RENDERED: SEPTEMBER 1, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0390-MR
THE PARKWAY EXTENDED CARE CENTER, INC. D/B/A PARKWAY MEDICAL CENTER A/K/A PARKWAY REHABILITATION AND NURSING CENTER; ALTON CREEK, LLC; JOE OHKRULICA IN HIS CAPACITY AS ADMINISTRATOR OF THE PARKWAY EXTENDED CARE CENTER INC. D/B/A PARKWAY MEDICAL CENTER A/K/A PARKWAY REHABILITATION AND NURSING CENTER; AND PARKWAY ACQUISITION, LLC APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ERIC JOSEPH HANER, JUDGE ACTION NO. 15-CI-004690
LEO J. ELIAS, AS EXECUTOR OF THE ESTATE OF LINDA S. ELIAS, DECEASED AND LEO J. ELIAS, ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF LINDA S. ELIAS, DECEASED APPELLEES OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND LAMBERT, JUDGES.
CALDWELL, JUDGE: The Appellants challenge, inter alia, the trial court’s
applying the continuous treatment doctrine to find a nursing home negligence
claim based on a pressure injury not time-barred. As the pressure injury claim was
time-barred under the facts here, we reverse and remand for a new trial in
conformity with this Opinion.
FACTS
Linda Elias was admitted into the Parkway Extended Care Center
(“Parkway”) – a skilled nursing facility – in November 2010. Ms. Elias was ninety
years old and had many serious health problems including heart problems and
dementia. She had recently been hospitalized for a broken hip, but she had not
undergone surgery for the broken hip due to her age and health issues. She was
unable to walk and her right leg was contracted and tight when she was admitted to
Parkway.
In March 2011, a pressure ulcer on Ms. Elias’s right heel was noted.
Parkway claims its skin management team monitored the ulcer for the next several
weeks and that it took other steps such as placing special booties on her feet and
turning her once or twice an hour according to doctor’s orders. But there was a
-2- lack of documentation of such steps in Parkway’s records about Ms. Elias between
the March 2011 notation of the heel pressure injury and May 2011. By May 2011,
the heel pressure ulcer had worsened and was described as a deep tissue injury.
From May 2011 to February 2012, Ms. Elias received treatment from
a wound care specialty medical practice for the heel pressure ulcer including
debridement. In February 2012, the specialty practice ceased treating or
monitoring Ms. Elias because the heel pressure wound had essentially healed –
having been reduced to the size of a pinprick. There is no evidence of any other
pressure injuries occurring before Ms. Elias passed away in early 2015.
In late 2015, the executor of Ms. Elias’s estate filed suit against
Appellants Parkway, its administrator, and related corporate entities. (Henceforth,
we refer to Appellees as “Elias” and the Appellants collectively as “Parkway”.)
The suit did not name as defendants any of Ms. Elias’s treating doctors, who were
not Parkway employees. The case proceeded to trial on negligence claims against
Parkway, its corporate entities, and administrator.
Prior to trial, Parkway filed a motion for partial summary judgment on
all claims relating to injuries suffered more than a year prior to Ms. Elias’s death.
Parkway asserted such claims were barred by the one-year statute of limitations in
KRS1 413.140.
1 Kentucky Revised Statutes.
-3- Elias argued the continuous treatment doctrine applied so the statute
of limitations was tolled during the time Ms. Elias received treatment from
Parkway – i.e., until her death in early 2015. Parkway responded by asserting the
continuous treatment doctrine applied only to medical malpractice claims against
doctors and not to negligence claims against nursing homes.
The trial court agreed with Elias that the continuous treatment
doctrine could apply to skilled nursing facilities. It reasoned the aim of the
continuous treatment doctrine – to further the relationship of trust between patients
and physicians – should also apply to a skilled nursing facility providing treatment.
So, it denied the motion for partial summary judgment.
The case proceeded to trial. At trial, Ms. Elias’s daughter and
attorney-in-fact testified to being aware of the heel pressure ulcer in 2011 and
suspecting substandard care by Parkway to be the cause.
The medical evidence included the testimony of a treating wound care
specialist physician, who stated Ms. Elias received treatment for the heel pressure
ulcer from his clinic from May 2011 through February 2012 – with clinic treatment
ceasing upon the wound resolving to a mere pinprick size. The wound care
specialist further stated that the course of healing indicated Parkway’s staff was
following the practice’s orders. Elias’s experts criticized Parkway but admitted the
-4- heel pressure ulcer had ultimately been fully resolved – without explicitly
disputing that this occurred by the early months of 2012.
Parkway moved the trial court to enter a directed verdict on statute of
limitations grounds, which the trial court denied. The trial court and the parties
again discussed whether the continuous treatment doctrine applied. But the trial
court did not change its prior ruling that the continuous treatment doctrine applied.
The jury rendered a verdict in favor of Elias. Parkway argues it is
entitled to a new trial since, in its view, the trial court erroneously applied the
continuous treatment doctrine.
ANALYSIS
Most of Parkway’s arguments on appeal challenge the trial court’s
application of legal authority including statutes of limitation and court precedent.
We review the trial court’s interpretation and application of such legal authority de
novo. See, e.g., Adamson v. Adamson, 635 S.W.3d 72, 77 (Ky. 2021);
Commonwealth v. Reed, 647 S.W.3d 237, 243 (Ky. 2022).
The trial court’s denial of a motion for new trial is entitled to some
deference on appeal, however, and cannot be reversed except for clear error or an
abuse of discretion. See, e.g., Jefferson v. Eggemeyer, 516 S.W.3d 325, 337 (Ky.
2017); Banker v. University of Louisville Athletic Association, Inc., 466 S.W.3d
456, 460 (Ky. 2015).
-5- Trial Court Erred in Applying the Continuous Treatment Doctrine to Toll the Statute of Limitations to Claims Based on Heel Wound Under These Facts
The continuous treatment doctrine was first recognized by our
Supreme Court in Harrison v. Valentini, 184 S.W.3d 521, 524 (Ky. 2005).2 Our
Supreme Court stated: “Under this doctrine, the statute of limitations is tolled as
long as the patient is under the continuing care of the physician for the injury
caused by the negligent act or omission.” Id. (Emphasis added.)
Assuming arguendo that this doctrine could apply to injuries allegedly
caused by the negligence of a skilled nursing facility, under the facts of this case, it
still does not apply. The statute of limitations is no longer tolled once the
treatment for the injury caused by the negligence has come to an end.
The trial court reasoned that Ms. Elias continued to receive treatment
from Parkway to prevent further pressure injuries until she died. However, the
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RENDERED: SEPTEMBER 1, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0390-MR
THE PARKWAY EXTENDED CARE CENTER, INC. D/B/A PARKWAY MEDICAL CENTER A/K/A PARKWAY REHABILITATION AND NURSING CENTER; ALTON CREEK, LLC; JOE OHKRULICA IN HIS CAPACITY AS ADMINISTRATOR OF THE PARKWAY EXTENDED CARE CENTER INC. D/B/A PARKWAY MEDICAL CENTER A/K/A PARKWAY REHABILITATION AND NURSING CENTER; AND PARKWAY ACQUISITION, LLC APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ERIC JOSEPH HANER, JUDGE ACTION NO. 15-CI-004690
LEO J. ELIAS, AS EXECUTOR OF THE ESTATE OF LINDA S. ELIAS, DECEASED AND LEO J. ELIAS, ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF LINDA S. ELIAS, DECEASED APPELLEES OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND LAMBERT, JUDGES.
CALDWELL, JUDGE: The Appellants challenge, inter alia, the trial court’s
applying the continuous treatment doctrine to find a nursing home negligence
claim based on a pressure injury not time-barred. As the pressure injury claim was
time-barred under the facts here, we reverse and remand for a new trial in
conformity with this Opinion.
FACTS
Linda Elias was admitted into the Parkway Extended Care Center
(“Parkway”) – a skilled nursing facility – in November 2010. Ms. Elias was ninety
years old and had many serious health problems including heart problems and
dementia. She had recently been hospitalized for a broken hip, but she had not
undergone surgery for the broken hip due to her age and health issues. She was
unable to walk and her right leg was contracted and tight when she was admitted to
Parkway.
In March 2011, a pressure ulcer on Ms. Elias’s right heel was noted.
Parkway claims its skin management team monitored the ulcer for the next several
weeks and that it took other steps such as placing special booties on her feet and
turning her once or twice an hour according to doctor’s orders. But there was a
-2- lack of documentation of such steps in Parkway’s records about Ms. Elias between
the March 2011 notation of the heel pressure injury and May 2011. By May 2011,
the heel pressure ulcer had worsened and was described as a deep tissue injury.
From May 2011 to February 2012, Ms. Elias received treatment from
a wound care specialty medical practice for the heel pressure ulcer including
debridement. In February 2012, the specialty practice ceased treating or
monitoring Ms. Elias because the heel pressure wound had essentially healed –
having been reduced to the size of a pinprick. There is no evidence of any other
pressure injuries occurring before Ms. Elias passed away in early 2015.
In late 2015, the executor of Ms. Elias’s estate filed suit against
Appellants Parkway, its administrator, and related corporate entities. (Henceforth,
we refer to Appellees as “Elias” and the Appellants collectively as “Parkway”.)
The suit did not name as defendants any of Ms. Elias’s treating doctors, who were
not Parkway employees. The case proceeded to trial on negligence claims against
Parkway, its corporate entities, and administrator.
Prior to trial, Parkway filed a motion for partial summary judgment on
all claims relating to injuries suffered more than a year prior to Ms. Elias’s death.
Parkway asserted such claims were barred by the one-year statute of limitations in
KRS1 413.140.
1 Kentucky Revised Statutes.
-3- Elias argued the continuous treatment doctrine applied so the statute
of limitations was tolled during the time Ms. Elias received treatment from
Parkway – i.e., until her death in early 2015. Parkway responded by asserting the
continuous treatment doctrine applied only to medical malpractice claims against
doctors and not to negligence claims against nursing homes.
The trial court agreed with Elias that the continuous treatment
doctrine could apply to skilled nursing facilities. It reasoned the aim of the
continuous treatment doctrine – to further the relationship of trust between patients
and physicians – should also apply to a skilled nursing facility providing treatment.
So, it denied the motion for partial summary judgment.
The case proceeded to trial. At trial, Ms. Elias’s daughter and
attorney-in-fact testified to being aware of the heel pressure ulcer in 2011 and
suspecting substandard care by Parkway to be the cause.
The medical evidence included the testimony of a treating wound care
specialist physician, who stated Ms. Elias received treatment for the heel pressure
ulcer from his clinic from May 2011 through February 2012 – with clinic treatment
ceasing upon the wound resolving to a mere pinprick size. The wound care
specialist further stated that the course of healing indicated Parkway’s staff was
following the practice’s orders. Elias’s experts criticized Parkway but admitted the
-4- heel pressure ulcer had ultimately been fully resolved – without explicitly
disputing that this occurred by the early months of 2012.
Parkway moved the trial court to enter a directed verdict on statute of
limitations grounds, which the trial court denied. The trial court and the parties
again discussed whether the continuous treatment doctrine applied. But the trial
court did not change its prior ruling that the continuous treatment doctrine applied.
The jury rendered a verdict in favor of Elias. Parkway argues it is
entitled to a new trial since, in its view, the trial court erroneously applied the
continuous treatment doctrine.
ANALYSIS
Most of Parkway’s arguments on appeal challenge the trial court’s
application of legal authority including statutes of limitation and court precedent.
We review the trial court’s interpretation and application of such legal authority de
novo. See, e.g., Adamson v. Adamson, 635 S.W.3d 72, 77 (Ky. 2021);
Commonwealth v. Reed, 647 S.W.3d 237, 243 (Ky. 2022).
The trial court’s denial of a motion for new trial is entitled to some
deference on appeal, however, and cannot be reversed except for clear error or an
abuse of discretion. See, e.g., Jefferson v. Eggemeyer, 516 S.W.3d 325, 337 (Ky.
2017); Banker v. University of Louisville Athletic Association, Inc., 466 S.W.3d
456, 460 (Ky. 2015).
-5- Trial Court Erred in Applying the Continuous Treatment Doctrine to Toll the Statute of Limitations to Claims Based on Heel Wound Under These Facts
The continuous treatment doctrine was first recognized by our
Supreme Court in Harrison v. Valentini, 184 S.W.3d 521, 524 (Ky. 2005).2 Our
Supreme Court stated: “Under this doctrine, the statute of limitations is tolled as
long as the patient is under the continuing care of the physician for the injury
caused by the negligent act or omission.” Id. (Emphasis added.)
Assuming arguendo that this doctrine could apply to injuries allegedly
caused by the negligence of a skilled nursing facility, under the facts of this case, it
still does not apply. The statute of limitations is no longer tolled once the
treatment for the injury caused by the negligence has come to an end.
The trial court reasoned that Ms. Elias continued to receive treatment
from Parkway to prevent further pressure injuries until she died. However, the
treatment for the heel pressure sore – discovered in early 2011 and allegedly
caused by poor treatment at Parkway – terminated in the early months of 2012.
And there appears to be no dispute that particular pressure sore – the injury
allegedly caused by poor treatment – had fully healed by about March 2012.
2 Our Supreme Court originally used the term “continuous course of treatment doctrine.” Valentini, 184 S.W.3d at 524. However, more recent Kentucky precedent refers to the same concept as the “continuous treatment doctrine.” See, e.g., Sneed v. University of Louisville Hospital, 600 S.W.3d 221, 226 (Ky. 2020).
-6- So, even assuming the continuous treatment doctrine could apply to
claims against a skilled nursing facility like Parkway, the statute of limitations
would have started running again in early 2012. This means that a personal injury
claim based on the heel pressure ulcer would have to be filed by early 2013 to be
timely, since a one-year statute of limitations applies to personal injury claims.
KRS 413.140(1)(a). But suit was not filed until late 2015.
Despite the trial court’s view that the continuous treatment doctrine
should apply while Ms. Elias continued to receive treatment from Parkway to
prevent further pressure injuries, precedent about the continuous treatment doctrine
does not call for tolling the statute of limitations while one receives care to prevent
further similar injuries. Instead, tolling is limited to the period in which the patient
receives treatment for the injury caused by the alleged negligence. See Valentini,
181 S.W.3d at 524. See also Litsey v. Allen, 371 S.W.3d 786, 789 (Ky. App. 2012)
(statute of limitations not tolled during the time period in which patient continued
to have her physician renew her prescriptions but did not seek treatment to correct
the injury caused by poor treatment).
We need not reach the question of whether the continuous treatment
doctrine could ever apply to negligence claims against nursing homes. But as there
is no way to ascertain the extent to which the jury’s verdict and award was based
-7- on the heel pressure wound versus other alleged injuries,3 we must reverse and
remand for a new trial in which recovery for the heel pressure ulcer is not allowed.
As the evidence on retrial may differ, we decline to reach other issues
argued on appeal – including alleged error in the punitive damages award and
whether Parkway’s administrator was entitled to a directed verdict – since the
parties may relitigate these issues.
CONCLUSION
For the foregoing reasons, we REVERSE the Jefferson Circuit
Court’s judgment and REMAND for a new trial excluding evidence of the heel
pressure wound.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
John L. Tate Stephen M. Garcia Bethany A. Breetz Louisville, Kentucky Neil E. Barton Louisville, Kentucky
3 The complaint alleged and evidence was offered of injuries other than the heel pressure wound, including severe contractures, improper pain management, and improper feeding tube management. The jury instructions did not require the jury to delineate separate awards for separate physical injuries.
Elias offered medical expert testimony indicating that Ms. Elias’s being unable to undergo physical therapy for a time due to the heel pressure ulcer may have contributed to contractures. Thus, though recovery for the long-healed pressure injury itself is time-barred, we do not reach whether all mention of the heel pressure sore must be excluded on retrial.
-8-