RENDERED: FEBRUARY 21, 2025; 10:00 A.M. TO BE PUBLISHED
OPINION OF DECEMBER 6, 2024, WITHDRAWN
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 -2- unresponsive in his home. He was admitted to Appalachian Regional Healthcare,
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
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 Select Specialty Hospital in Lexington, Kentucky. Billy was then
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
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- (“Hospitalists”). Dr. Amr Mohamed is a nephrologist. Finally, Dr. Rafiqul Alam
is a pulmonologist.
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
4 Complaint with Demand for Trial by Jury, Record at 1-21. -5- 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
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,
5 Exhibit 1, Motion to Compel, Record at 757-58. -6- held in late February 2023, Mullins finally served her expert disclosures, along
with her response to the motions for summary judgment.
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
-7- 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
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).
-8- “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
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).
-9- 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
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
-10- 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).
“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.
-11- 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).
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
-12- 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
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
6 Report of Thomas W. Miller, M.D., FHM, Record at 1285. -13- 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.
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
-14- 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
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 and inactions
that the expert believes violated the applicable standard of care, specifically in the
context of prevention and treatment of bedsores. As to causation, the expert
opined that Billy died as a result of bacterial sepsis. The area where the port had
been placed for dialysis was clearly infected. The port was impacted by an
advanced bedsore located in the same area.
Still, the expert must tie the breaches and even cause in fact of an
injury with an opinion of proximate causation. To survive summary judgment, the
expert must at least state that the breaches of the standard of care caused the injury
within a medical degree of medical probability. See Rogers v. Sullivan, 410
-15- S.W.2d 624, 628 (Ky. 1966). In this case, the expert offered the arguably higher
level of medical certainty:
Lastly, it would appear to a reasonable degree of medical certainty that the hospital admission of Mr. Mullins at Hazard ARH from 4-22 February 2019 had set the foundation for the future multiple complications at multiple facilities ultimately leading to his death. The inaccurate and frankly false daily documentation, lack of meticulous daily physical examinations, inadequate care as described above, and inappropriate transfer to Corbin LTAC were all markedly below the standard of care. Measure [sic] such as the following were not administered (per the records provided for my review) and would have to a reasonable degree [of] medical certainty altered the further deterioration after transfer to multiple hospitals and the ultimate death of the patient.
While we have quoted at some length from the expert report, we note the
importance of reviewing a report in its entirety, rather than selecting specific
phrases, when the causation opinion is being evaluated. The expert opinion at
issue is four pages in length, single spaced, and contained numerous specific and
troubling comments about the care provided by the Hospitalists.
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 -16- 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.” -17- 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
-18- BRIEF FOR APPELLEE RAFIQUL ALAM, M.D.:
Katherine Kerns Vesely Louisville, Kentucky
-19-