Patricia Karsner v. Marcis A. Craig, M.D. ( 2021 )


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  •                  RENDERED: JANUARY 22, 2021; 10:00 A.M.
    NOT TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2019-CA-1051-MR
    PATRICIA KARSNER                                                     APPELLANT
    APPEAL FROM HARDIN CIRCUIT COURT
    v.              HONORABLE KELLY MARK EASTON, JUDGE
    ACTION NO. 17-CI-01861
    MARCIS A. CRAIG, M.D. AND                                             APPELLEES
    HARDIN MEMORIAL
    OPINION
    AFFIRMING
    ** ** ** ** **
    BEFORE: COMBS, LAMBERT, AND K. THOMPSON, JUDGES.
    COMBS, JUDGE: This is a medical negligence case. Patricia Karsner appeals the
    summary judgment of the Hardin Circuit Court entered in favor of Hardin
    Memorial Hospital and Marcis Craig, M.D. Karsner filed the malpractice action
    claiming damages arising out of complications associated with surgery performed
    on her left arm. Because it was persuaded that the action had been filed out of
    time, the circuit court granted summary judgment. After our review, we affirm.
    The following material facts are undisputed. On September 23, 2015,
    Karsner sustained a fracture of her humerus during an altercation with local police.
    She was taken by ambulance to Hardin Memorial Hospital where her arm was
    immobilized by a splint. Several days later, Dr. Craig, an orthopedic surgeon
    employed by Hardin Memorial Hospital, performed an open reduction internal
    fixation to help repair the fractured bone. He utilized a surgical locking plate and
    surgical screws. No complications were noted.
    At Karsner’s first follow-up appointment on October 13, 2015, Dr.
    Craig noted that the incisions were healing well. He ordered physical therapy.
    During follow-up visits on November 5, 2015, and December 3, 2015, neither Dr.
    Craig nor his nurse practitioner noted any complications. Images indicated the
    humerus was “aligned and well-fixated” and that the “[h]ardware [was] intact.”
    Karsner failed to show up for appointments scheduled for January 21,
    2016, and March 10, 2016. During her next visit, on March 17, 2016, Karsner
    complained of pain in her forearm. An x-ray now indicated “non-union” of the
    humerus. Dr. Craig ordered a bone stimulator to help in healing.
    Karsner saw Dr. Craig’s nurse practitioner for another visit on April
    22, 2016. Karsner complained of pain in her upper left arm. A radiology report
    dated April 29, 2016, indicated that the bone was “partially ununited.” Evidence
    -2-
    of hardware loosening and of a broken screw was also observed. Karsner was
    advised of the hardware failure.
    On May 3, 2016, Karsner returned for another follow-up visit with Dr.
    Craig. She reported that she was continuing to feel pain. Dr. Craig again
    described the humerus as a “non-union.” Dr. Craig referred Karsner to Dr. Craig
    Roberts, a trauma specialist at the University of Louisville. Dr. Craig’s office
    scheduled an appointment for May 18, 2016, but Karsner did not appear for the
    appointment with Dr. Roberts.
    In a telephone call to Dr. Craig’s office on June 15, 2016, Karsner
    complained that she was continuing to feel significant pain in her arm and that her
    prescription for narcotic pain medication had been reduced. An office note
    documented that Karsner was crying and reported that she was contemplating
    suicide because of the pain.
    Karsner saw her primary care physician on July 8, 2016. The
    physician noted in his progress report that Karsner reported that she was treating
    with Dr. Roberts because a surgical plate had loosened in her upper arm just
    months after her surgery.
    On July 27, 2016, Karsner went to the hospital emergency room. She
    complained of pain in her left arm and a rash. Images indicated “displacement of
    the butterfly fragment of bone which is now no longer fixed with the screws.”
    -3-
    Two days later, on July 29, 2016, Karsner saw Dr. Craig for the last
    time. Dr. Craig again noted humerus “non-union.” He suggested to Karsner that
    he set up another appointment for her to see Dr. Roberts in Louisville. Karsner
    indicated to Dr. Craig that she might or might not be able to attend. However, she
    did see Dr. Roberts, and on September 16, 2016, he performed surgery to remove
    the failed surgical hardware.
    On August 16, 2017, Karsner filed a proposed complaint with a
    medical review panel. (The medical review panel procedure was subsequently
    declared unconstitutional.) On November 8, 2017, Karsner filed a medical
    malpractice action against Dr. Craig and the hospital in Hardin Circuit Court.
    Karsner alleged that Dr. Craig’s treatment had fallen below the standard of care
    and that the hospital was vicariously liable for his negligence.
    Dr. Craig and the hospital answered and denied the allegations. They
    also asserted the one-year statute of limitations as a defense.
    Karsner was deposed on October 10, 2018. With respect to Dr.
    Craig’s treatment, Karsner testified that as early as March 10, 2016, she had
    developed “an underlying concern” regarding her care. She believed that:
    the surgery hadn’t been done properly. That Dr. Craig
    shouldn’t have done it; he should have sent me to a
    trauma surgeon that day. And that the infection and my –
    my complaints of there being more pain, not less pain,
    and the complaints of infection were going – going
    unnoticed, untreated, and ignored.
    -4-
    Karsner thought Dr. Craig should not have performed the surgery and “just felt an
    underlying sense that . . . he was in over his head.” She was convinced that Dr.
    Craig was not adequately qualified to perform her surgery and was out of his depth
    “when he started talking about trauma surgeons, and I started looking into what
    trauma surgeons do, and . . . what should have been done.”
    Relying on Karsner’s deposition testimony, the hospital filed a motion
    for summary judgment on February 4, 2019. It argued that Karsner had knowledge
    of her alleged injury no later than July 2016 and, consequently, that she had failed
    to assert a timely claim. In a supplemental memorandum, the hospital raised issues
    concerning its governmental immunity.
    On March 19, 2019, Dr. Craig filed a similar motion for summary
    judgment. Relying on Karsner’s deposition testimony, Dr. Craig argued that the
    action against him had not been timely filed.
    In separate responses, Karsner argued that by the time of her
    deposition, she “had participated in far too many conversations with legal counsel
    and medical experts and other physicians to accurately testify as to what she knew
    or thought she knew” during the period that she was being treated by Dr. Craig.
    She also contended that the “continuing course of treatment doctrine” tolled the
    statute of limitations until after Dr. Roberts performed the corrective surgery. She
    argued that her treatment with Dr. Roberts constituted a continuing course of Dr.
    -5-
    Craig’s treatment because Dr. Craig had referred her to Dr. Roberts. For these
    reasons, she argued that summary judgment was not warranted.
    The circuit court conducted a hearing on the motions on April 2, 2019.
    At the end of the hearing, the court instructed the parties to present any caselaw
    that they could find pertaining to an extension of the continuing course of
    treatment doctrine as proposed by Karsner.
    Several days later, the circuit court rendered summary judgment. The
    court concluded that Karsner had discovered or should have discovered her injury
    well before her last visit with Dr. Craig in July of 2016. The court was not
    persuaded that the continuing course of treatment doctrine could be extended to
    toll the statute of limitations throughout Karshner’s treatment with Dr. Roberts and
    that Dr. Craig and the hospital were entitled to judgment as a matter of law.
    On April 10, 2019, Karsner filed a motion to supplement the record
    with a memorandum. In her memorandum, she explained that the court need not
    evaluate the continuous treatment doctrine as it pertained to Dr. Craig’s referral to
    Dr. Roberts after all. Instead, Karsner’s argument now focused upon an allegation
    that Dr. Craig had fraudulently concealed his malpractice. She argued that Dr.
    Craig failed to inform her “about some wrongdoing that may give rise to a cause of
    action” and merely referred her to Dr. Roberts. Karsner surmised that “Dr. Craig
    knew something was not right or he would not have referred [me] to a trauma
    -6-
    surgeon – yet he said nothing.” Karsner contended that the referral was deceptive
    and that Dr. Craig used it merely to “run out the statute of limitations clock.” She
    described the referral as a distraction and alleged that it was made only to “eat up”
    time on a “wild goose chase.”
    On April 12, 2019, the clerk of the Hardin Circuit Court entered the
    circuit court’s summary judgment against Karsner. The circuit court’s subsequent
    order denying Karsner’s motion to alter, amend, or vacate the judgment was
    entered on May 3, 2019.
    Five days later, on May 8, 2019, Karsner tendered electronically her
    notice of appeal. She did not pay the requisite filing fee, however. CR1
    73.02(1)(b) provides mandatorily that a notice of appeal “shall not be docketed or
    noted as filed until such payment is made.” CR 73.02(1)(b). The failure of a party
    to file timely a notice of appeal shall result in dismissal. CR 73.02(2).
    Karsner paid her filing fee on July 12, 2019. Nevertheless, the clerk’s
    handwritten notation on the face of the notice of appeal indicates that it was filed
    electronically on “5-8-19.” It also appears that she superimposed a “5” onto the
    “7” or vice-versa. The clerk’s handwritten note correctly indicates that the filing
    fee was received on July 12, 2019, and that copies of the notice of appeal were
    1
    Kentucky Rules of Civil Procedure.
    -7-
    then served upon the attorneys of record and our clerk. A copy was received by
    this Court on July 15, 2019.
    On July 24, 2019, we ordered Karsner to show cause why her appeal
    should not be dismissed for failure to file a timely notice of appeal. We have
    reviewed her response to our order as well as the responses of Dr. Craig and the
    hospital.
    In her response to our show cause order, Karsner explained that
    counsel filed the notice of appeal “with no filing fee being collected or required in
    Hardin Circuit Court.” Counsel stated that he “had no notice that there was a
    problem.” However, as time passed and counsel became concerned about
    certification of the record, he contacted the circuit court clerk. Counsel indicated
    that the clerk “admitted that it was her fault and that we should have been
    contacted by Hardin County Court Clerk regarding the filing fee. . . .” He
    explained that the clerk advised that she would certify the record once the filing fee
    was paid. The fee was promptly forwarded to her attention. In the response filed
    with this Court, counsel made no reference whatsoever to the appellate rules of
    procedure.
    In their responses, Dr. Craig and the hospital observed that counsel
    misidentified the filing tendered electronically on May 8, 2019, as “Other
    Document/Pleading” rather than as a “Notice of Appeal (Civil).” A tendered
    -8-
    “Other Document/Pleading” does not require a filing fee. Consequently, the
    electronic filing system would never have prompted counsel to pay a filing fee.
    Dr. Craig and the hospital argued that because the notice tendered on
    May 8 was unaccompanied by a filing fee until July 12, it was insufficient to
    invoke our jurisdiction pursuant to the rules of civil procedure. They relied upon
    the holding of the Kentucky Supreme Court in Excel Energy, Inc. v
    Commonwealth Institutional Securities, Inc., 
    37 S.W.3d 713
     (Ky. 2000) as
    modified on denial of reh’g (Nov. 22, 2001), as well as our reasoning in Bruner v.
    Sullivan University System, Inc., 
    544 S.W.3d 669
     (Ky. App. 2018).
    In Excel Energy, counsel tendered a notice of appeal to the Jefferson
    Circuit Clerk’s office and stamped it “filed” with the file stamp located in the
    clerk’s office. Counsel dropped the notice of appeal into an inbox for processing
    but failed to tender the filing fee. The following day, the clerk’s office notified
    counsel that the notice was inadequate without the filing fee and refused to mark
    the notice as filed until the filing fee was paid. The filing fee was promptly paid
    and the tendered notice was marked filed -- but only after the filing deadline. The
    court concluded that Excel’s notice of appeal had not been timely filed, that
    substantial compliance with the rules was not a standard applicable to the facts,
    and that automatic dismissal of the appeal was required by our rules of civil
    procedure.
    -9-
    In Bruner, counsel attempted to file a notice of appeal with the court’s
    electronic filing system on May 31, 2016 -- the date the notice was due. However,
    counsel misidentified the tendered notice as “NOTICE — OTHER.”
    Consequently, counsel was not prompted to pay the required filing fee. The filing
    fee was not paid for another week. On that day, the clerk docketed Bruner’s notice
    of appeal and marked it as filed. We ordered Bruner to show cause why his appeal
    was not subject to automatic dismissal.
    Bruner’s counsel explained that his failure timely to pay the filing fee
    was the result of his law clerk’s difficulty navigating the Jefferson Circuit Court’s
    online electronic filing system. We noted that the electronic system in question
    was implemented under the authority of the Kentucky Supreme Court’s Amended
    Order 2015-02. Section 15 of that order, entitled “Technical Difficulties; System
    Unavailability,” provides in relevant part:
    (1) Jurisdictional deadlines. Some deadlines are
    jurisdictional and cannot be extended. A technical
    failure, including a failure of the eFiling system, will not
    excuse a failure to comply with a jurisdictional deadline.
    The eFiler must ensure that a document is timely filed to
    comply with jurisdictional deadlines and, where
    necessary to comply with such deadlines, the eFiler must
    file the document conventionally accompanied by a
    certification of the necessity to do so in order to meet a
    jurisdictional deadline.
    We rejected counsel’s excuse.
    -10-
    We then considered counsel’s argument that the automated response
    that Bruner received after he tendered his notice of appeal brought the matter
    within the purview of the court’s earlier holding in Norwest Bank Minnesota, N.A.
    v. Hurley, 
    103 S.W.3d 21
     (Ky. 2003).
    In Hurley, the appellant tendered a timely notice of appeal along with
    a check in the amount of the filing fee. However, when the circuit court clerk
    received the notice of appeal, she noticed that the check was unsigned. The clerk
    contacted Norwest’s counsel, alerted him that the check was unsigned, and
    indicated that it was being returned to him for proper signature. Despite the error,
    the clerk assured Norwest’s counsel that the notice of appeal would be filed. The
    clerk did in fact note on the docket that the notice was filed on the day it was
    received -- April 20. The circuit court clerk received the signed check on May 9
    and noted on the docket that the filing fee was paid that day.
    On appeal, we concluded that the clerk violated the provisions of CR
    73.02(1) by filing Norwest’s notice of appeal because payment was not made
    timely; i.e., the docket sheet reflected that payment was made on May 9, which
    was beyond the thirty-day limit allowed in our rules of civil procedure. Relying on
    the decision of the Kentucky Supreme Court in Excel Energy, 
    37 S.W.3d 713
    , we
    concluded that the notice of appeal was untimely and dismissed the appeal.
    -11-
    On appeal, our decision was reversed. The Kentucky Supreme Court
    determined that because the clerk had docketed the notice of appeal the day it
    was filed, the notice of appeal had been timely and validly filed -- despite the
    clerk’s failure to collect the filing fee in violation of the provisions of CR
    73.02(1)(b).
    In Bruner, we determined that the facts described in Hurley were
    readily distinguishable. In Bruner, the certified record indicated that the clerk
    accepted Bruner’s notice of appeal on June 8, 2016 -- the date on which Bruner
    paid his filing fee. Therefore, we concluded that Bruner’s notice of appeal was
    untimely and dismissed the appeal.
    In the case now before us, after considering the parties’ responses, a
    three-judge motion panel observed that the Hardin Circuit Court Clerk did not
    serve the notice of appeal as properly filed until Karsner’s filing fee was received.
    Nevertheless, by order entered October 22, 2019, the divided panel passed the
    matter to this merits panel for further consideration, and the parties filed their
    briefs.
    In her brief on appeal, Karsner argues that the circuit court erred by
    failing to conclude that the statute of limitations was tolled. She cites as the basis
    for tolling: (1) Dr. Craig’s alleged fraudulent concealment of his malpractice; (2)
    her inability to discover the malpractice until she was examined by an expert
    -12-
    retained for litigation; or (3) an extension of the continuing course of treatment
    doctrine. Karsner did not address the timeliness of her notice of appeal in her
    brief.
    Because of her omission of the timeliness issue, the hospital argues
    that she has forfeited any argument that the appeal was timely filed and encourages
    the Court to dismiss the appeal on this basis. Dr. Craig and the hospital contend
    that the notice of appeal was not effective until Karsner tendered the filing fee on
    July 12, 2019. Since it was untimely as of that date, they argue that dismissal is
    required by our rules of civil procedure. In the alternative, the hospital contends
    that the Court should exercise its discretion to dismiss the appeal pursuant to the
    provisions of CR 73.02(2).
    CR 73.02(2) provides that a party’s failure to comply with procedural
    rules relating to appeals (even where the failure does not affect the validity of the
    appeal) is a ground for such action as the appellate court deems appropriate.
    Pursuant to the rule, we may (among other things) dismiss the appeal, strike the
    offending brief, or impose fines upon counsel.
    In Clark v. Workman, 
    604 S.W.3d 616
     (Ky. App. 2020), we observed
    that appellant’s counsel had failed to make a sincere attempt to comply with our
    rules governing submission of briefs. While we declined to dismiss the appeal,
    -13-
    strike the brief, or fine counsel, we decided to review the matter only for manifest
    injustice.
    Karsner’s brief, too, fails to comply with our rules of civil procedure.
    The statement of the case does not contain any “supportive references to the
    record[,]” nor does the brief contain “at the beginning of the argument a statement
    with reference to the record showing whether the issue was properly preserved for
    review and, if so, in what manner.” CR 76.12(4)(c)(iv), (v). Despite the specific
    requirements of our rules, Karsner failed to satisfy perhaps the two most
    substantial requirements for briefs set forth in CR 76.12(4)(c). The latter error is
    magnified by the specific assertion of both Dr. Craig and the hospital that the
    fraudulent concealment argument presented in Karsner’s brief is wholly
    unpreserved for our review.
    Before reaching the merits of the appeal, we must first decide whether
    our jurisdiction has been properly invoked and, even if so, whether the deficiencies
    of Karsner’s brief would nonetheless preclude our review. As we observed in
    Bruner, 
    544 S.W.3d at
    672:
    if a notice of appeal is tendered to a clerk within the time
    permitted by the Civil Rules, but is unaccompanied by
    the requisite filing fee, there could be two very different
    results:
    (1) As in Hurley, the clerk might violate his or her oath
    of office by accepting the notice of appeal anyway, in
    -14-
    which case the ensuing appeal will not be subject to
    automatic dismissal as untimely; or
    (2) as in Excel, the clerk might refuse to file the notice of
    appeal until the filing fee is received, in which case—
    assuming the filing fee is paid on a date outside the
    appellate window—the ensuing appeal will be subject to
    automatic dismissal as untimely.
    In this case, we believe the situation is closer to that described by the
    court in Hurley. Despite counsel’s failure to pay the required filing fee, the Hardin
    Circuit Court Clerk hand-wrote across the face of the notice of appeal that it was
    filed on May 8, 2019, the date upon which it was electronically tendered.
    Additionally, along with a notation that the filing fee was not received until July
    12, 2019, the clerk again misrepresented the truth and noted on the docket that the
    notice of appeal was filed on May 8, 2019. Because of the clerk’s actions, there is
    no basis pursuant to Hurley upon which to conclude that the appeal is subject to
    automatic dismissal.
    Next, we must decide whether Karsner’s failure to comply with the
    provisions of CR 73.02(2) merits dismissal of the appeal. We conclude that it does
    not. However, as in Clark, supra, we are persuaded that Karsner has failed to
    make a sincere attempt to comply with our rules of appellate procedure. As a
    result, we elect to consider the appeal on its merits -- but to review only for
    manifest injustice.
    -15-
    Karsner contends that the circuit court erred by concluding that her
    claims were time-barred on the basis that she failed to show the existence of any
    circumstance that would make the action timely under either the discovery rule or
    the continuous course of treatment doctrine. However, our review of the circuit
    court’s decision does not indicate that Karsner suffered a manifest injustice as a
    result of the dismissal.
    In its judgment, the circuit court carefully recounted its thorough
    analysis of the defenses asserted by Dr. Craig and the hospital. It noted that
    ordinarily a medical negligence action must be brought within one year of the date
    that the injury is, or with reasonable care, should have been discovered. KRS2
    413.140. “[T]he 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 been
    discovered.” Wiseman v. Alliant Hospitals, Inc., 
    37 S.W.3d 709
    , 712 (Ky. 2000)
    (quoting Hackworth v. Hart, 
    474 S.W.2d 377
     (Ky. 1971)).
    The circuit court concluded that the chronology of events was
    undisputed in this case. Reviewing Karsner’s deposition testimony, it observed
    that she tied her rising concerns about the adequacy of her care to Dr. Craig’s
    decision to refer her to a Louisville trauma surgeon, Dr. Roberts, during her May 3,
    2016, visit. “Particularly problematic for Karsner is her statement about her
    2
    Kentucky Revised Statutes.
    -16-
    understanding the bone wasn’t healing and her knowledge of the broken screw.”
    Karsner was aware of these things no later than May 3, 2016. Karsner certainly
    either knew or had reason to know what was causing her pain and who had caused
    it no later than her last visit with Dr. Craig in July 2016.
    Finally, the circuit court noted that where the date of the discovery of
    an injury does not pose a genuine factual dispute, summary judgment is
    appropriate. It concluded that no genuine issue of fact remained -- that Karsner
    discovered or should have discovered her injury well before her last visit with Dr.
    Craig in July 2016 -- and that Dr. Craig and the hospital were entitled to judgment
    as a matter of law.
    The court also reviewed the potential applicability of the continuing
    course of treatment doctrine. The circuit court observed that in Harrison v.
    Valentini, 
    184 S.W.3d 521
     (Ky. 2005), as modified on denial of reh’g (Mar. 23,
    2006), the Kentucky Supreme Court (in a divided opinion) adopted the continuing
    course of treatment doctrine to toll the statute of limitations in medical malpractice
    actions. Where it applies, the continuous course of treatment doctrine provides
    that “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. at
    524 (footnote omitted). The Harrison Court noted as follows:
    the trust and confidence that marks the physician-patient
    relationship puts the patient at a disadvantage to question
    -17-
    the doctor’s techniques, and gives the patient the right to
    rely upon the doctor’s professional skill without the
    necessity of interrupting a continuing course of treatment
    by instituting suit.
    Id. (citation omitted). By tolling the statute of limitations for medical malpractice
    actions, the continuous course of treatment doctrine “gives the physician a
    reasonable chance to identify and correct errors made at an earlier stage of
    treatment.” Id. at 525 (citation omitted).
    In the case before us, the circuit court declined to apply the doctrine.
    It reasoned that the purpose of the doctrine -- “to support the relationship between
    doctor and patient to address complications, which, if properly treated, may avoid a
    bad result” -- was not implicated because Karsner had filed her action more than a
    year after she last saw Dr. Craig. Furthermore, it observed that no appellate
    court in Kentucky had considered an expansion of the doctrine to encompass not
    only the original doctor’s treatment of the patient, but also his subsequent referral
    of the patient to another doctor.
    After the circuit court granted summary judgment, the Kentucky
    Supreme Court published its Opinion in Sneed v. University of Louisville Hospital,
    
    600 S.W.3d 221
     (Ky. 2020). The Sneed Court rejected the patient’s contention that
    the continuous course of treatment doctrine could be expanded to include
    subsequent treatment by another physician who worked at the same hospital
    where she received her initial care. It was not convinced that an extension of the
    -18-
    doctrine would serve to “bolster the relationship of trust and confidence” that a
    patient has with a particular treating physician. “The type of relationship between
    a patient and the Hospital, or all physicians at the Hospital, is different in kind and
    degree than the relationship between a patient and a single treating physician.”
    Sneed, 600 S.W.3d at 227. “A patient’s ‘ability to make an informed judgment as
    to the negligent treatment’ is not so impaired by her relationship with the Hospital
    itself to prevent her from discovering her injury.” Id. (citation omitted).
    Therefore, the Supreme Court rejected an extension of the doctrine.
    The evidence in this case indicates that Dr. Roberts and Dr. Craig
    were involved in entirely separate practices in different cities. Furthermore, no
    evidence was presented to show that Dr. Roberts collaborated with Dr. Craig or
    that he even discussed Karsner’s care with Dr. Craig. There is no evidence to
    indicate that Dr. Roberts did anything more than rely upon Karsner’s medical
    records for information concerning Dr. Craig’s surgery and subsequent care.
    Finally, it bears noting that Karsner’s bold suggestion that she was “a victim of an
    ongoing cover-up” is absolutely unsupported by anything appearing of record.
    Under the circumstances, we are not persuaded that manifest injustice resulted
    from the trial court’s decision not to extend the continuous course of treatment
    doctrine beyond Dr. Craig, Karsner’s original physician.
    -19-
    Finally, we address Karsner’s contention that the circuit court erred by
    failing to conclude that Dr. Craig’s decision to refer her to Dr. Roberts constituted
    fraudulent concealment of her injury (and of his malpractice) sufficient to extend
    the statute of limitations under principles of equitable estoppel. Dr. Craig and the
    hospital argue that the issue is unpreserved for review. Karsner contends that the
    issue is preserved because the circuit court merely failed to appreciate the nuances
    of her original argument concerning the accrual of her cause of action.
    The rule is firmly established that the trial court should first be given
    the opportunity to rule on questions before they are available for appellate review.
    See Curty v. Norton Healthcare, Inc., 
    561 S.W.3d 374
     (citing Elwell v. Stone, 
    799 S.W.2d 46
    , 48 (Ky. App. 1990)). This Court will entertain an argument not
    presented to the trial court only to avert a manifest injustice. 
    Id.
     This argument
    was not previously presented to the circuit court prior to its decision to render
    summary judgment. And it does not appear that our review is necessary to avert a
    manifest injustice. Therefore, we decline to address it except to note again that the
    allegation is unsupported by anything appearing of record.
    We AFFIRM the judgment of the Hardin Circuit Court.
    ALL CONCUR.
    -20-
    BRIEF FOR APPELLANT:     BRIEF FOR APPELLEE HARDIN
    MEMORIAL HOSPITAL:
    Jeffrey A. Sexton
    Louisville, Kentucky     Jennifer B. Oldham
    Elizabethtown, Kentucky
    Thomas N. Kerrick
    Shawn Rosso Alcott
    Bowling Green, Kentucky
    BRIEF FOR APPELLEE MARCIS A.
    CRAIG, M.D.:
    Craig L. Johnson
    Timothy B. George, Jr.
    Louisville, Kentucky
    -21-