Leila Salisbury, as of the Estate of Holly Buckner Salisbury v. Scott Roth, Md ( 2023 )

RENDERED: JANUARY 6, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0140-MR
LEILA SALISBURY, AS EXECUTRIX
OF THE ESTATE OF HOLLY
BUCKNER SALISBURY APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE THOMAS L. TRAVIS, JUDGE
ACTION NO. 19-CI-03000
SCOTT ROTH, MD; HEATHER
FROHMAN-SINNER, MD; HENRIK
O. BERDEL, MD; KYLE M. BESS,
MD; SHYANIE KUMAR, MD; UK
HEALTHCARE; UNIVERSITY OF
KENTUCKY; AND UNIVERSITY OF
KENTUCKY MEDICAL CENTER APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CETRULO, COMBS, AND GOODWINE, JUDGES.
GOODWINE, JUDGE: Leila Salisbury, as executrix of the estate of Holly
Buckner Salisbury (“estate”) appeals from an order of the Fayette Circuit Court
denying the estate’s motion to file a second amended complaint to add Scott Roth,
MD (“Dr. Roth”) as a defendant. The circuit court found the estate’s claims
against Dr. Roth were time barred. After careful review, finding no error, we
affirm.
The circuit court summarized the background of this case as follows:
In this medical malpractice action, the Plaintiff
alleges that the Decedent, Holly Salisbury [(“Holly”)],
suffered iatrogenic injuries to major blood vessels during
two separate procedures conducted at the University of
Kentucky. The first surgery, performed under the
direction of Dr. Roth, was one for an elective hernia
repair, which occurred at Good Samaritan Hospital on
July 24, 2018. During the course of that surgery, the
Decedent’s gastric artery was injured, resulting in
significant blood loss. Due to the loss of blood, the
Decedent’s body temperature began to drop, prompting
Chandler Medical Center providers under the direction of
Henrik Berdel, M.D., and Heather Frohman-Sinner,
M.D., to place a catheter in an attempt to warm her up. A
complication in the placement led to an injury to the
Decedent’s left iliac vein. Ms. Salisbury passed away
four days later, on July 28, 2018.
The Plaintiff filed her Complaint on August 16,
2019, and her Amended Complaint on August 19, 2019.
Dr. Roth, who injured the Decedent’s gastric artery
during the elective hernia repair, was not named as a
party in these initial pleadings. According to the
Plaintiff, although it was known that Dr. Roth was
responsible for the injury to the Decedent’s gastric artery,
he was not originally named as a Defendant because such
injuries are known and acceptable complications during
hernia repairs, and his operative report describes him
recognizing the injury and attempting to properly manage
it.
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The Plaintiff now wishes to add Dr. Roth as a
party because her experts believe that his August 20,
2021, deposition testimony contradicts the description in
his operative report. Specifically, the operative report
explains that his repair of the artery resulted in minimal
blood loss. However, the Plaintiff’s experts concluded
that Dr. Roth improperly staunched the bleeding artery
during the hernia repair by stapling only a branch vessel
of the artery, which then necessitated a second attempt to
fix the artery. As a result of this alleged breach of the
standard of care, the Plaintiff asserts that the Decedent
lost approximately one-half of her blood volume before
her transfer to Chandler Medical Center.
Record (“R.”) at 461-62 (footnote omitted).
The estate filed a CR1 15.01 motion for leave to file a second
amended complaint seeking to add Dr. Roth as a party. Dr. Roth entered a special
appearance to argue the second amended complaint was time barred. The circuit
court heard oral argument on the motion. At the conclusion of the hearing, the
circuit court permitted the parties to file supplemental briefs and took the matter
under advisement.
On December 15, 2021, the circuit court entered an order denying the
estate’s motion to file a second amended complaint. The circuit court found as
follows:
The Court finds that there are no genuine issues of
material fact even when considering the facts in a light
most favorable to the Plaintiff. Prior to the expiration of
the statute of limitations, the Plaintiff possessed
1
Kentucky Rules of Civil Procedure.
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sufficient information putting her on notice of a possible
claim against Dr. Roth. His identity was clearly known
as the surgeon who performed the hernia operation and
who, in the course thereof, cut the gastric artery. The
medical records were in Plaintiff’s possession, and CR
27.01(1) would have afforded Plaintiff an opportunity to
depose Dr. Roth before the statute of limitations expired.
There is no claim of concealment, deception, or other
applicable circumstances recognized by the Appellate
Court that would toll the statute of limitations utilizing
the “discovery rule.”
R. at 466.
On appeal, the estate argues its claims against Dr. Roth were not time
barred for three reasons: (1) the discovery rule applies; (2) it was entitled to rely
on the expert opinions it obtained as required by KRS2 411.167 and ethical
standards; and (3) the statute of limitations is a factual issue precluding dismissal
before even allowing the estate to file a second amended complaint.
In reviewing a denial of a motion to amend the complaint, we apply
the following standard of review:
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. Bank One,
Kentucky, N.A. v. Murphy, 52 S.W.3d 540 (Ky. 2001).
Ultimately, a trial court is vested with the discretion to
determine whether to allow an amended pleading, and its
decision will not be disturbed absent an abuse of that
discretion. Lambert v. Franklin Real Estate Co., 37
2
Kentucky Revised Statutes.
-4-
S.W.3d 770, 779 (Ky. App. 2000).
Insight Kentucky Partners II, L.P. v. Preferred Automotive Services, Inc., 514
S.W.3d 537, 555 (Ky. App. 2016).
First, the estate argues, under the discovery rule, it could not have
known of Dr. Roth’s potential liability until his August 20, 2021, deposition.
Generally, medical malpractice actions must be filed “within one (1) year after the
cause of action accrued[.]” KRS 413.140(1)(e). However, when a prospective
plaintiff “dies before the expiration of the time limited for its commencement and
the cause of action survives,” the estate administrator may file an action on behalf
of the decedent “after the expiration of that time, if commenced within one (1) year
after the qualification of the representative.” KRS 413.180(1).
Dr. Roth performed Holly’s initial surgery on July 24, 2018, and she
died on July 28, 2018. The executrix was appointed on September 5, 2018. Thus,
the estate was required to file any medical malpractice claims arising out of
Holly’s death by September 5, 2019.
The estate argues its claims are still timely under the discovery rule in
KRS 413.140(2),3 which provides: “the cause of action shall be deemed to accrue
3
KRS 413.140(2) was held to be unconstitutional by McCollum v. Sisters of Charity of Nazareth
Health Corp., 799 S.W.2d 15, 17-18 (Ky. 1990), to the extent it placed a five-year cap on an
individual’s ability to bring a negligence or malpractice action against those professionals listed
in KRS 413.140(1)(e).
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at the time the injury is first discovered or in the exercise of reasonable care should
have been discovered[,]” and the action must be filed within five years of when the
negligence occurred. The estate asserts that it could not have known of Dr. Roth’s
potential liability until his August 20, 2021, deposition, which he gave as a non-
party fact witness. The estate admits it “knew that Dr. Roth harmed or damaged
Holly’s gastric artery during the hernia repair surgery. But knowledge of ‘harm’ is
not what is required to trigger the statute of limitations. The [e]state did not and
could not know that Dr. Roth’s actions amounted to a legal injury.” Appellant’s
Brief at 10-11. The estate further claims it relied on medical expert opinion in
initially determining Dr. Roth’s actions were not below the standard of care.
However, the estate’s interpretation of the discovery rule is incorrect.
“[A] cause of action will not accrue under the discovery rule until the plaintiff
discovers or in the exercise of reasonable diligence should have discovered not
only that he has been injured but also that his injury may have been caused by the
defendant’s conduct.” Vannoy v. Milum, 171 S.W.3d 745, 749 (Ky. App. 2005)
(quoting Louisville Tr. Co. v. Johns-Manville Products Corp., 580 S.W.2d 497,
501 (Ky. 1979)). The relevant question in determining whether the discovery rule
applies is: “Does the statute start to run when the surgery patient discovers the
sponge or when an attorney tells the patient that legal action lies against the
surgeon? Obviously the answer must be with the discovery that a wrong has been
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committed and not that the party may sue for the wrong.” Conway v. Huff, 644
S.W.2d 333, 334 (Ky. 1982). Additionally, in cases where the injured person dies,
our Supreme Court has held that a cause of action accrues at the date of death
because “death is the injury that put appellants on notice to investigate.”
McCollum v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15, 19 (Ky.
1990).
The estate’s argument is contrary to settled Kentucky case law. The
estate admits it knew Dr. Roth injured Holly when he damaged her artery during
the initial surgery, and she tragically died a few days later. That is all the
discovery rule requires for a claim to accrue. Thus, the circuit court correctly
determined the estate’s claims against Dr. Roth were time barred.
Second, the estate argues it was entitled to rely on the expert opinions
obtained as required by KRS 411.167 and ethical standards. The estate asserts its
initial August 2019 complaint was subject to KRS 411.167, which requires
plaintiffs to “file a certificate of merit with the complaint” declaring that a medical
expert believes “there is reasonable basis to commence the action[.]” KRS
411.167(1) and (2)(a). Only one certificate of merit is “required for an action even
if more than one (1) defendant has been named in the complaint or is subsequently
named.” KRS 411.167(3).
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The estate asserts it consulted with two qualified experts who opined
the injury to Holly’s gastric artery was an unfortunate but known complication and
was not a breach of the standard of care. The estate argues it had the right to rely
on the experts’ affidavits in declining to initially name Dr. Roth as a defendant.
Dr. Roth points out that the estate did not submit the expert’s affidavit
until it filed a CR 59.05 motion after the circuit court entered an order denying the
estate’s motion to amend the complaint. “A party cannot invoke CR 59.05 to raise
arguments and to introduce evidence that should have been presented during the
proceedings before the entry of the judgment.” Gullion v. Gullion, 163 S.W.3d
888, 893 (Ky. 2005). Unfortunately, because the estate did not file the expert
affidavits with the motion to amend the complaint, the circuit court could not
consider them.
As this novel argument is not properly before us, we cannot pass on
the question of how KRS 411.167 affects the accrual of a medical malpractice
claim when a qualified expert determines there is not a reasonable basis to
commence an action. In this case, KRS 411.167(3) arguably would have applied,
rendering only one certificate of merit necessary even though there are multiple
defendants. So even if this issue were properly before us, this provision would
likely have also prevented us from passing on the accrual question.
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Finally, the estate argues the statute of limitations is a factual issue
precluding dismissal before allowing the estate to file a second amended
complaint. The estate’s second amended complaint was obviously futile and failed
to state a claim on which relief could be granted as its claims against Dr. Roth were
time barred. See Insight Kentucky Partners II, L.P., 514 S.W.3d at 555. The
circuit court did not abuse its discretion in denying the estate’s motion to amend
the complaint.
Under this final argument, the estate makes an underdeveloped,
unpreserved argument that Dr. Roth fraudulently concealed his negligence by way
of his alleged incomplete operative reports. As this argument is unpreserved and
conclusory, we decline to address it.
For the foregoing reasons, we affirm the order of the Fayette Circuit
Court.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Kevin C. Burke William E. Thro
Jamie K. Neal Lexington, Kentucky
Louisville, Kentucky
Margaret M. Pisacano
James M. Bolus, Jr. Lexington, Kentucky
Louisville, Kentucky
Bradley A. Case
Stephen J. Mattingly
Louisville, Kentucky
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