina argue that the trial court did not err in

precluding Crusenberry from cross-examining Dr. Bathina with the audit trail

for two reasons. First, they argue that Crusenberry failed to authenticate the

audit trail, as Dr. Bathina did not know what it was and Crusenberry did not

call any other witness to explain the document. Second, they argue that the

audit trail was not proper impeachment evidence, as it did not contain any

inconsistent statements of Dr. Bathina.

We agree with Baptist Health and Dr. Bathina that the trial court did not

abuse its discretion in precluding Crusenberry from cross-examining Dr.

Bathina with the audit trail. Even documents that will not be admitted into

18 evidence as exhibits but will only be used in questioning a witness must be

authenticated. See KRE 901. In this case, Dr. Bathina was unable to

authenticate the audit trail, as he did not know what it was. Crusenberry did

not call any other witness to authenticate the document. Because Crusenberry

did not produce any evidence, witness or otherwise, “to support a finding that

the [audit trail] is what [Crusenberry] claim[ed],” the trial court did not err in

precluding her use of it in cross-examining Dr. Bathina. See KRE 901(a).

Because we have determined the audit trail was properly excluded based

on a lack of authentication, we need not determine whether it would have been

proper impeachment evidence. However, we note that inconsistent statements

of the witness are not the only admissible type of impeachment evidence.

4. Baptist Health Corbin’s Corporate Representative

Paige Harbin was one of Crusenberry’s attending floor nurses during her

stay at Baptist Health. Harbin was one of three nurses who failed to provide

potassium to Crusenberry pursuant to the Potassium Replacement Order.

Harbin was Baptist Health’s designated representative at trial. There, she

testified that she was given a verbal order from Dr. Hienss to withhold

potassium, although Dr. Hienss denied giving such an order.

Regarding Harbin’s cross-examination, Crusenberry alleges two errors.

First, Crusenberry argues that prohibiting a line of questioning regarding how

frequently she rehearsed her testimony was an abuse of discretion. Second,

Crusenberry argues that prohibiting a further line of questioning regarding her

19 participation in a pretrial internal investigation was an abuse of discretion. We

address each allegation in turn.

a. Questioning the Frequency of Attorney-Client Meetings

While cross-examining Harbin about her knowledge of Baptist Health’s

corporate structure and location, our review of the record shows the following

exchange:

Crusenberry Counsel: Have you been to headquarters in Louisville?

Harbin: Yes, I have.

Crusenberry Counsel: I realize you said you were nervous, but you did an excellent job. Tell the ladies and gentlemen of the jury, how many times have you rehearsed your testimony?

Baptist Health Counsel: Your honor, may we approach the bench?

Baptist Health objected before Harbin answered Crusenberry’s counsel’s

question. At the bench, counsel and the trial court had the following

discussion:

Crusenberry Counsel: Nothing wrong with that.

Baptist Health Counsel: That’s work product. He can’t ask her how many times she’s rehearsed. It’s work product; attorney work product.

Trial Court: Why do you want it in . . . why do you want to talk about it anyway?

Crusenberry Counsel: Because it was just too perfect, and she’s practiced it and rehearsed it and I bet she came—

Baptist Health Counsel: Maybe she’s just telling the truth.

Trial Court: Maybe if you say, have you rehearsed it?

20 Crusenberry Counsel: Okay.

Baptist Health Counsel: Judge, judge, wait, wait, sir, have you rehearsed it and how many times—it’s a mistrial. We don’t want a mistrial.

Trial Court: Yeah, yeah, you’re right. That’s not a good question either. We’re not at a mistrial yet. But, let’s just stay off of that topic.

Crusenberry Counsel: What—can I impeach the party representative that she’s rehearsed her testimony? I bet she’s come into the courtroom and rehearsed it. I wanna ask her that.

Baptist Health Counsel: No.

Trial Court: I don’t think we need to go there. Just take her testimony as it is.

Crusenberry Counsel: Well, I wanna put it in by avowal at some point.

Trial Court: Okay, that’s fine.

Dr. Bathina Counsel: Judge, so, so you’ve overruled—or, you’ve sustained the motion?

Trial Court: Yes. Not the motion for a mistrial.

Dr. Bathina Counsel: Right.

In sum, Crusenberry believed that by questioning Harbin on this issue,

Crusenberry could establish Harbin’s bias. Baptist Health objected to this line

of questioning, claiming a violation of work product. Baptist Health’s objection

was sustained. The Court of Appeals determined that while the testimony was

not work product protected under CR 26, it was protected testimony under the

attorney-client privilege set out in KRE 503.

21 On appeal to our Court, Baptist Health asserts attorney-client privilege.

The attorney-client privilege is a stringent protection of testimonial material.

See St. Luke Hosps., Inc. v. Kopowski, 160 S.W.3d 771, 777 (Ky. 2005). Under

KRE 503, the privilege attaches to confidential communications between clients

and lawyers “made for the purpose of facilitating the rendition of professional

legal services.” (a), (b). The attorney-client privilege enjoys few exceptions. Id. at

(b), (d). We agree with the Court of Appeals that were a privilege to apply,

attorney-client privilege is the better classification for the kind of protection at

issue. However, we need not consider the issue. Even if the information sought

is not privileged, it still must comport with our rules of evidence regarding an

attack on witness credibility.

Crusenberry stated that she intended to impeach Harbin’s credibility by

showing that her answers were rehearsed. Looking to the Kentucky Rules of

Evidence, we must assume that Crusenberry’s goal was to attack Harbin’s

credibility with past conduct.6 KRE 608(b) outlines the parameters for cross-

examining a witness in such a way:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness . . . . No specific instance of conduct of a witness may be the subject of inquiry under this

6 Although the rule regarding specific instances of past conduct (KRE 608) does not mention impeachment, but rather “attacking . . . the witness’ credibility,” the Notes to the rule use “impeachment” interchangeably. Rules that mention impeachment explicitly (KRE 407, 609, 613, etc.) are not implicated by Crusenberry’s attempted line of questioning.

22 provision unless the cross-examiner has a factual basis for the subject matter of his inquiry.

(emphasis added). Therefore, to use an alleged rehearsal to attack Harbin’s

credibility, the conduct in question must 1) be probative of truthfulness, and 2)

stem from a factual basis. Crusenberry has established neither.

Although Crusenberry implies that Harbin was coached in her testimony,

her counsel did not state to the trial court any explicit accusation of

untruthfulness, nor how his question regarding rehearsal would be probative of

truthfulness, or lack thereof. Further, Crusenberry’s only basis for the question

about Harbin’s conduct was that she was “too perfect.” Crusenberry attempted

to justify a question regarding the witness’s prior conduct on speculation alone.

This Court most recently considered the use of KRE 608(b) in Sims v.

Commonwealth, No. 2020-SC-0097-MR, 2021 WL 2614853, at *5 (Ky. June 17,

2021). There, an attorney sought to attack the credibility of a minor by asking

if she had frequently gotten in trouble for lying. Id. This Court determined that

while the line of questioning regarded truthfulness of a main witness, “[g]iven

the absence of legal support for Sims’s position and considering the well-

recognized principle of evidence prohibiting impeachment on collateral facts,”

the trial court did not abuse its discretion by prohibiting the question. Id.

Here, we have less of an indication that counsel’s question was probative

of truthfulness than this Court did in Sims, where honesty was an element of

the question itself. Id. Instead, we are left to infer Crusenberry’s intent to

indicate dishonesty in Harbin’s testimony. As noted above, we likewise have no

23 specified factual basis for the alleged rehearsals other than that the witness, in

Crusenberry’s opinion, was doing too good of a job. This speculation is

insufficient to warrant a related attack on Harbin’s credibility.

Legal precedent for Crusenberry’s attempt is similarly lacking. In support

of her claim, Crusenberry cites to Humana of Kentucky, Inc. v. McKee, a Court

of Appeals decision not binding on this Court. 834 S.W.2d 711 (Ky. App. 1992).

In McKee, a nurse inaccurately stated the number of times she met with

counsel before trial. Id. at 721. She had previously disclosed a different number

via affidavit. Id. On re-direct, McKee impeached the nurse on the issue. Id. at

722. Humana alleged on appeal that the impeachment was improper because it

concerned a collateral issue. Id. at 721. The court determined that the

impeachment was proper. Id. at 722. The central issue in McKee, therefore, was

neither attorney-client privilege nor prior conduct; instead, the issue was

impeachment with a prior inconsistent statement. Here, by contrast, we have

no prior inconsistent statement (nor any factual underpinning). McKee is thus

unpersuasive.

Having no indication of either probativeness for truth or a factual basis,

Crusenberry’s question did not comport with the requirements set forth in KRE

608. Accordingly, the trial court’s limitation on Crusenberry’s ability to cross-

examine on testimony rehearsal was not “arbitrary, unreasonable, unfair, or

24 unsupported by sound legal principles.” English, 993 S.W.2d at 945.7 We find

no error on this issue.

b. Questioning Harbin’s Participation in an Earlier Investigation Second, Crusenberry claims error because she was prohibited from

questioning Harbin’s participation in a prior internal hospital investigation

related to Crusenberry’s injury. Before trial, the court decided that Crusenberry

could not ask about any confidential communications between Harbin and the

internal investigator (now Baptist Health’s attorney). Crusenberry stated that

she would only ask whether Harbin had given a written statement; Baptist

Health agreed to this limitation. All parties agreed that Crusenberry could not

use the internal investigation to impeach Harbin. At trial, Baptist Health

objected three times to Crusenberry’s phrasing of their agreed-upon question.

The judge sustained the objection each time.

Crusenberry now argues that the agreed-upon limitation was error.

Baptist Health argues that the issue was not properly preserved because the

trial court never ruled against Crusenberry’s counsel on the matter other than

to limit him to his own suggested question, to which he agreed each time.

7 Regardless, the question would prove relatively unnecessary. Later at trial, Crusenberry questioned Harbin about how long she spent looking at the documents that she was asked to review at trial, claiming that she “must have spent hours” looking over the material. Harbin denies having spent hours reviewing it, but the exchange again served to imply not only Crusenberry’s suspicion that Harbin was overly-rehearsed on her testimony, but also showed Crusenberry’s ability to elicit such information without asking directly about her frequency of rehearsals with trial counsel.

25 To review the trial court’s ruling, we must first determine whether a

sufficient offer of proof was provided. KRE 103 establishes the requirements for

review of alleged error:

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and

(1) Objection. If the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. If the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

In short: “[T]o preserve a trial court’s ruling for appeal, a substantial

right of the party must be affected and . . . the substance of the excluded

testimony must be provided to the trial court.” Henderson v. Commonwealth,

438 S.W.3d 335, 339 (Ky. 2014). An “offer of proof provides the trial court with

a foundation to evaluate properly the objection,” so that on appeal, a reviewing

court may determine whether a right has been violated by the exclusion of

evidence. Id. at 340. In the Commonwealth, this requirement is well-

established and long predates the latest version of the KRE. See Tipper v.

Commonwealth, 58 Ky. (1 Met.) 6, 12 (1858).

The simple refusal to permit an answer to a question is not, of itself, sufficient to show the character of the evidence intended to be elicited by the question. The party excepting to the refusal should, in order to avail himself of the error of the circuit court, state what he expected or believed the witness would prove in response; and let the bill of exceptions show it. Otherwise, this court [cannot] say that the evidence sought by the inquiry was important, or that the refusal to permit an answer was prejudicial to the defendant. 26 Id. In other words, without an adequate offer of proof, we cannot determine

what other evidence would have been drawn from a witness, and how that

evidence related to a substantive right.

In Henderson v. Commonwealth, this Court held that offers of proof must

“highlight what [a witness] would actually say if given a chance to testify.” 438

S.W.3d at 341. There, an attorney made “vague references to the general theory

of defense,” arguing on appeal that “the excluded testimony was apparent from

the context.” Id. at 340–41. This Court rejected counsel’s argument. We held

that even if the Court may infer from testimony what the defense strategy may

have been, that does not absolve counsel from providing “some modicum of

proof.” Id. at 341.

It is unclear what Crusenberry intended to elicit from Harbin that was

limited by the trial court. Both before trial and during trial, each time

Crusenberry’s counsel was confronted about discussions regarding the

investigation, counsel maintained that what he wished to establish was an

answer to the agreed-upon question. Crusenberry’s counsel did not indicate to

the court that he could not do what he wanted to do, and what any other

potential evidence would have revealed. We therefore do not even have a vague

indication, as we did in Henderson, of what precisely Crusenberry’s counsel

intended to elicit through further questioning—nor what those questions may

have been. Accordingly, we find that the trial court did not abuse its discretion

in limiting the testimony.

27 5. Medical Journal Article

Crusenberry next argues that the trial court improperly precluded her

from cross-examining Dr. Harold Helderman, a nephrologist8 and one of Dr.

Bathina’s expert witnesses, with a medical journal article found in his case file.

During Crusenberry’s cross-examination of Dr. Helderman, Crusenberry read

three portions of a Mayo Clinic article entitled “Rare Incidence of Ventricular

Tachycardia and Torsades de Pointes in Hospitalized Patients With Prolonged

QT Who Later Received Levofloxacin: A Retrospective Study.” This article was in

Dr. Helderman’s case file because Dr. Helderman had reviewed Dr. Tisdale’s

deposition, and the article was referred to in Dr. Tisdale’s deposition.

After Crusenberry’s counsel read the third portion of the article and Dr.

Helderman confirmed that he had read it correctly, counsel for Dr. Bathina

objected. Dr. Bathina argued that Dr. Helderman was not a cardiologist and

therefore was not qualified to testify about the contents of the article. He

further argued that the article was not relevant to Dr. Helderman’s testimony

or his qualifications. Crusenberry, on the other hand, argued that Dr.

Helderman produced the article at his deposition, relied upon it, and said it

was an authoritative text, and therefore, Crusenberry could read from the

article. According to Dr. Helderman’s testimony at trial, however, it does not

appear that he actually produced the article at his deposition or that he relied

upon it but that he merely had it in his case file because he reviewed Dr.

8 Dr. Helderman testified that a nephrologist deals with problems of the

kidneys.

28 Tisdale’s deposition and Dr. Tisdale had referred to it. Also, Dr. Helderman

never testified at trial that the article was an authoritative text but merely

stated that Mayo Clinic articles are generally very reliable. The trial court

sustained Dr. Bathina’s objection. Crusenberry’s counsel requested permission

to ask Dr. Helderman what the word “post” means, as that word was used in

one of the portions of the article he had already read aloud, but the trial court

overruled this request.

Crusenberry argues to this Court that she should have been permitted to

read portions of the medical journal article into the record pursuant to KRE

803(18).9 Specifically, she contends that she was prohibited from reading “the

short portion of the journal article which referred to a case study involving a

patient who experienced Takotsubo Syndrome following a cardiac arrest caused

by a QT prolonging medication.” However, Crusenberry was permitted to read

the following sentence before Dr. Bathina’s objection: “Two months before the

event hospitalization, she had developed post-cardiac arrest takotsubo

cardiomyopathy.” This was not stricken from the record by the trial court.

Crusenberry does not point this Court to any other portion of the journal

article that she wished to read into the record that she was not permitted to

9 KRE 803(18) provides an exception to the hearsay rule for learned treatises. It states, “To the extent called to the attention of an expert witness upon cross- examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.” (emphasis added).

29 read. The article itself was admitted as an exhibit by avowal, but there is no

other portion highlighted within the document itself, and Crusenberry does not

cite to any part of the video trial record where she orally stated what other

portion of the article she wished to read.

As previously explained, under KRE 103(a)(2), “to preserve a trial court’s

ruling for appeal, . . . the substance of the excluded testimony must be

provided to the trial court.” Henderson, 438 S.W.3d at 339. In this case,

Crusenberry made no offer of proof regarding which additional portions of the

medical journal article she wished to read aloud during her cross-examination

of Dr. Helderman. Accordingly, this issue was not adequately preserved for

review, and we decline to hold the trial court abused its discretion on this

issue.

B. Testimony Crusenberry argues was improperly admitted

1. Dr. Bathina’s Undisclosed Expert Testimony

Crusenberry claims the trial court erred by permitting expert testimony

by Dr. Bathina. Before trial, Crusenberry deposed Dr. Bathina in the presence

of his own counsel, who did not disclose him as an expert witness. Instead,

that deposition reveals that Dr. Bathina’s counsel sought to elicit only fact

testimony from Dr. Bathina. Dr. Bathina’s counsel indicated that should Dr.

Bathina be listed as an expert, he would provide Crusenberry with the

opportunity to further depose Dr. Bathina. Dr. Bathina was subsequently listed

in Baptist Health’s expert witness disclosure. After several emails back and

forth, Baptist Health and Dr. Bathina’s counsel both declined to provide Dr.

30 Bathina for a further deposition. At a pretrial hearing, the trial court ruled that

Dr. Bathina’s testimony did not qualify as expert testimony because he would

only be testifying to his personal actions, observations, and reasons.

Furthermore, Crusenberry admitted that if the testimony was restricted to that

which was elicited at the deposition, then she was fine with its admission:

Bathina’s counsel: We will not be asking him to give any expert testimony beyond those personally observed.

Trial Court: So you don’t have a problem with that?

Crusenberry’s counsel: Not to that; that’s the rule.

Trial Court: Well, so if they aren’t going to do that, then this motion is moot.

The trial court denied Crusenberry’s motion to exclude Dr. Bathina’s

testimony. A review of the record at trial reveals that Dr. Bathina’s given

testimony did not exceed the scope of his initial deposition with Crusenberry’s

counsel. Baptist Health and Dr. Bathina argue on appeal that Crusenberry was

adequately apprised of Dr. Bathina’s testimony, that Dr. Bathina did not testify

as an expert, and that Crusenberry “sat on her rights” and did not seek to

compel an additional deposition of Dr. Bathina.

To determine whether Dr. Bathina was used as an expert witness, we

first look to the Kentucky Rules of Evidence on opinion testimony by lay

witnesses and on expert testimony. See KRE 701, 702. KRE 701 serves to limit

witnesses not testifying as experts. KRE 702 outlines the appropriate bases for

expert testimony. When distinguishing between lay and expert testimony, “the

key question . . . is whether [the witness] rendered any opinions that could be

31 deemed ‘expert opinions’”—that is to say, whether a witness’s testimony is

based on personal observation or in a pure reliance on experience and

research. Khani v. Alliance Chiropractic, 456 S.W.3d 802, 807 (Ky. 2015).

Therefore, the character of the evidence “is determined not by asking whether

the witness is lay or expert, but, instead, by asking whether the testimony to be

offered is lay.” KRE 701 n.1 (Ev. Rules Rev. Comm’n).

In McDaniel v. Commonwealth, where a non-party doctor gave opinion

testimony regarding two issues after discussing his credentials and experience

as a medical professional, this Court determined he acted as an expert witness.

415 S.W.3d 643, 655 (Ky. 2013). However, the Court held that although the

doctor acted as an expert, he sufficiently supported his opinion as required by

KRE 702, and therefore there was no error. Id. Two years later, in Khani v.

Alliance Chiropractic, this Court held that a chiropractor testifying about the

nature and extent of his own chiropractic-related injuries was lay testimony

because it stemmed from “Dr. Khani’s perceptions of his condition,” even

though his “perceptions are necessarily filtered through his training and

expertise.” 456 S.W.3d at 807, 808.

Like Dr. Khani, Dr. Bathina is a party to this action. Dr. Bathina’s

testimony reveals that he spoke primarily regarding his actions and beliefs

stemming from his own experience of the matter being litigated, although, as

we recognized in Khani, that experience is necessarily mediated by his own

training and experience. Further, even if Dr. Bathina’s testimony had been that

of an expert, by establishing his credentials (as the doctor did in McDaniel), a

32 trial court could have found that Crusenberry’s rights were not violated by his

testimony for violation of KRE 702.

We find no error in the trial court’s pretrial reasoning, given

Crusenberry’s initial access to Dr. Bathina and the testimony ultimately

delivered at trial. “The decision to qualify a witness as an expert rests in the

sound discretion of the trial court.” Kemper v. Gordon, 272 S.W.3d 146, 154

(Ky. 2008) (citation omitted). Absent abuse of discretion, we find no error.

2. Baptist Health’s and Dr. Bathina’s Expert Witnesses’ Undisclosed Testimony

Crusenberry next argues that the trial court erred in allowing Dr. Katz

and Dr. Stacy to give undisclosed expert testimony. At trial, both expert

witnesses admitted to testifying to opinions they had developed only one day

prior to their testimony. The first, Dr. Katz, testified that admitting

Crusenberry to a nursing home or facility would cost approximately $80,000

annually, whereas hiring a licensed nurse as an aid for Crusenberry would cost

approximately $120,000. Dr. Katz did not disclose these numbers prior to trial

because he had calculated them based off current rates the day before he was

called to testify. However, as Baptist Health’s damages expert, Dr. Katz’s

disclosure did state that he would testify to “Ms. Crusenberry’s professional

needs.”

The second witness, Dr. Stacy, reviewed various echocardiograms during

his testimony. Previously, he stated that his opinions had been based on

written reports only. He had gained access to the images the day before he was

called to testify, and so his image-based interpretations were developed after 33 his deposition was taken. However, at his deposition, Dr. Stacy told

Crusenberry that he would review the echocardiograms before trial. Dr. Stacy’s

opinions did not change as a result of having the images.10

In her reply brief to this Court, Crusenberry concedes that because

“these undisclosed opinions involve causation and damages, [] any error would

likely be harmless error.” Given this concession and our holdings that no other

issues raised reversible error, we decline to address the merits of this

argument, as any error, if it exists, would be harmless, since the jury never

reached the issues of causation or damages.

C. Jury Instruction

Crusenberry next argues that the trial court’s jury instruction regarding

the duty Baptist Health owed to Crusenberry improperly limited and

prejudicially misstated the hospital’s legal duty. Crusenberry tendered and

requested the following jury instruction regarding the hospital’s duty: “It was

the duty of the defendant, Baptist Health and its employees to exercise towards

Kali Crusenberry that degree of care and skill ordinarily expected of reasonable

and prudent hospitals under similar circumstances.” Baptist Health argued to

the trial court that the instruction should include the phrase “by and through

its nursing staff,” as Crusenberry’s proof only bore on the actions of the

nurses. The instruction eventually given to the jury by the trial court was as

follows, “It was the duty of the Defendant, Baptist Healthcare System, Inc.,

10 Additionally, Crusenberry’s own expert witness, Dr. Charash, had not viewed

the echocardiograms at his deposition but testified regarding the images at trial.

34 d/b/a Baptist Health Corbin, to exercise toward Kali Crusenberry that degree

of care and skill ordinarily expected of reasonable and prudent hospitals by

and through its nursing staff, under similar circumstances.” Crusenberry

claims that this jury instruction improperly “limited the jury’s consideration of

the evidence and prohibited the jury from considering the full scope of the

hospital’s duty.”

Crusenberry further argues that this Court should review the jury

instructions de novo while Baptist Health argues the instruction should be

reviewed for abuse of discretion. In Sargent v. Shaffer, 467 S.W.3d 198, 202–04

(Ky. 2015), we explained that there are two types of instructional errors and

that each type is reviewed under a different standard. When the alleged error is

that a trial court either gave an instruction that was not supported by the

evidence or failed to give an instruction that was required by the evidence, the

correct standard of review is abuse of discretion. Id. at 203. This is because the

decision to give or to decline to give a particular jury instruction inherently requires complete familiarity with the factual and evidentiary subtleties of the case that are best understood by the judge overseeing the trial from the bench in the courtroom. Because such decisions are necessarily based upon the evidence presented at the trial, the trial judge’s superior view of that evidence warrants a measure of deference from appellate courts that is reflected in the abuse of discretion standard.

Id. However, when the alleged error is that the text of the jury instruction did

not accurately present the applicable legal theory, we review the instruction de

novo. Id. at 204. This is because “the trial court has no discretion to give an

instruction that misrepresents the applicable law.” Id.

35 Although we conclude that the error alleged in this case is whether the

evidence supported an instruction regarding the hospital’s independent

negligence more broadly than just through the conduct of the nursing staff,

which thereby mandates an abuse of discretion standard of review, we feel

compelled to address Crusenberry’s claim that the instruction as given by the

trial court did not comply with this Court’s bare bones jury instruction

jurisprudence.

This Court and its predecessor Court have long held that jury

instructions “should provide only the bare bones, which can be fleshed out by

counsel in their closing arguments.” Cox v. Cooper, 510 S.W.2d 503, 535 (Ky.

1974). In Rogers v. Kasdin, heavily relied upon by Crusenberry, we applied this

rule to a jury instruction regarding a hospital’s duty to a patient. 612 S.W.2d

133 (Ky. 1981). In that case, the trial court not only instructed the jury that the

hospital had a duty “to exercise that degree of care ordinarily used by hospitals

under circumstances like or similar to those shown in this case” but also

instructed the jury that the hospital had six additional and detailed duties. Id.

at 135. As an example, one of the six additional duties that the trial court

instructed the jury was owed to hospital patients was the duty to “[m]aintain

procedures appropriate and adequate to determine whether the nurses and the

staff of the hospitals were maintaining adequate medical records which would

enable the patient to receive effective continuing care as would enable a

physician or other practitioner to assume the care of the patient at any time.”

Id. at 135–36.

36 We reiterated that jury instructions “should not contain an abundance of

detail” and held that the instruction given to the jury in that case was

“improper and prejudicial,” warranting reversal. Id. at 136. We noted two

primary concerns with the amount of detail provided in the jury instruction.

First, the instruction gave “undue prominence to facts and issues,” and

second, “[t]he effect of the instruction was to demand more of the hospital than

the law requires.” Id. (citations omitted). We then provided “[a] more

satisfactory instruction on the issue of the hospital’s duty of ordinary care”:

It was the duty of the defendant [hospital] and its employes [sic] to exercise toward [the plaintiff] that degree of care and skill ordinarily expected of reasonable and prudent hospitals under similar circumstances. If you are satisfied from the evidence that they failed to comply with that duty and that such failure on their part was a substantial factor in causing the death of [the plaintiff], you will find for the plaintiff against [the hospital]; otherwise you will find for [the hospital].

Id. Although we described this instruction as “more satisfactory,” we did not

state that it was the only acceptable instruction regarding a hospital’s duty of

care.

The instruction given by the trial court in the case at bar did not

implicate the two concerns as described by the Rogers Court. Merely adding the

phrase “by and through its nursing staff” to the instruction propounded by the

Rogers Court did not give “undue prominence to facts and issues” and did not

“demand more of the hospital than the law requires.” See id. Instead, the

inclusion of that phrase tailored the instruction to the proof as presented at

trial and did not violate our bare bones jury instruction jurisprudence.

37 Having determined that the instruction accurately presented the law to

the jury, we must determine whether the trial court abused its discretion in

limiting the instruction to the nurses’ actions based on the proof at trial. We

hold that it did not.

Crusenberry argues, in essence, that the hospital, as a brick and mortar

institution, independently breached the duty of care it owed to Crusenberry.

“The trial court must instruct the jury upon every theory reasonably supported

by the evidence.” Sargent, 467 S.W.3d at 203. However, a party is only “entitled

to an instruction upon his theory of the case if there is evidence to sustain it.”

Id. (citation omitted). Although it is “perfectly acceptable” for the giving of an

instruction to “rest[] largely upon inferences and circumstantial evidence,”

Univ. Med. Ctr., Inc. v. Beglin, 375 S.W.3d 783, 792 (Ky. 2011), there still must

be sufficient evidence elicited upon which a jury can make reasonable

inferences. In this case, it was not an abuse of discretion for the trial court to

conclude that insufficient evidence existed upon which the jury could

reasonably infer that Baptist Health breached its duty to Crusenberry in any

way other than through its nursing staff.

“Under Kentucky law, a plaintiff alleging medical malpractice is generally

required to put forth expert testimony to show that the defendant medical

provider failed to conform to the standard of care.” Blankenship v. Collier, 302

S.W.3d 665, 670 (Ky. 2012) (citing Perkins v. Hausladen, 828 S.W.2d 652, 655–

56 (Ky. 1992)). Crusenberry focused the presentation of her case on the alleged

negligence of the nurses as presented through the expert testimony of Dr.

38 Laura McIlvoy. Dr. McIlvoy testified that the nurses in question violated five

hospital policies and failed to adequately follow doctors’ orders three times.

Crusenberry points to absolutely no testimony regarding the standard of

care the hospital was required to meet nor testimony that clearly stated the

hospital failed to meet that standard of care.11 Instead, she argues that the

nurses’ violations of the hospital’s policies and procedures allowed for an

inference that the hospital breached its duty. However, this Court has

previously held that a hospital’s internal policies and procedures, in and of

themselves, do not establish the standard of care. See Lake Cumberland Reg’l

Hosp., LLC v. Adams, 536 S.W.3d 683, 696 (Ky. 2017). Crusenberry offered no

testimony that indicated whether Baptist Health’s policies and procedures were

equivalent to the “degree of care and skill ordinarily expected of reasonable and

prudent hospitals under similar circumstances” or higher or lower than this

standard of care. Without this testimony, Crusenberry failed to produce

evidence to support her theory that the hospital violated its duty to her

separate from the actions of the nurses. Accordingly, the trial court did not

abuse its discretion in limiting the jury instruction to the nurses’ conduct.

11 We note that this was an eleven-day jury trial. Kentucky Rule of Civil Procedure 76.12(4)(c)(v) requires a party include “ample supportive references to the record” in the argument section of her brief. As such, we focused our review on the portions of the trial cited in Crusenberry’s brief in support of her argument but went beyond such as necessary.

39 D. Cumulative Error

After thorough review of each claim presented to this Court, we have

found no prejudicial errors. Accordingly, we find no cumulative error worthy of

reversal. See Brown, 313 S.W.3d at 631 (holding that where “none of the errors

individually raised any real question of prejudice,” there is no cumulative

error).

IV. CONCLUSION

For the foregoing reasons, we affirm the Court of Appeals.

Minton, C.J.; Conley, Hughes, and VanMeter, JJ., concur. Lambert, J.,

concurs in part and dissents in part without opinion. Nickell, J., not sitting.

40 COUNSEL FOR APPELLANTS, KENTUCKY GUARDIANSHIP ADMINISTRATORS, LLC, AS CONSERVATOR FOR KALI CRUSENBERRY; AND LOUISE YOUNT, AS GUARDIAN FOR KALI CRUSENBERRY:

Richard Wayne Hay Sarah Hay Knight Hay & Knight, PLLC

COUNSEL FOR APPELLEE, BAPTIST HEALTHCARE SYSTEM, INC. D/B/A BAPTIST HEALTH CORBIN:

Melanie Sublett Marrs Kinkead & Stilz, PLLC

Justin Tyler Baxter Quintairos Prieto Wood & Boyer, PA

Wesley Ray Tipton Tipton & Tipton Attorneys

Andrew C. Efaw Wheeler Trigg O’Donnell, LLP

COUNSEL FOR APPELLEES, APOGEE MEDICAL GROUP, KENTUCKY, P.S.C. AND SUBHOSE BATHINA, M.D.:

Mark Edward Nichols Jeffrey Alan Darling Nichols Walter, PLLC

Elizabeth Anne Arrick Casey Bailey & Maines, PLLC