Mary Mullins, Individually and as Administrator of the Estate of Billy Mullins v. Arden Acob

• Court: Court of Appeals of Kentucky
• Decided: December 6, 2024
• Docket: 2023-CA-1490
• Status: Published

Opinion

RENDERED: DECEMBER 6, 2024; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2023-CA-1490-MR

MARY MULLINS, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF BILLY MULLINS APPELLANT

APPEAL FROM PERRY CIRCUIT COURT v. HONORABLE JAMES W. CRAFT, II, SPECIAL JUDGE ACTION NO. 20-CI-00127

APPALACHIAN REGIONAL HEALTHCARE, INC. D/B/A HAZARD ARH; AMR MOHAMED, M.D.; RAFIQUL ALAM, M.D.; SRINIVASA APPAKONDU, M.D.; NAGESWARA R. PODAPATI, M.D.; JOHN B. WILLIAMS, APRN; ASHLEY B. ELSWICK, APRN; JEFFREY CHASE CORNETT, D.O.; VERONICA CAUDILL-ENGLE, D.O.; AND STACIE RITCHIE, PA-C APPELLEES OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

** ** ** ** **

BEFORE: CETRULO, COMBS, AND EASTON, JUDGES.

EASTON, JUDGE: The Appellant, Mary Mullins (“Mullins”), individually and as

the Administrator of the Estate of Billy Mullins, appeals from the Perry Circuit

Court’s Orders granting Summary Judgment to the Appellee medical providers.

The circuit court held that Mullins did not present evidence of medical negligence

against the medical providers because she failed to produce adequate expert

testimony. Having reviewed the record and the applicable law, we affirm

summary judgment as to Srinivasa Appakondu, M.D.; Nageswara R. Podapati,

M.D.; John B. Williams, APRN; Ashley Elswick, APRN; Amr Mohamed, M.D.;

Rafiqul Alam, M.D.; and Appalachian Regional Healthcare, Inc., d/b/a Hazard

ARH, but we reverse and remand for further proceedings as to Jeffrey Chase

Cornett, D.O.; Veronica Caudill-Engle, D.O.; and Stacie Ritchie, PA-C.

FACTUAL AND PROCEDURAL HISTORY

Mullins was married to Billy Mullins (“Billy”). Billy, age 67,

suffered from a variety of medical ailments, including obesity, diabetes, chronic

atrial fibrillation, seizure disorder, chronic obstructive pulmonary disease

(“COPD”), and diastolic heart failure. On February 1, 2019, he was found

unresponsive in his home. He was admitted to Appalachian Regional Healthcare, -2- Inc., d/b/a Hazard ARH (“Hazard ARH”) after being transferred from another

medical facility. Billy was in cardiac arrest when found, and he had been revived

and intubated at the previous facility.

Billy was at Hazard ARH from February 1 through February 22,

2019. He remained on a ventilator until February 16 but then had to be re-

intubated on February 21. During his time at Hazard ARH, Billy suffered from

pneumonia, congestive heart failure, renal failure, tachycardia, anemia, and the

development of decubitus ulcers.1

On February 22, 2019, Billy was transferred to Baptist Health Corbin

Long Term Acute Care Hospital (“LTAC”). While at LTAC, his condition

worsened. Billy’s renal failure progressed, requiring him to undergo dialysis. He

also received placements of both a tracheostomy tube and a gastrostomy tube.

Billy was transferred from LTAC to Baptist Health Lexington

Hospital (“Baptist”) on March 17, 2019. Billy had developed bacterial sepsis,

allegedly from an infected dialysis catheter. While at Baptist, stage 3 decubitus

ulcers2 were documented. He remained at Baptist until April 2, 2019, when he was

transferred to Select Specialty Hospital in Lexington, Kentucky. Billy was then

1 Commonly referred to as “bedsores” or “pressure sores.” 2 At this stage, the sore has progressed past the skin and into deeper tissue and fat and poses a high risk of infection. -3- transferred to Salyersville Nursing Home on May 10, where he stayed until May

14. He was then emergently transferred to Paul B. Hall Regional Medical Center

on May 14, then immediately to Pikeville Medical Center. Billy passed away at

Pikeville Medical Center on May 16, 2019. He essentially died of multiorgan

failure due to sepsis.

A medical malpractice suit was filed on February 3, 2020, by Billy’s

widow, Mullins. Mullins named forty-two defendants, both individual medical

practitioners and medical facilities. Mullins also named “unknown defendants”

working at the various medical facilities. A much smaller number remains as

Appellees, as many defendants were dismissed for improper venue,3 as they did not

reside or provide care to Billy in Perry County.

The remaining defendants and now Appellees can be placed into a few

categories. First, the facility Hazard ARH was named. Next is a group consisting

of Dr. Srinivasa Appakondu, Dr. Nageswara R. Podapati, APRN John B. Williams,

and APRN Ashley Elswick (“Cardiology defendants”). The next group contains

Dr. Jeffrey Chase Cornett, Dr. Veronica Caudill-Engle, and PA-C Stacie Ritchie

(“Hospitalists”). Dr. Amr Mohamed is a nephrologist. Finally, Dr. Rafiqul Alam

is a pulmonologist.

3 See Copass v. Monroe County Medical Foundation, Inc., 900 S.W.2d 617 (Ky. App. 1995) (in a medical malpractice case, proper venue requires that, as to each defendant, the county where the suit is filed is the county of residence of the defendant or the place of injury). -4- The allegations in the Complaint are essentially repeated block quotes

with a given defendant plugged in:

That [Defendant] has held itself out to the general public as an exceptional medical care provider. The [Defendant] failed to provide said exceptional medical care to Plaintiff, Billy Mullins.

That at all times relevant herein, the Plaintiff, BILLY MULLINS, was a patient of [Defendant]. The Defendant negligently and/or recklessly failed to meet the healthcare obligations of Plaintiff, BILLY MULLINS.

That as a direct and proximate result of the [Defendants] negligent and/or reckless conduct, the Plaintiff, BILLY MULLINS, died.[4]

No additional facts or details were alleged in the Complaint. Several

defendants for whom venue was proper filed motions to dismiss on various

grounds, including failure to state a claim, failure to satisfy notice pleading

standards, ineffective service, and statute of limitations.

The case progressed little over the first year. The Appellees filed

multiple rounds of motions for summary judgment, most of them based on the lack

or insufficiency of Mullins’s disclosures of expert witnesses. Some Appellants

filed motions to compel, asking the circuit court to require Mullins to specify what

actions of the Appellees were negligent. For example, one such motion to compel

4 Complaint with Demand for Trial by Jury, Record at 1-21. -5- was filed in September 2021, after Appellees received the following answers to

interrogatories:

INTERROGATORY NO. 3: State specifically and in detail your allegations against [Defendant], including but not limited to each and every act or omission by [Defendant], that you allege was negligent, careless, reckless, improper, or a deviation from the standard of care relative to the care or treatment of Billy Mullins as alleged in the Complaint, and any alleged causal connection to the injuries claimed in the Complaint. . . .

ANSWER: Plaintiff herein is not a physician and cannot testify as to medical procedures; however, Plaintiff hereby refers counsel to the medical records of the decedent, Billy Mullins. Discovery is ongoing, and Plaintiff’s experts have yet to be deposed.[5]

The circuit court entered a scheduling order on January 10, 2022,

requiring Mullins to disclose her expert witnesses by November 14, 2022. After a

status conference in August 2022, the circuit court entered a subsequent order,

extending Mullins’s expert disclosure deadline to January 15, 2023. Mullins did

not provide any expert information by that later date. Again, Appellees filed

motions for summary judgment. The day prior to the hearing on these motions,

held in late February 2023, Mullins finally served her expert disclosures, along

with her response to the motions for summary judgment.

5 Exhibit 1, Motion to Compel, Record at 757-58. -6- Mullins’s tardy expert disclosure identified four experts: an infectious

disease physician, a nephrologist, an internal medicine physician, and a nursing

expert. Her disclosure attached reports from the three physicians but not the

nursing expert. She later served an amended disclosure in which the nursing report

was attached. Defendants renewed their motions for summary judgment, as they

deemed Mullins’s disclosures insufficient.

In August 2023, the circuit court granted the motions for summary

judgment. It appears that the circuit court signed a tendered order. The basis of

the summary judgment was that Mullins’s expert disclosures lacked the requisite

expert opinion to prove either breach of the standard of care or causation of injury

for any of the Appellees. The Order further stated that Mullins had failed to

comply with the previous court order to disclose her experts by January 15, and the

circuit court found no excusable reason for her failure to do so. The court

subsequently denied Mullins’s motion to alter, amend, or vacate. This appeal

followed.

STANDARD OF REVIEW

“The standard of review of a trial court’s granting of summary

judgment is whether the trial court correctly found that there were no genuine

issues as to any material fact and that the moving party was entitled to judgment as

a matter of law. Summary judgment is proper when it appears that it would be

-7- impossible for the adverse party to produce evidence at trial warranting a judgment

in its favor.” Andrew v. Begley, 203 S.W.3d 165, 169 (Ky. App. 2006) (internal

quotation marks and citations omitted). “Because summary judgment involves

only legal questions and the existence of any disputed material issues of fact, an

appellate court need not defer to the trial court’s decision and will review the issue

de novo.” Jenkins v. Best, 250 S.W.3d 680, 688 (Ky. App. 2007).

Thus, even though an appellate court always reviews the substance of a trial court’s summary judgment ruling de novo, i.e., to determine whether the record reflects a genuine issue of material fact, a reviewing court must also consider whether the trial court gave the party opposing the motion an ample opportunity to respond and complete discovery before the court entered its ruling. In a medical malpractice action, where a sufficient amount of time has expired and the plaintiff has still “failed to introduce evidence sufficient to establish the respective applicable standard of care,” then the defendants are entitled to summary judgment as a matter of law. The trial court’s determination that a sufficient amount of time has passed and that it can properly take up the summary judgment motion for a ruling is reviewed for an abuse of discretion.

Love v. Walker, 423 S.W.3d 751, 756-57 (Ky. 2014).

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

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

Woodard v. Commonwealth, 147 S.W.3d 63, 67 (Ky. 2004).

ANALYSIS

As a preliminary matter, several Appellees have noted that Mullins’s -8- brief does not comply with the Kentucky Rules of Appellate Procedure (“RAP”).

It lacks a preservation statement, which is required by RAP 32(A)(4), and it does

not contain a single citation to the record as required by RAP 32(A)(3). While no

Appellee has explicitly requested that this Court strike the brief and dismiss the

appeal, it would be within our discretion to do so. See Commonwealth v. Roth, 567

S.W.3d 591, 593 (Ky. 2019). Dr. Alam has asked that we review for palpable error

only, as Mullins did not illustrate if and where the issues were preserved for our

review.

“When an appellate advocate fails to abide by the appellate briefing

rules, this Court has the option to: (1) ignore the deficiency and proceed with the

review; (2) strike the brief or its offending portions; or (3) to review the issues

raised in the brief for manifest injustice only, if the briefing deficiency pertains to

the appellant’s statement of preservation of error.” Swan v. Gatewood, 678 S.W.3d

463, 469 (Ky. App. 2023) (citation omitted), review denied (Dec. 6, 2023).

However, “how to proceed in imposing such penalties is a matter committed to our

discretion.” Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007).

The sparse Appellant brief still makes it clear that the objection to the

summary judgment was because the expert disclosures were sufficient. And the

briefs in response also address this issue. The review of these expert reports is not

onerous, and we also note an overlooked concession in the record, which we will

-9- address later, and which merits consideration. We will with some reluctance

disregard the briefing failures and proceed with our review.

Mullins argues the circuit court erred in granting summary judgment

because the expert testimony she provided was adequate to create a genuine issue

of material fact. She argues her experts were qualified to render a medical opinion

that the care Billy received violated the standard of care and caused his injuries.

In a medical negligence case, a plaintiff must prove the applicable

medical standard of care, a breach of that care, and an injury resulting from that

breach of care. Blankenship v. Collier, 302 S.W.3d 665, 675 (Ky. 2010). In order

to survive summary judgment, a plaintiff must present a genuine issue of material

fact for every element. See Andrew v. Begley, supra, at 170.

A party’s “burden of proof at the trial is greater than merely proving a

negligent act followed by injury. There must be proof that the negligent act was

the proximate cause of the injury. Negligence in medical malpractice cases must

be established by expert testimony unless negligence and injurious results are so

apparent that a layman with general knowledge would have no difficulty

recognizing it.” Morris v. Hoffman, 551 S.W.2d 8, 9 (Ky. App. 1977) (citations

omitted). “[T]he medical testimony must be that the causation is probable and not

merely possible.” Id. Negligence cannot be assumed merely from a poor outcome

of a patient. Meador v. Arnold, 94 S.W.2d 626, 631 (Ky. 1936).

-10- “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, supra, at 670.

“[T]he lack of expert testimony is truly a failure of proof [for which] a summary

judgment is appropriate.” Adams v. Sietsema, 533 S.W.3d 172, 177 (Ky. 2017)

(internal quotation marks and citation omitted).

In order to survive summary judgment, Mullins had to disclose her

experts, and the basis of their opinion. Kentucky Rules of Civil Procedure (“CR”)

26.02(4)(a)(i) states:

A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

It is not the qualifications of Mullins’s experts that are at issue in this

matter but rather the adequacy of their opinions. “A generalized statement

outlining a broad subject matter about which an expert may testify does not

sufficiently apprise the other party of the information needed to prepare for trial as

contemplated and mandated by the notice requirements of CR 26.02(4)(a).”

Clephas v. Garlock, Inc., 168 S.W.3d 389, 393-94 (Ky. App. 2004) (emphasis in

original).

-11- We must remember that from his initial admittance to the hospital to

his death, Billy was treated by many medical professionals in multiple medical

facilities. At the time of summary judgment, there were still nine individual

medical practitioners and one hospital named as defendants. To prove liability,

Mullins must show that each defendant both violated the standard of care and that

the violation caused Billy’s injuries. Jewish Hospital & St. Mary’s Healthcare,

Inc. v. House, 563 S.W.3d 626, 631 (Ky. 2018). Therefore, in order to survive a

summary judgment motion by each defendant, Mullins had to disclose expert

testimony that was specific to each defendant. To analyze further, we must look at

what Mullins’s experts actually stated in their reports.

As previously referenced, Mullins produced reports of four purported

medical experts. Three of these four reports do not reference any of the individual

medical practitioner Appellees by name or by specialty. These three reports make

very general statements that there was a violation of standards of care. For

example, in the report by Mullins’s internal medicine expert, it states “it is my

preliminary opinion that [Hazard ARH], its staff, including nursing staff, and all

other defendants failed to comply with the applicable standards of care in the

treatment of Mr. Mullins, contributing to his poor recovery from his illness.”6

6 Report of Thomas W. Miller, M.D., FHM, Record at 1285. -12- These types of statements are insufficient to meet the requirements of CR 26.02.

See Meade v. Dvorak, 571 S.W.3d 585, 588 (Ky. App. 2018).

Mullins repeatedly argues that the reports state “all defendants”

violated the standard of care, and this is sufficient to overcome summary judgment

for all Appellees. This broad statement is inadequate. See Savage v. Three Rivers

Medical Center, 390 S.W.3d 104, 118-19 (Ky. 2012). In order to defeat summary

judgment against a particular defendant, an expert must state that defendant

breached the standard of care and that breach led to the injury. CertainTeed Corp.

v. Dexter, 330 S.W.3d 64, 74 (Ky. 2010).

Even reading the experts’ reports very generously, they make no

particularized statement that the Cardiology defendants, Dr. Mohamed (a

nephrologist), or Dr. Alam (a pulmonologist) breached any standard of care.

Likewise, while the nursing expert makes general statements that the nursing staff

at Hazard ARH violated the standard of nursing care, she did not make any

references as to causation of Billy’s injuries and subsequent death. She also did

not mention any specific nurse, any specific wrongdoing, or a particular timeframe

in which these errors occurred. It is clear these Appellees were entitled to

summary judgment, as Mullins was unable to raise a genuine issue of material fact

as to these Appellees.

-13- Mullins insists it was Appellees’ duty to take her experts’ depositions

prior to the granting of any summary judgment. There is no such rule. It is not the

duty of defendants to undergo considerable expense and inconvenience to flesh out

obviously inadequate expert disclosures by taking depositions.

The Appellees had been requesting more specific details of Mullins’s

allegations of negligence since the filing of the Complaint, and no further details

were provided until Mullins filed her late expert disclosure. The circuit court did

not entertain summary judgment until three years after the case was filed. While

Mullins did finally file an expert disclosure, she did so approximately a month

after the circuit court’s order required her to do so.

We note that the summary judgment stated that the failure to disclose

by the January 15 deadline was one reason for granting the summary judgment.

We need not address the discretion of the circuit court to dismiss for failure to

abide by a proper deadline. The record here clearly shows that the circuit court

gave Mullins more time to provide the disclosures and encouraged

supplementation. Because of this extension, it was no longer appropriate to

enforce the deadline.

On this record, it was not an abuse of discretion by the circuit court to

grant summary judgment when it did. “The discovery of the substance of an expert

witness’s expected testimony is essential to trial preparation.” Clephas, supra, at

-14- 394. The statements provided were not adequate for most of the Appellees, against

whom no specific criticism was stated, to prepare a defense for trial, and the circuit

court had given Mullins more than enough time to provide this information.

While most of the Appellees were not specifically referenced in any

expert report, the report by Mullins’s nephrology expert does specifically refer to

the care provided by named Hospitalists and notes particular actions that he

believes violated the applicable standard of care. This report indicates

discrepancies made in notes and statements involving skin inspections of Billy,

suggesting falsification of medical records. Records clearly indicate that Billy had

decubitus ulcers on several areas of his body that were not documented by the

Hospitalists while Billy was at Hazard ARH. The nephrology expert indicates that

an infected decubitus ulcer near the site of Billy’s dialysis catheter insertion may

have been the cause of the infection in the catheter that led to sepsis.

We do not envy Mullins’s task to establish causation with the

extensive history of Billy’s complex treatment by numerous medical providers in

multiple facilities. But the overall opinions rendered in one expert report are

sufficient to create a genuine issue of material fact as to the Hospitalist Appellees.

It is noteworthy that counsel for the Hospitalists during the final hearing on the

motions for summary judgment basically conceded that there was adequate expert

-15- disclosure to move forward against the Hospitalists.7 We therefore reverse the

summary judgment granted to the Hospitalists only, and remand for further

proceedings against those Appellees.

CONCLUSION

Because Mullins presented adequate expert testimony to create a

genuine issue of material fact regarding the Hospitalist Appellees, we REVERSE

and REMAND as to those Appellees. As for the remaining Appellees, we

AFFIRM the orders of the Perry Circuit Court granting summary judgment.

ALL CONCUR.

7 Hearing of July 27, 2023 at 10:56:50: “I am just interested in a ruling on this – these folks, I’m in it for the long haul, these folks are hoping to get out. I just want to keep the case moving, and so I would appreciate a ruling on this. I think we all would, just so the folks that are definitely going to stay in so we can keep advancing with the experts’ discovery.” -16- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES SRINIVASA APPAKONDU, M.D.; Glenn M. Hammond NAGESWARA R. PODAPATI, M.D.; Pikeville, Kentucky JOHN B. WILLIAMS, APRN; AND ASHLEY ELSWICK, APRN:

Kenneth Williams, Jr. Dustin C. Haley Ashland, Kentucky

BRIEF FOR APPELLEE APPALACHIAN REGIONAL HEALTHCARE, INC. D/B/A HAZARD ARH:

John O. Hollon Chadwick A. Wells Betsy R. Catron Lexington, Kentucky

BRIEF FOR APPELLEES JEFFREY CHASE CORNETT, DO; STACIE RITCHIE, PA-C; AND VERONICA CAUDILL-ENGLE, DO:

Stephen S. Burchett Michael G. Erena Lexington, Kentucky

BRIEF FOR APPELLEE AMR MOHAMED, M.D.:

Clayton L. Robinson Shannon M. Naish Lexington, Kentucky

-17- BRIEF FOR APPELLEE RAFIQUL ALAM, M.D.:

Katherine Kerns Vesely Louisville, Kentucky

-18-