RENDERED: AUGUST 29, 2019 TO BE PUBLISHED
2018-SC-000276-DG
ASHLAND HOSPITAL CORPORATION APPELLANT D/B/A KING’S DAUGHTERS MEDICAL CENTER
ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2015-CA-001750-MR BOYD CIRCUIT COURT NO. ll-CI-01223
PAUL WESLEY LEWIS, M.D. AND DAVID APPELLEES SHACKELFORD
AND
2018-SC-000279-DG
PAUL WESLEY LEWIS, M.D. APPELLANT
ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2015-CA-001750-MR BOYD CIRCUIT COURT NO. ll-CI-01223
DAVID SHACKELFORD; AND APPELLEES ASHLAND HOSPITAL CORPORATION D/B/A KING’S DAUGHTERS MEDICAL CENTER
OPINION OF THE COURT BY JUSTICE KELLER
REVERSING AND REINSTATING The Boyd Circuit Court granted summary judgment in favor of Dr. Paul
Wesley Lewis and Ashland Hospital Corporation d/b/a King’s Daughters
Medical Center (“KDMC”) after finding that the complainant, David
Shackelford, could not establish a prima facie case of negligence. More
specifically, the trial court found that the proffered expert testimony failed to
establish that any negligence on the part of the doctor or hospital was a
substantial factor in causing injury to Shackelford. The Court of Appeals
reversed, finding that expert testimony was not required to establish causation
in this case. Dr. Lewis and KDMC then sought discretionary review, which this
Court granted. Having reviewed the record and the applicable law, we now
reverse the holding of the Court of Appeals and reinstate the Boyd Circuit
Court’s summary judgment order.
I. BACKGROUND
In 2010, Shackelford’s rheumatologist referred him to Dr. Lewis, an
interventional radiologist, for a four-vessel cerebral angiogram to assist with
diagnosing the cause of Shackelford’s chronic headaches. Dr. Lewis performed
the angiogram at KDMC on December 20, 2010. No complications arose
during the procedure. Dr. Lewis then conducted a post-procedure assessment
but did not note any concerns. Rather, Dr. Lewis noted, Shackelford “was
normal conversant, no problems, no complaints, no weakness, no visual field
changes.”
2 Later, while in the post-op recovery room, Shackelford reported a frontal
headache and scotoma, or spots in his field of vision.1 The aforementioned
symptoms may indicate a stroke but are also not uncommon after an
angiogram.2 A nurse reported these conditions to Dr. Lewis, who was
performing another medical procedure at the time. He asked if any other
problems had arisen, such as weakness, but the nurse reported that the spots
were the only issue at that time. Dr. Lewis instructed the nurse to keep him
informed of any changes. Later, after calling to check on Shackelford, Dr.
Lewis was told that the scotoma had resolved, but Shackelford now had a
headache. According to Dr. Lewis, he had no other visual changes, weakness,
slurred speech, or facial palsies. Given Shackelford’s history of headaches and
the possibility that the angiogram triggered a migraine, Dr. Lewis prescribed
pain medication. When nursing staff called Dr. Lewis later in the evening, they
reported that the headache had improved.3 Later, after hearing that the
patient was feeling okay, Dr. Lewis discharged Shackelford, who then left
KDMC at approximately 7:30 P.M.
Shackelford returned to KDMC the next morning via ambulance after
becoming disoriented at his home. A CT scan was performed which appeared
normal. An MRI was also performed which indicated multiple small infarcts
scattered bilaterally or, in other words, signs of a recent stroke. Shackelford
1 In his brief, Shackelford asserts that he complained of weakness in his legs. Dr. Lewis, in his deposition, states that he asked the nurse on at least two occasions if Shackelford had any weakness and was told that he did not. 2 Dr. Lewis opined that about one-third of patients will see scotoma. 3 Though it is somewhat unclear in the record, the headache may have increased in severity at some point and, as a result, Dr. Lewis prescribed Dilaudid, which in turn caused an upset stomach. 3 was then admitted to KDMC, where he was treated by a neurologist. He was
discharged two days later. Though his condition has improved, he claims to
have continuing short term memory loss and visual problems.
Shackelford initiated the underlying medical malpractice suit in Boyd
Circuit Court. There is no allegation that the stroke itself was caused by
negligence; rather, Shackelford alleges that the failure to examine and diagnose
the stroke after the angiogram was negligent and caused injury greater than
that which the stroke would have caused with earlier intervention. To support
his claims, Shackelford identified one expert, Dr. Michael David Khoury, a
vascular surgeon. During his discovery deposition,4 Dr. Khoury criticized Dr.
Lewis’s failure to examine Shackelford when his symptoms were consistent
with a stroke. However, Dr. Khoury did not opine that Dr. Lewis could have
limited the effects of the stroke through earlier intervention. When asked
specifically whether he could state within a reasonable degree of medical
probability that Dr. Lewis’s post-procedure care was a substantial factor in
causing harm to Shackelford, Dr. Khoury responded that it was “impossible to
tell.”
Based largely upon Dr. Khoury’s deposition testimony, Dr. Lewis and
KDMC moved for summary judgment on the basis that the expert had failed to
opine that the alleged negligence caused any injury to Shackelford, and, as a
result, Shackelford could not prove an essential element of his medical
malpractice claim. In response, the Boyd Circuit Court allowed Shackelford
additional time to depose the defense experts, Drs. Peter J. Pema and Gregory
4 Only portions of this deposition are included in the record. 4 Postal, both neuroradiologists. In his deposition, Dr. Pema acknowledged the
general proposition that strokes require timely diagnosis and treatment but did
not provide an opinion on causation under the specific facts of this case. Dr.
Postal, on the other hand, opined that Shackelford began to present symptoms
of a stroke after leaving the hospital.
After completion of the defense experts’ depositions, the trial court
entered an order granting KDMC’s and Dr. Lewis’s motions for summary
judgment. That court acknowledged that Shackelford “elicited general
testimony that strokes cause damage, that recognition of strokes needs to take
place quickly, that treatment needs to be implemented quickly, and that
damage can continue to occur following a stroke.” However, the experts could
not state with reasonable probability that, under the specific facts and
circumstances of this case, the defendants’ alleged negligence was a
substantial factor in causing Shackelford’s injuries. As a result, Shackelford
could not “establish a prima facie case of negligence to overcome summary
judgment,” and his claims were dismissed.
On appeal, the Court of Appeals reversed. It found that, in this case, the
issue of causation did not require expert medical testimony. It explained,
“Given the ubiquity of information regarding stroke symptom identification and
the necessity of prompt treatment, it has become common knowledge that Time
lost is brain lost’ as to timely medical intervention.” In other words, a jury of
laymen with this general knowledge could resolve the causation issue without
the aid of expert testimony. This Court granted discretionary review and now
reverses the Court of Appeals’ decision and reinstates the Boyd Circuit Court’s
summary judgment order. 5 II. STANDARD OF REVIEW
As a threshold matter, we must address Dr. Lewis and KDMC’s argument
that the proper standard of review is abuse of discretion, rather than de novo.
In making this argument, they rely heavily on Blankenship v. Collier, 302
S.W.3d 665 (Ky. 2010), but that case is easily distinguishable from the present
matter. In Blankenship, the plaintiff did not dispute the necessity of an expert
witness, yet he failed to disclose an expert despite receiving an extension of the
discovery deadline. As a result, the defendants moved for summary judgment.
The trial court granted the motion, noting that the plaintiff could not prove
causation without an expert witness.
However, the issue reviewed for abuse of discretion was not the
substance of the summary judgment ruling; rather, the issue was whether “the
opposing party has been given ample opportunity to complete discovery.” Id. at
668 (quoting Pendleton Bros. Vending, Inc. v. Commonwealth, Fin. & Admin.
Cabinet, 758 S.W.2d 24, 29 (Ky. 1988)) (internal quotation marks omitted). If
ample time had not been provided, it was inappropriate for the court to rule on
the summary judgment motion. Id. As this Court explained,
[E]ven 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.
Id. (emphasis added). In other words, “[t]he 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
standard.” Id. 6 In the present case, Shackelford produced an expert and was given
additional time after the filing of the motion(s) for summary judgment to
conduct discovery depositions of defense experts. The issue of whether he had
an adequate amount of time to do so is not before this Court. The substance of
the trial court’s summary judgment ruling is before the Court, however. As
Blankenship states, this issue is always reviewed de novo.
In this sense, the present matter is more akin to Adams v. Sietsema, 533
S.W.3d 172 (Ky. 2017). In Adams, the plaintiff brought a medical malpractice
action and identified an expert, but the expert expressed no criticism of the
defendants. The trial court granted summary judgment in the defendants’
favor after concluding that the plaintiff could not succeed without an expert
witness. The Court of Appeals reversed, finding expert opinion to be
unnecessary. After this Court granted discretionary review, the appellants
similarly argued that the matter should be reviewed for abuse of discretion, not
de novo. More specifically, they categorized the trial court’s decision as an
evidentiary ruling, which is typically reviewed under an abuse of discretion
standard. Our Court explained, however, that the appellants “confuse[] the
admissibility of expert opinion evidence with an entirely different concept: the
sufficiency of the evidence needed to sustain a claim of professional
negligence.” Id. at 178. In such cases, “the question is whether the plaintiff
can possibly demonstrate without expert opinion testimony the existence of a
genuine issue of material fact as to the defendant’s breach of duty or causation
of damages, and thereby refute the defendant’s contrary assertion.” Id.
To their credit, Dr. Lewis and KDMC concede that Adams may be
applicable to this case, but they argue that the de novo standard of review 7 simply provides a distinction without a difference. True, under either
standard, the reviewing court must consider whether the trial court made an
error of the law. Id. at 176-77. As a result, the decision may be the same
under either standard. Id. at 177. However, like the Adams court, we
nevertheless find it necessary to clarify the applicable standard of review: A
trial court’s decision to grant summary judgment for insufficient evidence is to
be reviewed de novo on appeal.
Thus, in this case, we must consider “whether the plaintiff can possibly
demonstrate without expert opinion testimony the existence of a genuine issue
of material fact as to the . . . causation of damages, and thereby refute the
defendant’s contrary assertion.” Id. at 178. In reviewing this issue de novo,
“any factual findings will be upheld if supported by substantial evidence and
not clearly erroneous.” Id. at 177. (quoting Bd. of Regents ofN. Ky. Univ. v.
Weickgenannt, 485 S.W.3d 299, 306-07 (Ky. 2016)) (internal quotation marks
omitted).
III. ANALYSIS
A. The res Ipsa loquitor exception does not apply to this case.
As noted above, the question in this case centers on the sufficiency of the
proof provided, specifically, the sufficiency of the proof of causation. Under
established Kentucky law, proximate causation is a necessary element of a
medical malpractice claim; the complainant must demonstrate that the medical
professional’s breach of the standard of care was a proximate cause of the
complainant’s injury. See Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122, 124 8 (Ky. 1991) (citations omitted). To be the proximate cause of the injury, the
conduct in question must be a substantial factor in causing the injury. See
Bailey v. North American Refractories Co., 95 S.W.3d 868, 871 (Ky. App. 2001).
Such proximate causation must be shown by a reasonable degree of medical
probability, rather than mere possibility or speculation. See Baylis, 805
S.W.2d at 124; Morris v. Hoffman, 551 S.W.2d 8, 11 (Ky. App. 1977).
Typically, expert opinion evidence is required to establish causation in a
medical malpractice suit. See, e.g., Blankenship, 302 S.W.3d at 670 (citation
omitted); Baylis, 805 S.W.2d at 124 (citations omitted). As this Court recently
explained in Adams,
Most medical malpractice claims involve issues of science or professional skill outside the ordinary experiences and range of knowledge of typical jurors and judges. For that reason, most, but certainly not all, medical malpractice claims cannot be proven without expert opinion testimony to establish that the conduct in question departed from the applicable standard of care and was a proximate cause of the damages claimed.
533 S.W.3d at 179 (citations omitted). The expert testimony “provides
information to assist the finder-of-fact, either a trial judge or jury, in
determining whether the conduct in question violated the standard of care and
caused the damages claimed by the plaintiff.” Id.
However, Kentucky law recognizes two exceptions to the expert testimony
requirement. In some cases, for example, the defendant physician “makes
certain admissions that make his negligence apparent.” Blankenship, 302
S.W.3d at 670. The other exception, res ipsa loquitor, arises in “cases in which
the ‘common knowledge or experience of laymen is extensive enough to
recognize or to infer negligence from the facts.’” Adams, 533 S.W.3d 179
9 (quoting Jarboev. Hartin, 397 S.W.2d 775, 778 (Ky. 1965)). In those cases,
expert testimony is unnecessary because “the jury may reasonably infer both
negligence and causation from the mere occurrence of the event and the
defendant’s relation to it.” Blankenship, 302 S.W.3d at 670 (citation omitted).
For example, Kentucky courts have found the res ipsa loquitor exception to
apply when a dentist’s drill slipped and punctured the patient’s tongue, Neal v.
Wilmoth, 342 S.W.2d 701 (Ky. App. 1961), and when a surgical hook was left
inside a patient after surgery, Nazar v. Branham, 291 S.W.3d 599 (Ky. 2009).
See also Meiman v. Rehabilitation Ctr., Inc., 444 S.W.2d 78 (Ky. App. 1969)
(finding res ipsa loquitor exception applicable where a bone was broken during
physical therapy); Jewish Hosp. Ass’n v. Lewis, 442 S.W.2d 299 (Ky. App.
1969) (finding res ipsa loquitor exception applicable where extensive bleeding
occurred after catherization procedure); but see Green v. Owensboro Med.
Health Sys., Inc., 231 S.W.3d 781 (Ky. App. 2007) (requiring expert testimony
where plaintiff awoke from hand surgery with four loose, misaligned, and
bloody teeth).
In the present case, the parties never contested that expert testimony
was required. As a result, the trial court did not need to consider the necessity
of such expert opinion evidence. See Blankenship, 302 S.W.3d at 673.
Nevertheless, the Court of Appeals undertook that analysis and determined
that expert testimony was not required. Although that court did not name the
res ipsa loquitor exception, it clearly adopts it. For example, the Court of
Appeals explains, “Given the ubiquity of information regarding stroke symptom
identification and the necessity of prompt treatment it has become common
knowledge that ‘time lost is brain lost’ as to timely medical intervention.” 10 We disagree with the Court of Appeals’ analysis. Although public service
campaigns have increased public awareness and knowledge about stroke
symptoms and timely intervention, that general information cannot provide the
medical expertise necessary to evaluate this particular claim of medical
malpractice. In other words, the question is not simply whether “time lost is
brain lost.” Rather, the specific facts and circumstances of this case play a
significant role in determining whether the alleged negligent conduct was a
substantial factor in Shackelford’s injuries, and to what extent. For example,
as Dr. Lewis’s deposition testimony illustrates, a variety of factors influenced
his diagnosis and treatment of Shackelford, including Shackelford’s medical
history and history of cluster headaches; the common side effects of the
angiogram procedure, including headache and scotoma; and the manner in
which Shackelford’s headache and scotoma presented, as well as their timing.
The complexities of these factors and how they affected Dr. Lewis’s evaluation
of Shackelford may have also influenced the severity of the injury. These
matters are clearly relevant to the determination of an alleged breach of the
standard of care. Despite public perception about timely intervention, the
average layperson cannot properly weigh such complex medical evidence
without the aid of expert opinion. We therefore conclude that expert testimony
is necessary to show that Dr. Lewis and KDMC’s alleged breach of the standard
of care was a substantial factor in causing any harm to Shackelford.
To conclude otherwise is to drastically expand the res ipsa loquitor
exception and to virtually eliminate the need for expert opinion evidence in
similar medical malpractice actions that involve common or highly publicized
conditions (e.g., stroke, heart attack, and even some cancers). This ignores 11 Kentucky’s long-standing practice of requiring expert opinion evidence in
medical malpractice actions to assist the finder-of-fact in understanding
matters “of science or professional skill outside the ordinary experiences and
range of knowledge of typical jurors and judges.” Adams, 533 S.W.3d at 179.
For this reason and the reasons stated above, we find that the Court of Appeals
erred in applying the res ipsa loquitor exception to this case.
B. The proffered expert opinion evidence failed to raise a genuine issue of material fact on the issue of causation.
Having determined that expert testimony was necessary in this case, we
must next consider whether the expert opinion evidence in this matter was
sufficient to raise a genuine issue of material fact. The Court of Appeals briefly
addressed this point in its opinion. It stated, “Even if we had concluded that
these facts required expert medical evidence, the deposition testimony of
defense expert, Dr. Pema, also reached the issue of causation.” No further
analysis was given.
Dr. Pema’s deposition testimony touches on the general proposition that
strokes require timely intervention. He acknowledged that “time lost is brain
lost” and “lost brain cells don’t regenerate,” for example. However, Dr. Pema’s
statements do not reach the issue of causation under the facts of this particular
case. In fact, when Dr. Pema was asked about this case specifically, he could
not opine that Shackelford’s injuries were caused by the failure to timely
intervene. For example, when asked during his deposition5 whether
Shackelford’s discharge from KDMC caused damage, assuming he was released
while suffering a stroke, Dr. Pema responded, “I don’t know that you can say
5 Portions of Dr. Pema’s deposition are included in the record. 5 12 from the time after he was released to the time he came back that any
difference would have been made. The damage could have been done and
there may have been no treatment for it.”
As the trial court explained, the experts in this case acknowledge the
general proposition that strokes cause damage and should be diagnosed and
treated as quickly as possible. However, while it is generally true that “time
lost is brain lost,” the causation element of this claim must be analyzed under
the facts and circumstances of this particular case. Simply put, an expert
cannot speculate based on general, simplified information regarding diagnosis
and treatment. Here, when the expert witnesses were asked to consider the
specifics of this case, they were unable to state with a reasonable degree of
medical probability that the conduct of either Dr. Lewis or KDMC was a
substantial factor in causing Shackelford’s injuries. We therefore conclude that
Shackelford failed to present the expert opinion evidence necessary to
demonstrate causation. Accordingly, because there was no genuine issue of
material fact, Dr. Lewis and KDMC were entitled to judgment as a matter of
law.
IV.CONCLUSION
For the reasons set forth above, we conclude that the trial court’s
decision to grant summary judgment based upon a failure of proof of causation
is subject to a de novo review. Having reviewed this matter de novo, we
conclude that the res ipsa loquitor exception is inapplicable herein and expert
opinion evidence is therefore required to establish causation. The expert
testimony in this case failed to raise a genuine issue of material fact as to the
causation element, and Dr. Lewis and KDMC were therefore entitled to 13 summary judgment as a matter of law. Accordingly, we reverse the decision of
the Court of Appeals and reinstate the trial court’s order granting summary
judgment and dismissing the claims against Dr. Lewis and KDMC.
Minton, C.J; Buckingham, Hughes, Keller, VanMeter and Wright, JJ.,
sitting. All concur. Lambert, J., not sitting.
14 COUNSEL FOR ASHLAND HOSPITAL CORPORATION D/B/A KING’S DAUGHTERS MEDICAL CENTER:
William Mitchell Hall, Jr. Keri E. Hieneman Alexis Orlando Gonzalez-Lopez VanAntwerp Attorneys, LLP
COUNSEL FOR PAUL WESLEY LEWIS, M.D.:
Kenneth Williams, Jr. David Frederick Latherow Geoffrey D. Marsh Williams, Hall & Latherow, LLP
COUNSEL FOR APPELLEE, DAVID SHACKELFORD:
Anthony David Blankenship Kinner & Patton
COUNSEL FOR AMICUS CURIAE, KENTUCKY DEFENSE COUNSEL, INC.:
Melissa Thompson Richardson Elizabeth Bass Laura Katharine Haagen Walters Meadows Richardson PLLC
COUNSEL FOR AMICUS CURIAE, AMERICAN MEDICAL ASSOCIATION AND KENTUCKY MEDICAL ASSOCIATION:
Bethany A. Breetz Sarah Spurlock Stites & Harbison, PLLC
Phillip Seth Goldberg Cary Silverman Shook, Hardy & Bacon, LLP