RENDERED: JULY 10, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-1137-MR
THOMAS MILLER AND WANDA MILLER APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE DIANE MINNIFIELD, JUDGE ACTION NO. 24-CI-01624
UNIVERSITY OF KENTUCKY MEDICAL CENTER; DR. JITESH A. PATEL; AND DR. VASHISHT MADABHUSHI APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, A. JONES, AND MOYNAHAN, JUDGES.
JONES, A., JUDGE: Thomas Miller and Wanda Miller (collectively, “the
Millers”) appeal from orders of the Fayette Circuit Court dismissing their medical
negligence and loss of consortium claims against the University of Kentucky
Medical Center (“UKMC”), Dr. Jitesh Patel, and Dr. Vashisht Madabhushi (collectively, “Appellees”). Although the Millers filed their complaint within the
applicable one-year statute of limitations, the circuit court concluded that the
action was not timely because the summonses initially issued on April 30, 2024,
were not issued in good faith as required by CR1 3.01 and KRS2 413.250.
Specifically, the circuit court found that the Millers failed to take any meaningful
action toward service between the issuance of the summonses and the expiration of
the statute of limitations; therefore, the action did not commence until a second set
of summonses was issued after the limitations period had expired. The circuit
court also dismissed the Millers’ claims against UKMC on governmental-
immunity grounds and denied the Millers’ motion to amend their complaint.
Upon review, we conclude that the circuit court correctly determined
that the Millers failed to commence this action within the applicable limitations
period. We further conclude that the circuit court properly dismissed the claims
against UKMC on the alternative basis that it was entitled to governmental
immunity and did not abuse its discretion in denying the Millers’ motion to amend
their complaint. Accordingly, we affirm.
1 Kentucky Rules of Civil Procedure. 2 Kentucky Revised Statutes.
-2- I. BACKGROUND
On May 2, 2023, Thomas underwent surgery at UKMC to remove a
tumor in his bowel. Dr. Patel and Dr. Madabhushi performed the surgery. During
the procedure, Thomas’s right ureter was completely severed. This injury was
discovered on May 12, 2023, after Thomas experienced postoperative
complications. The parties agree that May 12, 2024, was the final day of the
applicable statute of limitations for a medical negligence claim. KRS
413.140(1)(e) & (2).
On April 30, 2024, the Millers filed a complaint in the Fayette Circuit
Court asserting medical negligence and loss-of-consortium claims against UKMC,
Dr. Patel, Dr. Madabhushi, and unknown defendants. On the same day, the circuit
court clerk issued summonses for the named defendants and returned them to the
Millers’ counsel pursuant to CR 4.01(1)(c).
The Millers’ counsel did not attempt to serve any of the Appellees
before the statute of limitations expired on May 12, 2024. Rather, her efforts were
directed at securing waivers from the Appellees by contacting Brad Case, a local
private attorney whom she knew had represented UKMC in other actions. On May
21, 2024, Attorney Case explicitly informed the Millers’ counsel that he had not
been engaged to represent UKMC in the Miller matter. Attorney Case
-3- recommended that the Millers’ counsel contact UKMC’s risk management office
directly.
Approximately forty-two days later, on July 2, 2024, the Millers’
counsel had a second set of summonses issued. UKMC and Dr. Patel were served
by certified mail and received service on July 8, 2024. Shortly thereafter, UKMC
and Dr. Patel moved to dismiss the complaint, arguing that the action had not been
timely commenced within the statute of limitations because the original
summonses had not been issued in good faith for purposes of CR 3.01 and KRS
413.250.
By order entered August 30, 2024, the circuit court dismissed the
claims against UKMC and Dr. Patel. The circuit court concluded that the Millers
had failed to demonstrate a good-faith intention to have the April 30, 2024,
summonses served presently or in due course, and that the action was therefore not
commenced until the second summonses were issued after the statute of limitations
had expired. The circuit court further concluded that UKMC was entitled to
governmental immunity.
Dr. Madabhushi was served on May 13, 2025, through Kentucky’s
long-arm statute after he had relocated outside Kentucky. He likewise moved to
dismiss on statute-of-limitations grounds. The Millers subsequently moved the
-4- circuit court to reconsider its prior rulings and also sought leave to file an amended
complaint.
Following a hearing, the circuit court entered an order on August 14,
2025, denying the Millers’ motion to amend, denying their request for
reconsideration, and dismissing the claims against Dr. Madabhushi. This appeal
followed.3
II. ANALYSIS
A. The Millers Failed To Timely Commence Their Action.
“[W]here the pertinent facts are not in dispute, the validity of the
defense of the statute of limitations can and should be determined by the court as a
matter of law.” Smith v. Fletcher, 613 S.W.3d 18, 24 (Ky. 2020) (quoting
Emberton v. GMRI, Inc., 299 S.W.3d 565, 572–73 (Ky. 2009)). In this case, “there
is no dispute concerning the operative facts concerning the time elements
involved.” Louisville Trust Co. v. Johns–Manville Prods. Corp., 580 S.W.2d 497,
501 (Ky. 1979). Therefore, our review is of a question of law, and we review
questions of law de novo. Community Financial Servs. Bank v. Stamper, 586
S.W.3d 737, 741 (Ky. 2019).
3 The Millers indicated they seek review of the circuit court’s orders denying their CR 59.05 motions to alter, amend, or vacate, as well as the underlying orders of dismissal. “Our case law is clear, however, that there is no appeal from the denial of a CR 59.05 motion. The denial does not alter the judgment. Accordingly, the appeal is from the underlying judgment, not the denial of the CR 59.05 motion.” Ford v. Ford, 578 S.W.3d 356, 366 (Ky. App. 2019).
-5- A civil action is commenced by “the filing of a complaint with the
court and the issuance of a summons or warning order thereon in good faith.” CR
3.01. Similar language appears in KRS 413.250, which provides that an action is
commenced for statute-of-limitations purposes when the first summons or process
is issued in good faith from a court having jurisdiction of the cause of action.
“This means that the summons must be issued with a good faith intention that it be
served presently or in due course.” Browning Mfg. Div. v. Paulus, 539 S.W.2d
296, 298 (Ky. 1976); Asher v. Bishop, 482 S.W.2d 769, 770 (Ky. 1972) (“A civil
action is begun by the filing of a complaint and the issuance of a summons or
warning order in good faith, CR 3, and not by the actual service of process.”).
“The taking out of summons is presumptive evidence of an intention
to have it served in due course, but that presumption may be rebutted by the facts.”
Louisville & N.R. Co. v. Little, 95 S.W.2d 253, 255 (Ky. 1936). “The issuance of a
summons does not commence an action unless accompanied by an intent that the
summons be served in due course.” Whittinghill v. Smith, 562 S.W.2d 649, 650
(Ky. App. 1977). “In other words, causing a summons to be issued by the clerk
conditionally is not causing it to be issued in good faith.” Little, 95 S.W.2d at 255.
“Action and intention combined constitute[] the commencement of the suit,
because a summons filled out and signed with no intention of having it served is
-6- altogether inoperative.” Id. There must be some good-faith intentional action
directed at attending to service. Id.
That action, however, does not have to be perfect. Roehrig v.
Merchants & Businessmen’s Mut. Ins. Co., 391 S.W.2d 369, 370 (Ky. 1965). For
example, serving the wrong person or attempting to serve the right person at the
wrong address has been held sufficient. Id.; Hausman’s Adm’r v. Poehlman, 236
S.W.2d 259, 260 (Ky. 1951); Jones v. Baptist Healthcare System, Inc., 964 S.W.2d
805, 808 (Ky. App. 1997); Arlinghaus Builders, Inc. v. Kentucky Public Service
Comm’n, 142 S.W.3d 693, 697 (Ky. App. 2003).
In contrast, an attorney who does nothing to move service forward
until after the statute of limitations has expired will not be deemed to have
exercised good-faith action. Brock v. Turner Fuel Co., 178 S.W.2d 427, 429 (Ky.
1944). For example, in Hearn v. Family Dollar Holdings, Inc., 519 S.W.3d 785,
787 (Ky. App. 2017), we held that the appellant did not demonstrate good faith in
holding the summons pending the outcome of settlement discussions. See also
Gibson v. EPI Corp., 940 S.W.2d 912, 913 (Ky. App. 1997); Whittinghill, 562
S.W.2d at 650.
In this case, we begin by presuming that the Millers’ act of having the
summonses issued on April 30, 2024, is evidence of their good-faith intention to
serve them in due course. Because subjective intent is nearly impossible to prove
-7- or disprove, we look for some intentional action taken toward advancing service.
The only action the Millers identify is counsel’s communications with Attorney
Case regarding whether UKMC would be willing to waive service on behalf of
itself and the other named defendants.4 They contend this is sufficient to establish
good-faith action.
The Kentucky Supreme Court considered a nearly identical argument
in Isaacs v. Caldwell, 530 S.W.3d 449 (Ky. 2017). In that case, the plaintiffs had
until July 16, 2012, to initiate an original action in circuit court seeking review of a
county planning commission’s approval of a plat amendment. A local bank was a
necessary party, and on the final day of the limitations period the plaintiffs filed
their complaint and directed the clerk to return a summons for the bank to counsel
pursuant to CR 4.01(1)(c).5 Over the next several days, counsel unsuccessfully
attempted to secure the bank’s waiver of service and later argued that those efforts
demonstrated good faith. The Supreme Court disagreed, holding that it would not
“equate the effort to secure the waiver of service with a good faith effort to have
the summons served.” Isaacs, 530 S.W.3d at 456. The Court further noted that
after the bank declined to waive service, counsel took no additional action for
4 We express no opinion regarding whether UKMC had the authority to do so. 5 The on-duty deputy clerk improperly refused to issue the summons without an address, but another deputy clerk did so the next day. Concluding that the first deputy clerk had no authority to refuse issuance of the summons, the Court deemed it issued on the same day the complaint was filed. Id. at 456.
-8- approximately three weeks before engaging a constable to serve the complaint. Id.
at 456.
The Millers assert that Isaacs is distinguishable because it involved an
administrative appeal rather than a medical negligence action. We disagree.
Pursuant to KRS 23A.010(4), an appeal to the circuit court from an administrative
agency is not a true appeal but an original action. The Supreme Court construed
that statute “as a legislative directive that the judicial review of administrative
actions shall be governed by the same procedural rules of the courts applicable to
original actions.” Isaacs, 530 S.W.3d at 454; see also Commonwealth,
Transportation Cabinet, Department of Highways v. City of Campbellsville, 740
S.W.2d 162, 164 (Ky. App. 1987). Accordingly, the Court’s analysis of CR 3.01,
CR 4.01, and KRS 413.250 applies equally here.
Likewise, we are unpersuaded by the Millers’ attempt to distinguish
Isaacs on its facts. In both cases, counsel directed the clerk to return the
summonses pursuant to CR 4.01(1)(c) and then sought to secure a waiver of
service rather than immediately proceeding with service of process. In both cases,
counsel argued that those efforts demonstrated the requisite good-faith intent to
serve the summonses in due course. And in both cases, service was not promptly
pursued after those efforts proved unsuccessful. As the Supreme Court explained
in Isaacs, an effort to secure a waiver of service is not the equivalent of an effort to
-9- have a summons served. 530 S.W.3d at 456. Under that reasoning,
communications between the Millers’ counsel and Attorney Case, standing alone,
do not establish the good-faith action necessary to commence an action.
The Millers rely on Halderman v. Sanderson Forklifts Co., Ltd., 818
S.W.2d 270 (Ky. App. 1991), for the proposition that service need not be
completed before the statute of limitations expires. That proposition is correct.
However, as discussed above, for an action to be properly commenced within the
statute of limitations, the summons must still be issued in good faith before the
limitations period expires. In Halderman, the summons was issued and placed in
the mail for service before the statute of limitations ran. Id. at 272. Such conduct
plainly demonstrates an intent to advance service. Here, by contrast, the Millers
took no comparable action directed toward effecting service until after the second
set of summonses was issued in July 2024, well past the date the statute of
limitations expired.
Appellants also assert that by accepting service of process Appellees
waived any objection regarding the timeliness of service. There is no such rule. It
is the filing of an answer, not the acceptance of service, that waives objections
related to the issuance of process. Young v. Harris, 467 S.W.2d 588, 590 (Ky.
1971) (“[T]he filing of an answer waives the right to object to the late issuance of
-10- process.”). Here, Appellees did not file answers. Rather, they filed motions to
dismiss pursuant to CR 12.02. Accordingly, no waiver occurred.
Under the circumstances presented, the circuit court correctly
concluded that the presumption arising from the issuance of the April 30, 2024
summonses was rebutted. Because the summonses were not issued with the good-
faith intention that they be served presently or in due course, the action was not
commenced within the applicable statute of limitations. The circuit court therefore
properly dismissed the Millers’ claims as untimely.
B. Dismissal of the Millers’ Claims Against UKMC on Immunity Grounds.
UKMC first argues that the Millers failed to preserve their challenge
to sovereign/governmental immunity6 because they did not provide notice to the
Attorney General pursuant to KRS 418.075(1) and CR 24.03. Both KRS 418.075
and CR 24.03 require notice to the Attorney General when a party challenges the
constitutionality of a statute. “The language of the statute and rule evinces a strong
public policy in favor of notification to the Attorney General whenever the
constitutionality of a statute is placed in issue[.]” Maney v. Mary Chiles Hosp.,
785 S.W.2d 480, 481 (Ky. 1990).
6 The Commonwealth’s public universities are “independent agenc[ies] and instrumentalit[ies] of the Commonwealth,” which are attached to the executive branch. University of Kentucky v. Moore, 599 S.W.3d 798, 809 (Ky. 2019). As such, they are more properly described as enjoying governmental, rather than sovereign immunity. See id. Accordingly, we refer to the immunity at issue as “governmental” rather than sovereign throughout this Opinion.
-11- The University, however, has not identified any statute whose
constitutionality the Millers seek to challenge. Rather, it contends that
constitutional considerations are embedded within the Millers’ challenge to
Withers v. University of Kentucky, 939 S.W.2d 340 (Ky. 1997), abrogated on other
grounds as stated in Comair Inc. v. Lexington-Fayette Urban County Airport
Corp., 295 S.W.3d 1 (Ky. 2007), and related cases. While the application of
sovereign and governmental immunity may implicate constitutional principles, the
Millers do not challenge the constitutionality of a statute. Indeed, “sovereign
immunity arises from common law” rather than from any constitutional provision
or statute. Long v. Department of Revenue, 718 S.W.3d 868, 883 (Ky. 2025).
Governmental immunity, in turn, is “a policy-derived offshoot of sovereign
immunity[.]” Caneyville Volunteer Fire Dep’t v. Green’s Motorcycle Salvage,
Inc., 286 S.W.3d 790, 801 (Ky. 2009). Accordingly, we reject the University’s
preservation argument and proceed to the merits.
The issue presented by the Millers is whether UKMC’s healthcare
operations should be regarded as proprietary in nature and therefore outside the
protection of governmental immunity. That precise argument, however, was
rejected by the Kentucky Supreme Court in Withers.
In Withers, a patient filed a medical negligence action against the
University of Kentucky based upon the alleged negligence of physicians practicing
-12- at the University hospital. The plaintiffs argued, much as the Millers do here, that
the University’s operation of a hospital constituted a proprietary activity because it
generated revenue and competed with private healthcare providers. The Supreme
Court rejected that contention, explaining:
Appellants seek to avoid the blanket of immunity by reference to Gross v. Kentucky Board of Managers, 105 Ky. 840, 49 S.W. 458 (1899), a case from the last century which holds that not every corporation created by the state is entitled to sovereign immunity. Gross was relied upon in Kentucky Center for the Arts v. Berns, Ky., 801 S.W.2d 327 (1991), in making a distinction between a governmental function and a proprietary function performed by an entity having governmental roots. Relying on the “change in performance location” example found in Berns, 801 S.W.2d at 330-31, appellants contend that in a major aspect, the University of Kentucky Medical Center is nothing more than a hospital which is in full competition with and performs the same function as private hospitals. As such, they argue that in this respect, the University should be stripped of its immunity.
The answer to this contention is simple. The operation of a hospital is essential to the teaching and research function of the medical school. Medical school accreditation standards require comprehensive education and training and without a hospital, such would be impossible. Medical students and those in allied health sciences must have access to a sufficient number of patients in a variety of settings to insure proper training in all areas of medicine. Such is essential to the mandate of KRS 164.125(1)(c).
Moreover, and even if we were so inclined, there would be no authority for a decision of this Court whereby we refused to accord an immune entity its protection under
-13- the law. Sovereign immunity is “deeply implanted in the law of the Commonwealth through Section 231 of the Kentucky Constitution.” Kestler v. Transit Authority of Northern Kentucky, Ky., 758 S.W.2d 38 (1988). Once it has been determined that an entity is entitled to sovereign immunity, this Court has no right to merely refuse to apply it or abrogate the legal doctrine. Fryman v. Harrison, Ky., 896 S.W.2d 908 (1995); Calvert Investments, Inc. v. Louisville & Jefferson Metropolitan Sewer District, Ky., 805 S.W.2d 133 (1991).
Withers, 939 S.W.2d at 343-44 (footnote omitted). The Supreme Court further
held that the University’s procurement of liability insurance did not constitute a
waiver of immunity. Id. at 344.
Withers is dispositive of the issue before us and remains binding
precedent. SCR7 1.030(8)(a) provides that “[t]he Court of Appeals is bound by and
shall follow applicable precedents established in the opinions of the Supreme Court
and its predecessor court.” Whatever merit the Millers believe their policy
arguments may have, neither this Court nor the circuit court is free to disregard
controlling Supreme Court authority. Accordingly, the circuit court properly
dismissed the claims against UKMC on immunity grounds.
C. Denial of the Millers’ Motion for Leave to File an Amended Complaint.
As an initial matter, the Millers’ appellate brief includes references to
claims for lack of informed consent and assault. Those claims were not asserted in
7 Kentucky Rules of Supreme Court.
-14- either complaint, were not included in the proposed amended complaint, and were
not presented to the circuit court as grounds for amendment. When an issue has
not been addressed in the order on appeal, there is nothing for this Court to review.
“Our jurisprudence will not permit an appellant to feed one kettle of fish to the trial
judge and another to the appellate court.” Owens v. Commonwealth, 512 S.W.3d
1, 15 (Ky. App. 2017). Because an appellant preserves for review only those
issues fairly presented to the trial court, id., we confine our review to the Millers’
request to amend their complaint to assert claims for breach of contract and unjust
enrichment.
A trial court’s decision whether to grant leave to amend pursuant to
CR 15.01 is reviewed for an abuse of discretion. Laneve v. Standard Oil Co., 479
S.W.2d 6, 9 (Ky. 1972). Although leave to amend “shall be freely given when
justice so requires,” CR 15.01 has long been construed as vesting substantial
discretion in the trial court. Graves v. Winer, 351 S.W.2d 193 (Ky. 1961). A trial
court may properly deny leave to amend where the proposed amendment would be
futile. “A trial court may deny the right to amend a pleading on the basis of ‘the
futility of the amendment itself,’ which essentially equates to a failure to state a
claim upon which relief could be granted.” Powers v. Kentucky Farm Bureau
Mutual Insurance Co., 694 S.W.3d 361, 373 (Ky. 2024).
-15- The circuit court concluded that the Millers’ proposed breach-of-
contract claims were futile because the documents upon which they relied—the
Consent for Surgery and Consent for Treatment forms—were not contracts. In
reaching that conclusion, the circuit court relied upon Kovacs v. Freeman, 957
S.W.2d 251 (Ky. 1997), in which our Supreme Court rejected the contention that a
medical consent form constituted an enforceable contract.
“Not every agreement or understanding rises to the level of a legally
enforceable contract.” Id. at 254. A valid contract requires offer and acceptance,
consideration, and sufficiently definite terms establishing the obligations of each
party. Energy Home, Div. of Southern Energy Homes, Inc. v. Peay, 406 S.W.3d
828, 834 (Ky. 2013); Kovacs, 957 S.W.2d at 254. The consent forms at issue do
not contain promises guaranteeing a particular medical result. Rather, they
authorize treatment and acknowledge the risks associated with that treatment. As
the circuit court correctly observed, they are consent documents, not contracts
guaranteeing a particular outcome.
Moreover, even assuming the existence of an enforceable contract, the
proposed amendment still fails to identify a cognizable breach. The essence of the
Millers’ claim is that the surgery was negligently performed. However, “No
malpractice liability shall be imposed upon any health care provider on the basis of
an alleged breach of any guaranty, warranty, contract or assurance of results to be
-16- obtained from any procedure undertaken in the course of providing health care,
unless such guaranty, warranty, contract or assurance is in writing and signed by
the provider.” KRS 304.40-300. The Millers have identified no written guaranty,
warranty, or assurance of a particular surgical result signed by either physician. To
the contrary, the consent documents warned Thomas of potential complications
and risks associated with the procedure.
Nor have the Millers alleged damages recoverable under a contract
theory. In Barnett v. Mercy Health Partners-Lourdes, Inc., 233 S.W.3d 723 (Ky.
App. 2007), this Court explained that the existence of a contract alone is
insufficient; a plaintiff must also demonstrate a breach and resulting damages. Id.
at 727-28. Wanda, Thomas’s wife, signed the promise-to-pay document. The
proposed amended complaint does not allege that Wanda personally paid any sums
to Appellees or otherwise suffered contract damages distinct from the personal
injuries allegedly sustained by Thomas. Instead, the damages sought are the same
damages that form the basis of the underlying medical negligence claims.
The unjust-enrichment claim fares no better. Unjust enrichment is an
equitable remedy designed to prevent one party from retaining a benefit
inequitably conferred by another. The proposed amended complaint does not
allege that Appellees received compensation for services they failed to provide.
The surgery for which treatment was sought was performed. The Millers’
-17- complaint is not that Appellees retained a benefit without providing medical
services in return, but rather that those services were negligently performed.
Kentucky law does not permit a plaintiff to transform an ordinary medical
negligence claim into an unjust enrichment claim simply by recasting the
allegations in equitable terms.
The proposed breach-of-contract and unjust-enrichment claims were
not viable as a matter of law. Additionally, the circuit court was nonplussed with
the Millers’ eleventh-hour attempt to recast their medical malpractice claims after
the action had essentially been dismissed. Based on the law and the procedural
history, we cannot conclude that the circuit court abused its discretion in denying
the Millers’ motion to amend their complaint.
III. CONCLUSION
For the foregoing reasons, the orders of the Fayette Circuit Court
dismissing the Millers’ claims and denying their motion for leave to amend are
AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
Heidi Weatherly Karen L. Keith Mount Vernon, Kentucky Virginia Leigh Schell Louisville, Kentucky
-18-