RENDERED: NOVEMBER 2, 2017 TO BE PUBLISHED
2016-SC-000181-DG
LAKE CUMBERLAND REGIONAL APPELLANT HOSPITAL, LLC
ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2013-CA-000983 PULASKI CIRCUIT COURT NO. 09-Cl-01471
HELEN ADAMS APPELLEE
AND
2016-SC-000189-DG
SPRING VIEW HOSPITAL, LLC APPELLANT
ON REVIEW FROM COURT OF APPEALS v. CASE NOS. 2014-CA-000600 & 2014-CA-000707 MARION CIRCUIT COURT NO. 10-CI-00208
KAREN JONES (NOW EPLEY) APPELLEE
AND 2016-SC-000259-DG
\
SPRING,VIEW HOSPITAL, LLC APPELLANT
) ON REVIEW FROM COURT OF APPEALS v. CASE NOS. 2013-CA-000842 & 2013-CA-000912 MARION CIRCUIT COURT NO. 10-CI-00011 .
JOYCE SPALDING (EXECUTRIX OF THE APPELLEES EST~TE OF JOSEP~ PAUL SPALDING, DECEASED) AND JOYCE SPALDING
2016-SC-000277-DG
JOYCE SPALDING (EXECUTRIX OF THE APPELLANTS ESTATE OF JOSEPH PAUL SPALDING, DECEASED) AND JOYCE SPALDING
ON REVIEW FROM COURT OF APPEALS v. CASE NOS. 2013-CA-000~42 & 2013-CA-000912 MARION CIRCUIT COURT NO. 10-CI-00011
I SPRING VIEW HOSPITAL, LLC APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING IN PART, REVERSING IN PA~T, AND REMANDING ,
This Court granted discretionary review to consider the issue of whether
patients have a cause of action against a hospital for the negligent
2 credentialing of a non-employee physician who is given staff privileges by the
hospital. We consolidate these cases to determine whether Kentucky law
recognizes the tort of negligent credentialing. For the following reasons, we
reverse the Court of Appeals' r~cognition of negligent credentialing as a
separate cause of action in the Commonwealth. We affirm th~ Court of
Appeals' affirmance of summary judgment in the Spalding case and reinstate
the order of the trial court. We remand the Adams and Jones cases to the
respective trial courts for further proceedings.· \ ·-I. BACKGROUND.
A. The Adams Case.
. Lake Cumberland Regional Hospital (LCRH) is located in Somerset,
Kentucky. In 2006, LCRH granted provisional medical staff privileges to Dr.
Guy Sava. Prior to LCRH granting privileges to Dr. Sava in 2006, Dr. Sava
practiced in Ohio, Saudi Arabia, and Minnesota, specializing in neurosurgery.
LCRH reviewed Dr. Sava's application for privileges which contained
information relating to his prior histpry of chemical dependence and
depression. The record shows Dr. Sava sought treatment in 2002, and no
instances of substance abuse have occurred since his treatment. LCRH :· . obtained peer recommendations related to Dr. Sava. Some physicians voiced
reservations over Dr. Sava's professional judgment and patient management.
LCRH granted Dr. Sava full active staff privileges in May 2007.
Helen Adams (Adams) sought treatment from Dr. Sava in September
2008 due to suffering from severe back and leg pain. Adams was diagnosed
3 with multiple spinal conditions, and Dr. Sava performed a spinal stabilization
procedure on October 6, -2008. Dr. Sava was to insert hardware along both
sides of Adams's spine; however, complications arose during surgery, and
because Adams suffered from osteoporosis, the hardware could only be placed
on one side of her spine. Adams also suffered from a torn dura, the layer
covering the spinal cord.
Adams continued to report severe pain following surgery and fluid
collected under the skin on her back. Dr. Sava performed a second procedure
to repair a cerebrospinal fluid leak. Adams continued to complain of severe
pain in her right leg, right foot numbness, and right foot drop._
Adams filed suit on October 5, 2009, alleging negligence against Dr.
Sava, Dr. Sava's neurosurgery clinic, and LCRH. Adams asserted that due to
Dr. Sava's history and·the reservations from his former peers, LCRH was
negligent "in extending privileges to [Dr. Sava], or in failing to suspend or
terminate Dr. Sava's privileges prior to the injuries caused to [Adams]."
By agreed order, Adams dismissed her claims of negligence against LCRH
based on treatment rendered by LCRH and based on theories of ostensible
agency. LCRH moved the Pulaski Circuit Court for judgment on the pleadings
on the only remaining claim, negligent credentialing. The trial court granted
the motion finding that there is no recognized cause of action for negligent
credentialing in Kentucky. Adams appealed.
4 l B. The Jones (now Epley) Case.
Spring View Hospital (Spring View) is located in Lebanon, Kentucky.
Spring View is accredited by the Joint Commission on Accreditation of
Hospitals requiring Spring View to draft and enforce bylaws outlining their
credentialing process. Spring View's bylaws required that members of its active / medical staff: I
Must be Board certified in the specialty for which they seek privileges, or have successfully completed a residency training . program ... in the specialty for which they are applying for privileges; or be board certified or board admissible by one of . [several] specialty boards in the specialty for which the practitioner. is applying for privileges. Members of the active staff must obtain Board Certification by a specialty recognized by the American Board of Medical Specialties within five (5) years of becoming eligible to sit for Board exams. This requirement will be considered at time of initial appointment and at each subsequent reappointment.
Dr. Daniel Bailey signed a Recruiting Agreement with Spring View
in September 2006. The Recruiting Agreement required Dr. Bailey to be
duly licensed as a physician in the State of Kentucky, and to obtain and
maintain active medical staff privileges with Spring View. Dr. Bailey
. applied to join Spring View's medical staff in December 2006. In his
application, Dr. Bailey disclosed his experience in orthopedic surgery in
Texas and indicated he specialized in "orthopedics." However, Dr.. Bailey
left blank the section of the application requesting the names of specialty
boards in which the physician was certified.
After the Kentucky Board of Medical Licensure granted Dr. Bailey
his license to practice in Kentucky, Spring View granted Dr. Bailey
5 ,_
provisional medical staff privileges for one year. Dr. Bailey was granted
active medical staff privileges in July 2008.
Karen Jones (Jones) injured her knee in 2005 and s,aw Dr. Bailey
in August 2007. Dr. Bailey performed a right patellofemoral knee
replacement surgery and a subsequent total right knee arthroplasty.
After surgery, Jones experienced complications and began seeing anot?er
doctor, Dr. Sewell, in August 2009, when she became aware that Dr.
Bailey's treatment may have caused her injury.
Jones filed suit for medical malpractice against Dr. B~iley on May
28, 2010, and in November 2012, amended her complaint to add Spring
View, alleging that Spring View was negligent in granting Dr. Bailey staff
credentials. Spring View moved for Summary Judgment based on
Jones's claims being time barred. Spring View asserted that Jones knew,
or should have known, of her claim against Spring View more than a year
before Jones filed her Amended Complaint. The trial court denied the
motion.
In January 2014, Spring View filed a motion to dismiss Jones's
claim because Kentucky did not recognize the tort of negligent
credentialing. The Marion Circuit Court agreed and grar:ited Spring
View's motion. Jones appealed. After Jones' negligent credentialing
claim was dismissed, and notice of appeal was filed, Jones settled her
claim with Dr. Bailey.
6 C. The Spalding Case.
Joseph Spalding fractured his hip in January 2009, requiring surgery,
which Dr; Bailey·performed at Spring View. Following surgery, Dr. Bailey
recommended that Mr. Spalding undergo a total replacement of his knee joint.
Tl}is surgery occurred on April 22, 2009. Complications developed including
failure of the knee prosthesis, severe infection, and necrosis. Additional
surgeries were required and ultimately Mr. Spalding's leg had to be amputated
above the knee. (
The Spaldings filed suit against Dr. Bailey and Spring View in January
2010 .. The Spaldings claimed Spring View was negligent in granting Dr. Bailey
active medical staff privileges due to his lack of qualification under the
hospital's own bylaws and in failing ~o revoke Dr. Bailey's privileges in light of
alleged prior negligent actions.
Dr. Bailey filed for bankruptcy and the Spaldings settled their claim with
him, leaving their action for negligent credentialing against Spring View as the
only remaining claim. Spring View moved for Summary Judgment and
Judgment on the Pleadings based on the Spaldings' failure to assert a
recognized cause of action under Kentucky law. The trial court granted Spring
View's motions. The trial court also found that even if negligent credentialing
was recognized, the Spaldings did not provide sufficient expert proof to present
to the jury. The Spaldings appealed.
7 /
D. Court of Appeals Decision . .
The Court of Appeals consolidated the above cases for review. The Court
of Appeal~ examined the law of other jurisdictions recognizing the tort of ' negligent credentialing and considered ' the respective policy arguments . for, and
against, such recognition. The Court ultimately recognized negligent
credentialing· as a cause of action by which individuals can hold hospitals liable
for the negligent exten·sfon or renewal of staff privileges and credentials to
indep~ndent contractor physicians. The Court of Appeals reve~sed arid
remanded the Adams case; reversed and remanded the Jones case, affirming
the trial court's denial of Spring View's motion for summary judgment
regarding its statute of limitations claims; and affirmed the trial court's grant of
summary judgment in favor of Spring View in the Spalding case, agreeing·with
the trial court that plaintiffs had failed to present sufficient expert testimony.
The hospitals and the Spaldings appealed. AdditionaLfacts are set forth b~ow,
as necessary.
II. STANDARD OF REVIEW.
The plaintiffs' claims (Adams, Jones, and Spalding) were dismissed by
the trial courts on summary judgment, motion for judgment on the pleadings,
or motion to dismiss based on negligent credentialing not being a recognized
cause of action ir the Commonwealth. Appeals based upon questions of law, as here, are subject to de nova review, with no deference to the trial court's I
determination. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001).
8 III. ANALYSIS.
A. Policy.
The public policy of the Commonwealth is normally expressed through
acts of the legislature, not through decisions by the courts. Wehr Constructors,
Inc. v. Assurance Co. of America, 384 S.W.3d 680, 687 (Ky. 2012) (citing Com.
Ex rel. Cowan v. Wilkinson, 828 S.W.2d 610, 614 (Ky. 1992) (The establishment
of public policy is granted to the legislature alone)).
In Giuliani v. Guiler, 951 S.W.2d 318 (Ky. 1997), the Court recognized a
cause of action for loss of parental consortium by a child. "The legislature on
its own had previously recognized the l,oss of consortium for a parent on the
death of a child in Kentucky Revised Statute (KRS) 411.135.':· Pearson ex rel.
Trent v. National Feeding Systems, Inc., 90 S.W.3d 46, 52 (Ky. 2002). Giuliani
does not place an affirmative duty on courts to act in the absence of the
legislature to do so, but instead, stands for the proposition that it is not the
sole province of the legislature to develop the common law. Id. "In the absence
of a legislative decree, courts may adopt and apply public policy principles."
Giuliani, 951 S.W.2d. at 321\(citing Owens v. Clemons, 408 S.W.2d 642 (Ky.
1966)).
For the reasons set forth below, this Court is not inclined to recognize
the stand-alone tort of negligent credentialing, as this Court has not been ·
persuaded by counsel of the need for a new cause of action, and the tort's far-
reaching implications,. as well as its impact on rural hospitals and communities
in the Commonwealth, (are unknown. The plaintiffs already have available the
9 means . by which to bring their claims under common . law principles of
negligence, therefore, this Court need not create a new tort.
B. Negligent Credentialing.
Negligent credentialing was first recognized in the Illinois decision of
Darling v. Charleston Cmty. Mem'l Hosp., 211 N.E. 2d 253 (Ill. 1965). Andrew
R. deHoll, Vital Surgery or Unnecessary Procedure? Rethinking the Propriety of
Hospital Liability for Negligent Credentialing, 60 S.C. L.. Rev. 1127, 1138 (2009).
"Broadly, negligent credentiaiing is a theory in which the recipient of a harmful
service recovers from a gatekeeping entity for allowing the provider of that
service to engage in the activities that caused the recipient harm." Id. at 1127
(citing Cf. Elam v. Coll. Park Hosp., 183 Cal. Rptr. 156, 164 (Cal. Ct. App. 1982)
(stating that hospitals are responsible for ensuring the competency of
physicians who receive staff privileges)).
A prima facie case of negligent credentialing must establish proof that:
(1) the hospital owed the patient a duty to insure a competent medical staff; (2)
the hospit~l breached that duty by granting privileges to an incompetent or
unqualified physician; and (3) the physician caused harm to the patient (the
underlying medical malpractice claim must be proved). Peter Schmit, Cause of
Action/or Negligent Credentialing, 18 Causes of Action 2d 329 (2002). "To
prevail, the plaintiff must" show that the hospital negligently granted privileges
to a physician and that the negligently credentialed ·physician was in fact
negligent and caused harm to the plaintiff." Id. (emphasis in original).
10 Jurisdictions recognizing the tort apply peer review statutes and find that
hospitals have a direct duty to grant and to continue staff privileges only to
competent doctors while also having aduty to remove incompetent doctors. Sean Ryan, Negligent Credentialing: A Cause of Action for Hospital Peer Review
Decisions, 59 How. L.J. 413, 422 (2016) (citing Schelling v. Humphrey, 916
N.E.2d 1029, 1033 (Ohio 2009)). Other states have recognized the tort by
finding negligent credentialing inherent in, and the natural extension of, well-
established common law rights. Id. at 424. (citing Larson v. Wasemiller, 738
N.W.2d 300, 306 (Minn. 2007)). Texas adopted negligent credentialing, with
heavy restrictions, and only allowing the tort in cases where the plaintiff can
show the grant of privileges was made with malicious intent. Id. (citing Tex.
Health & Safety Code Ann.§ 161.033 (West 2015)).
By the same t9ken, jurisdictions that reject claims of negligent
credentialing also do so based on immunity granted in peer review statutes and
in the federal Healthcare Quality Improvement Act. Id. at 426-27. The
Arkansas Supreme Court held that the state's peer review statute affords
immunity as long as the hospital peer review committee acts without fraud or
malice. Id. at 428. Arkansas further rejected the tort for two reasons.
First_ the court concluded that negligent credentialing conflicted with the state's medical malpractice act because the hospital's credentialing decision was not a "medical injury." Since the hospital was not directly involved with the doctor's decision to perform plaintiffs surgery, the hospital was not liable for a "medical injury" under the medical malpractice act. Second, the court rejected the argument that negligent credentialing was simply an extension of common law negligent hiring or negligent
11 supervision because Arkansas' Peer Review Statute already provided for review of physician competency.
Id. (citing Paulino v. QHG of Springdale, Inc., 389 S.W.3d 462 (Ark. 2012)).
C. Avenues of Recovery.
Medical malpractice is but a specific branch of the common law tort of
negligence. "In medical malpractice cases[,] the plaintiff must prove that the
treatment given was below the degree of care and skill expected of a reasonably
competent practitioner and that the negligence proximately caused injury or
death." Reams v. Stutler, 642 S.W.2d 586, 588 (Ky. 1982) (citing Bla~r v. Eblen,
461 S.W.2d 370 (Ky. 1970)). Claims of negligence, or medical malpractice,
against hospitals are not new causes of action. For example, plaintiffs are free
to bring negligence claims against hospitals for Methicillin Resistant
Staphylococcus Aureus (MRSA) infections; premises liability issues; and for the
hospital's negligence in sel~cting its staff. See, Stallins v. Hinton, 2015 WL
5316700 (Ky. App. September 11, 2015); Shelton v. Kentucky Easter"Seals Soc.,
Inc., 413 S.W.3.d 901 (Ky. 2013); Rlinois Cent. R. Co. v. Buchanan, 103 S.W. 272
(Ky. 1907).
The structure in which hospitals are now operating has changed and this
change has encouraged the push to recognize a specific cause of action - -
·negligent credentialing. Traditionally, hospitals were charitable organizations,
non-profit, and recipients of state funding. Now, however, hospitals are
becoming increasingly private·, for profit, and corporate in nature. Hospitals
12 are moving away from traditional physician employees and instead are granting _ \ hospital privileges to independent contractor physicians.
What has remained constant is that hospitals are required to exercise
ordin~ry care. Se7, Humana of Kentucky, Inc. v. McKee, 834 S.W.2d 711, 722 \ . (Ky. App:-1992). Hospitals have a duty to make sure patients receive a
medically acceptable standard of care, and this duty extends to making sure I
qualified staff are providing the appropriate medical care. See, Rlinois Cent. R.
Co. v. Buchanan, 103 S.W. 272, 274 (Ky. 1907). The hospital can certainly be
liable· for its own negligence, separate and distinct from any negligence on the
part of a physician - - even a non-employee physician.
In Rlinois Cen.t. R. Co. v. Buchanan, the railroad established· a hospital to
which it sent its sick, disabled, and injured employees. An employee brought
an action on the grounds that surgeons and attendants at the hospital were
incompetent and unskilled. The Court held:
"All of these persons are appointed by the railroad company; and, although the railroad company is not liable in damages for the negligence and carelessness or unskillfulness of any of its surgeons, physicians, or attendants in charge in their treatment and care of the employees received into the hospital, yet it is 0 bliged to exercise reasonable care in the selection of the persons who have charge of the patients; and, if it fails to select skillful and competent surgeons, physicians, and attendants, it may be required to respond in damages to any employee who has been injured by such incompetent or unskillful physicians, surgeons, or attendants."
I.d. at 273. "In the employment by a railroad company of its surgeons to attend
to persons injured by its trains, the relation of master and servant, principal
' J \ and agent, does not exist. And, if the.railroad company is careful and selects
suitable surgeons, it is not re&p9nsible for their neglect or malpractice." Id.
It is clear that the duty on hospitals to employ competent staff has
existed in the qommonwealth at least since the beginning of the twentieth
century. There is no need for this Court to establish a new tort specifically
applying to hospitals. Like many negligence actions, a claim, of negligence • J
against a hospital for the selection of its physicians is derivative of the medical
malpractice claim against the physician. I Without proof that. the doctor
·) committed malpractice, the plaintiff will be unable to prove causation in the
negligence action against the hospital. This is consistent with I liability being·
imputed to a principal in vicarious liability actions, Branham v. Rock, 449
S.W.3d 741, 752 (Ky. 2014) (citing Cohen v. Alliant Enterprises, Inc., 60 S.W.3d
536, 539 (Ky. 2001)2, as well as with the bifurcated trial practice in the
jurisdictions that expressly recognize negligent credentialing as a separate tort.
Kyle Deskus, Health Law - - Band-Aid Jurisprudence: Why the Recognition of
Negligent Credentialing Threatens Patient Care in Massachusetts, 37 W. New
Eng. L. Rev. 27, 36 (2015) (citing Schelling v. Humphrey, 916 N.E.2d 1029,
1035-36 (Ohio 2009)).3.
1 When we say the.case against a hospital is derivative, we mean that the plaintiff will have to prove the underlying harm, often against a negligent physician, which will often require litigation of a case within a case. However, we can envision a scenario where a negligence action against a hospital would not be derivative - of an action against - a physician or employee. \
~ ' 2 "[I]f the agent did not act negligently, there can be no vicarious liability imputed to the principal." '
3 In Schelling, th~ Ohio Supreme Court explained that bifurcation would be beneficial
because it "avoids the problem of jury confusion or prejudice ... [and] also allows a negligent
14 Because the Court finds a new cause of action is not necessary for the
plaintiffs' claims, we must now examine whether the plaintiffs' claims should
have been dismissed by the trial court on other grounds.
1. Helen Adams.
The trial court granted LCRH's motion for judgment on the pleadings (
finding that Adams's claim of negligent credentialing was not a recognized
cause of action. No other grounds gave rise to the Pulaski Circuit Court's
dismissal of Adams's claims, and therefore, the court erred. For that reason,
we remand the matter to that court for further proceedings consistent with this
opinion;
2. Karen Jones (now Epley).
Spring View sought summary judgment on additional grounds that
Jones filed her claim against Spring View more than two years after filing her
claim against Dr. Bailey, thus, her claim was time-barred under the statute of ) limitations. The Marion Circuit Court denied Spring View's motion and the
Court of Appeals affirmed.
An action against a hospital for negligence or malpractice shall be
brought within one year after the cause of action accrued. KRS 413.140(1)(e).
The discovery rule is a means by which to identify when a cause of action
accrues and the statute begins to run on the date of the discovery of the injury,
or from the date it should, in the exercise of ordinary care and diligence, have.
credentialing. claim against a hospital to be dismissed if the plaintiff does not prevail" in the initial malpractice action.
15 been discovered. Wiseman v. Alliant Hospitals, Inc., 37 S.W.3d 709, 712 (Ky.
2000).
It is important to note the distinction between injury and harm. "Harm
in the context of medical malpractice might be the loss of health foll.owing
medical treatment. Injury, on the other hand, is defined as 'the invasion of any
legally protected interest of another'." Wiseman, 37 S.W.3d at 712. The injury
in the medical malpractice context refers to the actual wrongdoing, or the . - malpractice itself. Id. "Under the discovery rule, it is the date of the actual or
constructive knowledge of the injury which triggers the running of the statute
of limitations." Id. (citing Hall v. Musgrave, 517 F.2d 1163, ·1168 (6th Cir.
1975)(Celebrezze, J·., dissenting)):
This distinction is important because it underscores the fact that Jones's
claim against Spring View did not n~cessarily accrue at the same time as her
claim against Dr. Bailey. Spring View argues that Jones's claim accrued on ,, August 3, 2009, when Jones learned from another doctor, Dr. Sewall, that
other patients had complaints about Dr. Bailey. This argument is flawed
because it conflates the facts which might have given rise to Jones's claim
against Dr. Bailey with those that would have given rise to her claim against
Spring View. The same applies to Spring View's next contention that Jones?s
claim accrued in 2010 when Jones read about the Spaldings' claims in the
local newspaper.
Spdng View additionally argues that Jones's claim is barred because
Jones's lawyer had knowledge about possible fault on the part of Spring View
16 and such knowledge would be imputed to Jones. Jones and the Spaldings
were both represented by the same attorney. The Spaldings filed their claims
against Dr. Bailey and Spring View prior to Jones filing her ~laims.
The general rule that an attorney's knowledge may be imputed to his or her client is subject to a number of exceptions. Accordingly, knowledge which an attorney obtained in transactions independent of his or her representation of the client is not imputed to the J client, and a client is not affected with notice because of knowledge obtained by the attorney from outside _source,s and not in the course ofhis or her employment, as, for example, where the, knowledge is acquired by the attorney·in the performance of professional services for another. Nor is the client affected by knowledge acquired, or notice received, by the attorney before the commencement of the attorney-client relationship.
3M Co. v. Engle, 328 S.W.3d 184, 189, fn. 26 (Ky. 2010):
Jones maintains that she did not become aware of a possible claim
against Spring View until 2012, when Spring'View responded to discovery in
the Spalding case admitting that Dr. Bailey did not meet the requirements of
Spring View's bylaws. The Court of Appeals held that Jones was not clearly on
notice of her cause of action against Spring View before March 30, 2012, and
these circumstances at least raise genuine issues of material fact,
inappropriate for granting a sum:rp.ary judgment motion. On this issue, the
Court agrees with the Court of Appeals: Jones's claim clearly falls into the
exception discussed in the Engle footnote above. The knowledge of Jones's
attorney cannot be imputed to her because any such knowledge was acquired
by the attorney in providing services for another client. Summary judgment is
inappropriate .as to this issue. Because we affirm the trial court's denial of
summary judgment for Spring View based on the statute of limitations, and
17 because we find that Jones can proceed with her action against Spring View,
·we remand Jones's case to the Marion Circuit Court for further proceedings
consistent with this opinion.
3. Joseph and Joyce Spalding.
a. Settlement.
The Spaldings filed suit against Dr. Bailey and Spring View on January
· 11, 2010. On October 14, 2011, Dr. Bailey filed for Chapter 7 bankruptcy and .
the Spaldings agreed to dismiss their claim against Dr. Bailey by agreed order
entered January 4, 2013. There was no stipulation to liability or fault in the
agreed order as to Dr. Bailey:
Spring View contended at the trial court that, because Dr. Bailey was
dismissed from the case without any establishment of fault on his part, Spring
View would be prejudiced by having to defend Dr. Bailey in the negligent
credentialing trial. The trial court was not sympathetic to Spring View's
arguments, and neither is this Court. w·e adopt the reasoning of the Marion
Circuit, Court that settlement with the doctor without an admission of fault is
not a bar to prosecuting the _claim against the hospital. As t~e trial court
noted, KRS 411.182(4) addresses the procedure when one defendant settles in
a tort case. The case against the remaining defendants proceeds as usual. 4
_This is not a case where the dismissal of an agent also relieves the master of
4 KRS 411.182(4) states: A release, covenant not to sue, or similar agreement entered into by a claimant and a person liable, shall discharge that person from all liability for contribution, but it shall not be considered to discharge any other persons liable upon the same claim unless it so provides. However, the claim of the releasing person against other persons shall be reduced by the amount of the released persons' equitable share of the obligation, determined in accordance with the provisions of this section.
18 liability. This is so because the Spaldings' claim against the hospital arises
from the hospital's own alleged negligence.
b. Circular Indemnification.
When Dr. Bailey filed for Chapter 7 bankruptcy, Joseph and Joy~e
Spalding, and Spring View, were named as creditors. The Spaldings \ subsequently entered into a Release and Settlement of Claims (Settlement) with
Dr. Bailey. Pertinent parts of the Settlement state:
Although it appears that any claigi of indemnity by any person or party, including the potential claim ofindemnity of Spring View Hospital, LLC, is now barred and the commencement of any such action enjoined by 11 U.S.C. § 524, to the ext.ent of the personal liability of Daniel E. Bailey, Jr., M.D., and resultant exposure of The Medical Protective Company, if any, and only to such extent, Joseph Spalding and Joyce Spalding, further agree to indemnify, defend, and hold harmless the Released Parties, from 1
any and all claims, ,suits, third party claims, cross-claims, claims for indemnity or contribution, or any other actions, causes of action, known or unknown, presently or at any future time made ' against the Released Parties by any person, entity, insurance co.mpany, corporation, agency,-governmental agency, hospital or organization, including but not limited to Spring View Hospital LLC, arising out of or in connection with the above-mentioned alleged incident and fawsuit. The terms recited. herein should not be construed. to release any claims that Joseph Spalding and Joyce Spalding may have against any other potentially liable party, including, but not limited to, Spring View Hospital LLC, and it is the intent of the parties that said claims are expressly reserved. Furthermore, any payments made in accordance with the terms of this Settlement will serve as only partial satisfaction of the injuries sustained by Joseph Spalding and Joyce Spalding, and this agreement should not be constru.ed to cause a forfeiture of the right of Joseph Spalding and Joyce Spalding to seek full satisfaction of said injuries from any other potentially liable party, including, but not limited to, Spring View Hospital LLC. ·
.Spring View argued that the Spaldings' indemnification of Dr. Bailey in
the Settlement would preclude any claim or award against Spring View under 19
/ the circular indemnity argument established in Crime Fighters Patrol v. Hines,
740 S.W.2d 936 (Ky. 1987). The present case differs from Hines. Any claim of
indemnity Spring View possessed was extinguished when the Bankruptcy
Court entered ·an order extinguishing all debts, actual or potential, ag~inst Dr. ' Bailey. "Creditors of the debtors are parties to a bankruptcy proceeding."
Cadle Company v. Gasbusters Production I Limited Partnersfup, 509 S. W .3d . . 713, 719 (Ky. App. 2016) (citing Sanders Confectionery Prods., Inc., v. Heller
Fin., Inc., 973 F.2d 474, 481 (6th Cir. 1992)). Spring View made no attempt to
except its potential indemnity claim from discharge in the pankruptcy
proceeding. Therefore, we find that any claim of indemnity held on behalf of
Spring View was terminated with the remainder of Dr. Bailey's debt in the
January 18, 2012 Order from the Bankruptcy Court.
c. Expert Witness.
In granting Spring View's motion for summary judgment, the Marion
Circuit Court based its decision, in part, on its review of the deposition
testidiony of Kathy Matzka, the Spaldings' e:x;pert. ·The trial court found that
Ms. Matzka's testimony was insufficient to establish a jury question regarding
the hospital's violation of the standard of care. The trial court stated that if it
were to adopt Ms. Matzka's reasonin'g, that hospitals create a higher standard
of liability when the hospital establishes a higher standard for credentialing, it
would discourage hospital's from setting higher standards. Although not stated
in its order, it.appears that the trial court also found that Ms. Matzka was not
qualified as an expert. _The issue of qualification is not before this Court, so we
20 need not address it~ however, because we agree that Ms. Matzka's testimony
stated an erroneous standard of care, we affirm the trial court's finding that the
testimony could not be presented to the jury.
"Under Kentucky law, a plaintiff alleging medical malpracticei~. gen~rally
required to put forth expert testimony to show th~t the defendan~ medical
provider failed to conform to the standard of care." Love v. Walker, 423 S.W.3d
751, 756 (Ky. 2014) (citing Perkins v. Hausladen, 828 S.W.2d 652, 655-56 (Ky.
199.2)). The trial court cited Rogers v. Kasdan in its order granting Spring
·View's summarjr judgment moti~n, again, focusing on the idea that the
hospital's established policies do not heighten the standard of ca.re. We agree
with the trial court that Spring View's bylaws do not create a higher standard
of care or otherwise alter its liability.
In Rogers, the trial court instructed the jury on the duty "to exercise that
degree ofcare ordinarily used byhospitals under circumstances like or similar
to those shown in this case." 612 S.W.2d 133, 135 (Ky .. 1981). The trial court
. went on to add additional duties relating to the hospital maintaining
appropriate procedures. Id. at 135-36. The Court found these additional
duties and instructions to be in error because they failed to meet the bare
bones instruction test. Id. at 136. "Whether the hospital hired knowledgeable
nurses, or had proper supervision fpr staff physicians, or accurate record
keeping, and so forth, were all evidently questions for the jury to consider.
While they constituted criteria the jury might use to decide the question of
21 ordinary care, listing them in this manner was not necessary to pose the issue
of the hospital's duty." 1d.
.It is our conclusion that the jury should be instructed that the defendant was under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the . same class to which he belongs, acting in the same or similar circumstances. Under the standard just expressed, the evidence may include the elements of locality, availability of facilities, specialization or general practice, proximity of specialists and special facilities as well as other relevant considerations.
Blair v. Eblen, 461 S.W.2d 370, 373 (Ky. 1970).
Ms. Matzka's testimony regarding the hospitals bylaws and procedures
does not create an entitlement to a specific jury instruction on the duty to
follow those bylaws and procedures, and because this Court declines to
recognize a new cause of acticin or a new express duty relating to hospitals, the
instruction remains that as outlined above· in Blair. In examining Ms. Matzka's
deposition testimony, the Court notes that Ms. Matzka did not a<;;curately
testify as to the standard of c~re for a hospital in medical negligence cases.
Q. Do you know - - did they require - - did that hospital require board certification? A. No. Q. Okay. Do you know why? A. Because it's not required by accreditation standards or regulatory requirements. Some hospital medical staffs just in their hospitals decide they want to set the bar higher.s ... Q. Well, one thing I forgot to ask you about, these medical staff bylaws, I mean, any hospital can put things, hospital and its medical staff, in bylaws that are above and beyond the standard of care, correct? · A. That's correct.
s Kathy Matzka Deposition, page 40 .
.22 Q. All right. So - - and you understand what you're giving opinions on are the standard of care, not something that's the highest bar, correct? A. Well, that's true, but I feel that the bylaws, the rules and regulations, credentialing processes that a hospital puts ~-n place or a medical staff puts in place for itself do set the standard of care for that facility. If you set the bar high, then you should - - you do it for a reason. Q. Right. But the standard of care is what a reasonably competent hospital would do under same or similar circumstances. Do you understand that to be the standa:r:d of care or something different? A. Well, I understand that to be the reasonableness standard, but I feel if somebody sets the bar higher that they should meet their own requirements. I feel that it's a standard of care throughout hospitals when they require something in their bylaws. 6
The standard of care a hospital owes to a patient is that standard
expected of a reasonably competent hospital, acting in the same or similar . circumstances. Ms. Matzka's testimony was certainly evidence the jury could
weigh in determining if Spring View exercised its duty of care, but Spring
View's bylaws do not, in and of themselves, establish the standard of care.
Because Ms. Matzka's testimqny attempted to define what the legal standard of
care was; and because that asserted standard was erroneous, the triaf court
was correct in granting summary judgment to Spring View.
Therefore, the Court affirms the opinion of the Court of Appeals
upholding the trial court's grant of summary judgment against the Spaldings
because Ms. Matzka failed to provide sufficient expert testimony related to
Spring View's standard of care and breach thereof.
6 l(athy Matzka Deposition, pages 64-65.
23 D. Future Guidance.
Because we rem~d the Adams and Jones cases to the trial courts, we
· feel it necessary to provide guidance for further proceedings that will occur in
tpese cases, and others that follow.·
We reiterate that we are not recognizing a new tort of negligent . ' credentialing. We also reiterate that plaintiffs already have a means by which
to recover against a hospital for allowing incompetent physicians to provide
medical care: That means is the common I.aw tort theory of negligence.
Hospitals are neither shielded from liability nor does the change in hospital
management demand creation of a new cause of action, specifically applying to
hospitals in the credentialing of physicians.
The standard of care remains the objective, reasonable person (hospital)
standard. Just like in a medical malpractice case, where plaintiff must present
expert testimony regarding the standard of care and the breach thereof, the
plaintiff carries the same burden in a negligence action against a hospital. As
stated above, an action alleging the hospital's own negligence in credentialing
physicians is derivative from the negligence of the physician. Procedurally, if a
claim against a physician is dismissed, leaving only the claim against the
hospital, the plaintiff still has to present evidence of the doctor's negligence in
. order to prove causation in his or her case,against the hospital. If a claim
· against the physician is not dismissed, best practice involves bifurcating the
trials. Bifurcation allows for clear presentation of the issues to the jury as well
as responsible use of judicial resources. If the plaintiff does not prevail in the
24 malpractice action against the physician, a subsequent trial against the
hospital is neither necessary nor warranted.
We recognize that trial courts are entrusted with the overwhelming tasks
of deciphering factual and procedural issues, which are often magnified in
complex tort cases. In trying to make sense of the case before it, trial courts
must be careful to remain astute to the underlying issues. The plaintiffs herein
urged consideration of a novel cause that, in reality, is not novel at all.
IV. CONCLUSION.
For the foregoing reasons, this Court declines to recognize a new tort pf
n_egligent credentialing in the Com~onwealth. To that extent the Court of
Appeals' decisi.on is reversed. However, because plaintiffs Adams and Jones
still have viable causes of action under common law negligence, we remand ) those cases to the respective trial courts for further proceedings. We affirm the
Court of Appeals' decision upholding summary judgment in the Spaldings'
case, and the order of dismissal in that trial court is reinstated.
Minton, C.J.; Cunningham, Hughes, Keller, VanMeter and Wright, JJ.,
concur. Venters, J., not sitting.
25 COUNSEL FOR LAKE CUMBE~LAND REGIONAL HOSPITAL, LLC AND SPRING VIEW HOSPITAL, LLC:
Brian Todd Thompson Millicent Ann Tanner Eleanor M.B. Davis Chad Owens Propst Joseph Wright . Thompson Miller & Simpson PLC
COUNSEL FOR APPELLEES/ APPELLAN'DS: JOYCE SPALDING AND JOSEPH SPALDING (JOYCE SPALDING AS EXECUTRIX OF THE ESTATE OF JOSEPH PAUL SPALDING):
Joseph Hubert Mattingly III Kaelin Goheen Reed John Elder, IV . Mattingly & Nally-Martin, PLLC
COUNSEL FOR APPELLEE, KAREN JONES (NOW EPLEY):
Joseph Hubert Mattingly III Kaelin Goheen Reed John Elder, IV Mattingly & Nally-Martin, PLLC
· Kandice D. Engle-Gray
COUNSEL FOR APPELLEE, HELEN ADAMS:
Stephen M. O'Brien, III David Coomer Adam J. Stigall Stephen M. O'Brien, III, PLLC
COUNSEL FOR AMICUS CURIAE, KENTUCKY HOSPITAL ASSOCIATION:
Wesley· Reed Butler· Benjamin M. Fiechter Kimberly Goetz DeSimone Barnett Benv~nuti & Butler PLLC ,'
26 COUNSEL FOR AMICUS CURIAE, KENTUCKY JUSTICE ASSOCIATION:
Paul A. Casi, II Jeffrey Wayne Adamson Paul Casi, III Paul A. Casi, II, P.S.C.
Kevin Crosby Burke Burke Neal PLLC
COUNSEL FOR AMICUS CURIAE, KENTUCKY MEDICAL ASSOCIATION:
Sarah Spurlock Charles J. Cronan IV Bethany A. Breetz Stites & Harbison PLLC
I 27