Mark A. Woods v. Community Medical Associates, Inc. D/B/A Norton Surgical Associates ( 2022 )

RENDERED: NOVEMBER 4, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1224-MR
MARK A. WOODS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 18-CI-002199
COMMUNITY MEDICAL
ASSOCIATES, INC. D/B/A NORTON
SURGICAL ASSOCIATES AND
ALEXANDRA C. MAKI, M.D. APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, GOODWINE, AND JONES, JUDGES.
CALDWELL, JUDGE: Mark Woods appeals from orders of the Jefferson Circuit
Court granting summary judgment in favor of Community Medical Associates,
Inc. d/b/a Norton Surgical Associates (“Norton”), and Alexandra Maki, M.D. in
this medical negligence case.1 Upon careful review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Woods was scheduled to undergo a laparoscopic appendectomy on
April 18, 2017, performed by Dr. Maki. Upon inserting the surgical instrument
into Woods’ abdomen, Dr. Maki noticed an unusual amount of blood. She
removed the instrument, made an incision, and identified the source of the
bleeding. It is undisputed that there was injury to Woods’ iliac artery and gonad
vessel during the procedure. A vascular surgeon was brought in to assist Dr. Maki
in repair of the vessels. After repair of the vessels, Dr. Maki completed the
appendectomy. Woods filed a complaint in the Jefferson Circuit Court, alleging
that, due to Dr. Maki’s negligence in injuring his gonad vessel, he has experienced
erectile dysfunction since the date of the procedure.2
This case remained on the circuit court’s docket for over three years.
During that time, Woods propounded discovery upon Norton and Dr. Maki, but did
not take any depositions. The circuit court imposed a deadline for the parties to
1
The Jefferson Circuit Court entered an order granting summary judgment to Norton and Dr.
Maki on May 4, 2021. The circuit court subsequently entered an order denying Woods’ motion
to alter, amend, or vacate that order on September 17, 2021.
2
Woods’ wife also filed a loss of consortium claim. However, it was dismissed upon motion of
Norton and Dr. Maki because she was not married to Woods at the time he underwent the
appendectomy. She did not appeal and is not a party to this appeal.
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identify expert witnesses prior to trial. Woods failed to meet the deadline. Shortly
thereafter, Norton and Dr. Maki filed a motion for summary judgment, claiming
Woods could not prove his claims without expert testimony. After briefing, the
circuit court granted the motion for summary judgment. This appeal followed.
On appeal, Woods argues the operative reports of Dr. Maki and the
vascular surgeon, combined with discovery responses – which he characterizes as
judicial admissions – demonstrate medical negligence. He also claims the judicial
admissions demonstrate a lack of informed consent. Woods argues he does not
need an expert witness because res ipsa loquitur applies and the circuit court erred
in granting summary judgment to the appellees. We disagree.
STANDARD OF REVIEW
When a circuit court grants a motion for summary judgment, the
standard of review for the appellate court is de novo because only legal issues are
involved. Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705 (Ky. App.
2004). We must consider the evidence of record in the light most favorable to the
non-movant (i.e., Woods) and determine whether the circuit court correctly found
there was no genuine issue as to any material fact and that the moving party was
entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 780 (Ky.
App. 1996).
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Summary judgment is appropriate where “the pleadings, depositions,
answers to interrogatories, stipulations, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Kentucky Rule
of Civil Procedure (CR) 56.03. The movants bear the initial burden of
demonstrating that there is no genuine issue of material fact in dispute. The party
opposing the motion then has the burden to present “at least some affirmative
evidence showing that there is a genuine issue of material fact for trial.” Steelvest
Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky. 1991). A party
responding to a properly supported summary judgment motion cannot merely rest
on the allegations in his pleadings. Continental Casualty Co. v. Belknap Hardware
& Manufacturing Co., 281 S.W.2d 914 (Ky. 1955).
ANALYSIS
Except in very limited circumstances, the plaintiff in a medical
negligence case
is required to present expert testimony that establishes (1)
the standard of skill expected of a reasonably competent
medical practitioner and (2) that the alleged negligence
proximately caused the injury. See [Meador v. Arnold,
94 S.W.2d 626, 631 (Ky. 1936)]; Johnson v. Vaughn,
370 S.W.2d 591, 596-97 (Ky. 1963); and Reams v.
Stutler, 642 S.W.2d 586, 588 (Ky. 1982).
The opinion of the expert must be based “on
reasonable medical probability and not speculation or
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possibility.” Sakler v. Anesthesiology Associates, P.S.C.,
50 S.W.3d 210, 213 (Ky. App. 2001). To survive a
motion for summary judgment in a medical malpractice
case in which a medical expert is required, the plaintiff
must produce expert evidence or summary judgment is
proper. See Turner v. Reynolds, 559 S.W.2d 740, 741-42
(Ky. App. 1977).
Kentucky consistently recognizes two exceptions
to the expert witness rule in medical malpractices cases.
See Perkins v. Hausladen, 828 S.W.2d 652, 655 (Ky.
1992). Both exceptions involve the application of the res
ipsa loquitur doctrine and permit the inference of
negligence even in the absence of expert testimony. See
id. at 654. One exception involves a situation in which
“ʻany layman is competent to pass judgment and
conclude from common experience that such things do
not happen if there has been proper skill and care’;
illustrated by cases where the surgeon leaves a foreign
object in the body or removes or injures an inappropriate
part of the anatomy. The second occurs when ‘medical
experts may provide a sufficient foundation for res ipsa
loquitur on more complex matters.’” Id. at 655 (quoting
Prosser and Keeton on Torts, Sec. 39 (5th ed. 1984)). An
example of the second exception would be the case in
which the defendant doctor makes admissions of a
technical character from which one could infer that he or
she acted negligently. See id.
Andrew v. Begley, 203 S.W.3d 165, 170-71 (Ky. App. 2006).
Woods argues the facts of this case do not require expert testimony.
For example, Woods points to photographic exhibits and operative reports
submitted to the circuit court and contends they indicate “that [Dr. Maki] placed
the trocar in the lower abdomen directly above the iliac artery. Intent to remove
the appendix on the other side of the stomach, the right side of the abdomen where
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the [appendix] is located. Obviously not a good location to insert the trocar.”3
(Emphasis in original.) This begs the question – obvious to whom? Woods
appears to be arguing that, under this set of facts, “any layman is competent to pass
judgment and conclude from common experience that such things do not happen if
there has been proper skill and care[.]” Andrew, 203 S.W.3d at 170. We are
unpersuaded. Without expert testimony, the jury would not know if Dr. Maki’s
actions were standard procedure for a laparoscopic appendectomy, or whether she
breached the duty of care by inserting the trocar where she did.
Woods additionally characterizes the discovery responses of Dr. Maki
as judicial admissions. A judicial admission “may be defined to be a formal act
done in the course of judicial proceedings which waives or dispenses with the
necessity of producing evidence by the opponent and bars the party himself from
disputing it; and, as a natural consequence, allows the judge to direct the jury to
accept the admission as conclusive of the disputed fact.” Sutherland v. Davis, 151
S.W.2d 1021, 1024 (Ky. 1941). We again disagree. Although Dr. Maki admitted
an injury occurred to the left iliac artery and left gonad vessel in her answers to
interrogatories, at no point does Dr. Maki admit she deviated from the standard of
care. We reiterate that only expert testimony could provide evidence of negligence
in light of Dr. Maki’s operative notes and discovery responses. The average
3
See page 3 of Appellant’s brief.
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person does not know if Dr. Maki’s attempt to enter Woods’ abdomen on the left
side was standard procedure or negligence. Nor does the average person possess
the anatomical and surgical knowledge to decipher the operative notes of Dr. Maki
and the vascular surgeon who assisted her. Stated differently, there are no facts or
circumstances from which negligence can be inferred without expert testimony.
The case at bar is not analogous to a situation in which a surgeon left a foreign
object in the body or removed the incorrect limb. See Andrew, 203 S.W.3d at 170.
We agree with the reasoning of the appellees that, should Woods’ argument
prevail, any physician describing an injury in a medical record later produced
during discovery would be effectively making a legal admission of liability. This
would, for all practical purposes, replace negligence with strict liability.4 Woods’
argument must fail.
We are similarly unpersuaded by Woods’ assertion that expert
testimony is not needed regarding his claim of lack of informed consent. Woods
claims he was not informed of the possibility an artery or vein could be lacerated
during the procedure, nor that he could end up experiencing erectile dysfunction as
4
“Strict liability is a judicial doctrine which relieves a plaintiff from proving specific acts of
negligence and protects him from certain defenses.” Carmical v. Bullock, 251 S.W.3d 324, 326
(Ky. App. 2007) (internal quotations marks omitted).
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a result of the appendectomy. We first turn to Kentucky’s informed consent
statute, KRS5 304.40-320, which states, in relevant part
[i]n any action brought for treating, examining, or
operating on a claimant wherein the claimant’s informed
consent is an element, the claimant’s informed consent
shall be deemed to have been given where:
(1) The action of the health care provider in
obtaining the consent of the patient or
another person authorized to give consent
for the patient was in accordance with the
accepted standard of medical or dental
practice among members of the profession
with similar training and experience; and
(2) A reasonable individual, from the
information provided by the health care
provider under the circumstances, would
have a general understanding of the
procedure and medically or dentally
acceptable alternative procedures or
treatments and substantial risks and hazards
inherent in the proposed treatment or
procedures which are recognized among
other health care providers who perform
similar treatments or procedures[.]
We begin by noting we find it particularly problematic that Woods
relies on caselaw that has been overruled to support the arguments he makes
regarding informed consent. The cases relied on by Woods are Sargent v. Shaffer,
467 S.W.3d 198 (Ky. 2015); and Argotte v. Harrington, 521 S.W.3d 550 (Ky.
5
Kentucky Revised Statute.
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2017). Both Sargent and Argotte ruled that expert testimony was not always
necessary to demonstrate that a risk associated with a particular procedure was or
was not “substantial” as provided in KRS 304.40-320(2). However, in overruling
those cases, the Kentucky Supreme Court stated,
[i]ndeed, determining whether a particular risk is
substantial is not only a matter best addressed by the
medical community and therefore an element requiring
expert testimony, but that is what a plain reading of KRS
304.40-320(2) requires, i.e., “substantial risks and
hazards inherent in the proposed treatment or procedures
which are recognized among other health care providers
who perform similar treatments or procedures.” To the
extent that Sargent and Argotte suggest that the
substantiality of a risk is a jury question that does not
depend on medical evidence those holdings are
overruled.
University Medical Center, Inc. v. Shwab, 628 S.W.3d 112, 129 (Ky. 2021).6
Accordingly, under Shwab, expert testimony is required to understand
whether the injuries suffered by Woods (i.e., injury to the iliac artery and gonad
vessel) would qualify as “inherent” or “substantial” to a laparoscopic
appendectomy, and of which he should have been informed. This requirement of
Shwab is fatal to Woods’ argument regarding informed consent.
KRS 304.40-320(1) also requires expert testimony on its face. There
is simply no other way of knowing whether, in obtaining consent, a healthcare
6
Notably, the plaintiff in Sargent did in fact have an expert testify that the defendant doctor’s
explanation of the risks involved did not satisfy the standard for accepted medical practice.
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provider acted “in accordance with the accepted standard of medical or dental
practice among members of the profession with similar training and experience[,]”
other than hearing from an expert in the field. The Kentucky Supreme Court also
addressed this in Shwab:
KRS 304.40-320 was enacted as part of a tort-reform
effort and was produced by the Governor’s Hospitals and
Physicians Professional Liability Insurance Advisory
Committee in 1975. In the Committee’s Majority
Report, they describe the statute (Section 13 of their
proposal and eventually Section 4 of Senate Bill 248 in
the 1976 Session of the General Assembly) as follows:
This section will legislatively require that
“informed consent” cases be proven by
expert testimony relating to accepted
standards of practice of the profession in
providing information, and further require
that an objective standard be applied in
determining whether that information would
likely have resulted in any different decision
by the plaintiff. The purpose of this section
is to eliminate the possibility of (1) a jury’s
speculating after the fact that the health care
provider should have told the plaintiff of a
given risk even though accepted
professional standards would not require
such advance information, and (2) a
plaintiff’s testifying that had he known of an
unforeseeable or unlikely injury he would
not have consented to the recommended
health care.
Shwab, 628 S.W.3d at 130 (emphasis added).
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Woods contends the informed consent form he signed was “bare
boned” and “deficient.”7 However, without expert testimony, there is no way of
knowing whether the form used by Dr. Maki and Norton and signed by Woods fell
within the accepted standard of practice in the medical profession in terms of the
information it contained on its face.
Finally, Woods’ argument that res ipsa loquitur is applicable is simply
a repackaging of his previous arguments. The Kentucky Supreme Court has
defined res ipsa loquitur in medical negligence cases. To wit,
the term means nothing more than whether the facts and
circumstances are such that negligence can be inferred,
even in the absence of expert testimony. As Prosser
explains, res ipsa loquitur is a “Latin phrase, which
means nothing more than the thing speaks for itself,” and
is simply “[o]ne type of circumstantial evidence.”
Prosser and Keeton on Torts, Sec. 39 (5th ed. 1984).
Speaking to how the doctrine applies to the “question of
duty . . . in cases of medical malpractice,” Prosser
advises that “ordinarily” negligence cannot be inferred
simply from an “undesirable result”; expert testimony is
needed. Id. at 256.
Perkins, 828 S.W.2d at 654-55.
This Court has previously identified that any exceptions to having an
expert in a medical negligence case lie within the doctrine of res ipsa loquitur (i.e.,
when “any layman is competent to pass judgment and conclude from common
7
See page 7 of Appellant’s brief.
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experience that such things do not happen if there has been proper skill and care”
or when “medical experts may provide a sufficient foundation for res ipsa loquitur
on more complex matters.” Andrew, 203 S.W.3d at 170). Accordingly, we decline
to further address this argument.
CONCLUSION
For the foregoing reasons, the order of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT BRIEF FOR APPELLEES
FOR APPELLANT: ALEXANDRA C. MAKI, M.D. AND
COMMUNITY MEDICAL
Stephen P. Imhoff ASSOCIATES D/B/A NORTON
Louisville, Kentucky SURGICAL ASSOCIATES:
David B. Gazak
Robert J. Shilts
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLEES:
David B. Gazak
Louisville, Kentucky
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