Baptist Healthcare Systems, Inc. v. Miller , 2005 Ky. LEXIS 236 ( 2005 )

LAMBERT, Chief Justice.

Appellant, Baptist Healthcare, Inc., d/b/a Central Baptist Hospital appeals from the Kentucky Court of Appeals opinion affirming the judgment of the Fayette Circuit Court awarding Appellee, Golda Miller $100,100 for injuries received as a result of negligence. As we discern no abuse of trial court discretion in continuing the case to allow Ms. Miller to identify an expert, trial court error in denying Central Baptist’s motion for summary judgment, or other reversible error, we affirm the Court of Appeals and the judgment of the Fayette Circuit Court.

On July 18, 1997, Golda Miller went to Central Baptist Hospital to have her blood drawn upon her doctor’s order. The phle-botomist¹ employed by Central Baptist Hospital placed a tourniquet on Ms. Miller’s arm, and left her without supervision for approximately ten minutes. When the phlebotomist returned from answering a telephone call in another room, Ms. Miller’s arm was swollen and had changed colors. Ms. Miller, who was eighty years old, experienced medical complications with her arm and sought treatment. After medical consultation, three physicians concluded that Ms. Miller was experiencing nerve problems with her right arm and specifically related her condition to the tourniquet incident of July 18,1997.

Ms. Miller brought a negligence action against Central Baptist, and trial was initially scheduled for April 30, 2001. Before the ease was tried, on April 9, 2001, Central Baptist moved for summary judgment on the grounds that Ms. Miller’s claim was improperly classified as negligence rather than medical malpractice. Central Baptist claimed that a medial negligence case required an expert phlebotomist to testify as to the standard of care, and since Ms. Miller did not provide notice of an expert phlebotomist she could not establish evidence of the standard of care. On April 20, 2001, the Fayette Circuit Court held a hearing on the matter. During the hearing, counsel for Ms. Miller argued that the case was one of ordinary negligence rather than medical negligence since phlebotom-ists are not licensed or regulated in Kentucky. In support of this point, Ms. Miller added that Central Baptist’s phlebotomist failed to meet her employer’s standard of care as outlined in its employee training manual and videos. The trial court determined that due to the widespread use of phlebotomy, a specific medical standard of care was mandatory and necessitated expert testimony to establish whether that standard of care was met. The trial court thereby denied Central Baptist’s motion for summary judgment and allowed a 30 day continuance for Ms. Miller to identify an expert under CR 26.

A two day jury trial began on September 26. Dr. Michael Balm testified that Ms. Miller’s nerve injury was specifically related to the tourniquet incident of July 18, 1997 at Central Baptist Hospital. Ms. Miller produced expert witness Denise Dunn, a phlebotomist with the University of Kentucky and former employee of Central Baptist. Ms. Dunn testified that she assisted in the training of new phlebotom-ists at the University of Kentucky. She testified that a phlebotomist should never leave a patient alone, and that a tourniquet should be placed on a patient’s arm for one to three minutes. She testified that if a tourniquet is left on a patient’s arm for more than three minutes, the blood may become hemolyzed,² a process whereby the “cells are crushed.” She stated that He-molysis is the result of an improperly drawn blood sample and this is indicated by elevated levels of potassium, iron, cholesterol, and bilirubin. This portion of Ms. Dunn’s testimony was based upon a medical publication published in a seminar book by the National Committee on Clinical Laboratory Standards provided by her employer. She stated that she had read this document but did not understand it.

Central Baptist produced the testimony of Ms. Cynthia Applegate an employee and former director of its laboratory to interpret Ms. Miller’s blood test results. At this point, Ms. Miller’s counsel objected to the testimony arguing that any testimony concerning the lab report should not be admissible because it would constitute expert testimony and Ms. Applegate had not been disclosed as an expert witness until a day before trial. The trial court ruled that Ms. Applegate could read from the report and testify that there were no indications of any problems with the blood drawn, but prohibited her from interpreting the lab report.

At the conclusion of the trial, the jury returned a verdict in favor of Ms. Miller and awarded damages of $154,000. But the jury also found that Ms. Miller was 35 percent comparatively negligent, and reduced the verdict from $154,000 to $100,100. In its motion for directed verdict, Central Baptist sought to limit Ms. Miller’s recovery of medical expenses only to those that are actually paid or payable, but to exclude contractual allowances imposed by payors. Central Baptist reasoned that it should not be held liable for medical charges that were neither paid nor able to be collected. The trial court delayed ruling on the motion until a verdict was rendered. The trial court overruled the motion to limit damages on the grounds that considering the equities and Central Baptist’s negligence, the windfall, if any, should go to the injured party, Ms. Miller. The Court of Appeals affirmed, and this Court granted discretionary review.

I.

Central Baptist contends that it was entitled to (CR 56) summary judgment or alternatively that a continuance should not have been granted to Ms. Miller. Central Baptist argues that at the time it moved for summary judgment, Ms. Miller had not named an expert to testify as to the standard of care of a phlebotomist. During the hearing, the issue was whether expert testimony was required in a phlebotomist negligence case, or whether summary judgment should be granted because the plaintiff failed to identify an expert witness. The following colloquy occurred during the hearing:

Counsel for Appellee, Mr. Peters: ... I know I have a nurse available. And I think she’s qualified.

Court: I don’t know who is qualified and who is not to tell you the truth because any medical person can and does draw blood. Nurses do it, doctors do it, quote phlebotomist, there are some people on hospital staff that do nothing but draw blood, but as you say there is no certification or licensure for that that anybody’s given me any evidence for. It’s internal training. I don’t think I really realized that was such an unregulated field. People have been sticking needles in my arm since I don’t know...

Mr. Peters: Some states require, but Kentucky doesn’t.

Court: Which I think causes a major problem in this trial. This is clearly a medical procedure. It clearly has medical consequences. He has two experts that are going to testify that the cause of her problems was that drawing of blood, what we don’t have is anybody, at least identified at this point, is anybody with the experience and skill to testify that it was done negligently ... what the proper standard of care would be for drawing blood and I cannot leave that to the imagination of the jury. This is not something in my opinion that the common sense of a lay person can answer. Mr. Peters: Judge in all honesty, with people out of town it is going to be difficult .to get it done next week.

Court: I’m going to give Mr. Peters 30 days to get his witnesses identified that will prove his case in chief. And if they are not identified in reports to you within 30 days you renew your motion for summary on this issue... full [CR] 26 disclosures with that. And that means of course I’m going to have to give you a continuance, but that means I’m going to dismiss this case before I continue it again.

The trial court, Judge Noble, aptly articulated that the question was whether the unlicensed and unregulated medical field of phlebotomy required expert testimony to establish the standard of care. Notably there is little guidance on this specific issue in Kentucky. However, we have stated that “[t]he general rule is that expert testimony is required in a malpractice case to show that the defendant failed to conform to the required standard ...”³

In the Kentucky Rules of Evidence, KRE 702 states that expert testimony is appropriate “[i]f scientific, technical, . or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue.... ” If the subject matter of an issue in litigation is not common knowledge, then expert testimony is proper.⁴ Expert witnesses give the jury the ability to evaluate the conduct of the party charged with malpractice in the context of the discipline.⁵ The trial judge has wide discretion to admit or exclude evidence including that of expert witnesses.⁶ Although it is not uncommon to have blood drawn during a medical examination, most persons would lack knowledge of the technical requirements of the process. Simply because having blood drawn is not uncommon or because such activity is unlicensed and unregulated does not mean that a jury would necessarily understand the specifics of the activity or the standard of care upon medical personnel, including phlebotom-ists, who draw blood. Other jurisdictions utilize expert testimony to aid the trier of fact in determining the standard of care in cases of harm caused by an improper blood draw.⁷ As the standard of care is not within the scope of common experience of jurors, requiring expert testimony as to the standard of care of a phlebotomist was a proper exercise of trial court discretion.⁸

Central Baptist further contends that it was entitled to summary judgment because at the time the motion was heard by the trial court, Ms. Miller was without an expert to establish the phlebotomy standard of care. Rarely do we encounter claims of entitlement to summary judgment by one who lost at trial. Normally, the claim is presented as trial court error in failing to grant a directed verdict at the close of the evidence. Nevertheless, Central Baptist predicates its argument on the language of CR 56.03 that summary judgment “shall be rendered forthwith if 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.” Upon this basis, it insists that the trial court was obligated to grant summary judgment when the state of the record on the date of the hearing revealed that Ms. Miller could not prove her case.

At the outset, we observe that while the trial court’s ruling with regard to the necessity of an expert witness was within the court’s sound discretion, see supra, this issue was not so clear-cut that reasonable persons could not have differed. This Court has rendered numerous decisions in the medical negligence context in which expert witnesses were not required on the view that a lay juror was competent to analyze the conduct and render an appropriate verdict without the assistance of an expert witness.⁹ As phlebotomy is an unlicensed field of practice and as numerous other medical providers routinely perform phlebotomy services, from the evidence is was not unreasonable for Ms. Miller to contend that no expert witness was necessary to determine that her injuries were caused by leaving the tourniquet her patient’s arm too long or that the principle of res ipsa loquitur applied to the case. However, the trial judge, acting well within her discretion, saw it otherwise. In view of the foregoing, the trial court properly exercised its discretion to announce a ruling on the necessity of an expert witness and to grant Ms. Miller a reasonable time in which to procure an expert. Under these circumstances, not only did the trial court not err in failing to grant summary judgment, to have done so would have been extraordinary.

It is inappropriate to use a CR 56 summary judgment to resolve what is essentially a procedural dispute as to the need for an expert, the disclosure of the expert’s identity, and the substance of the testimony.¹⁰ In such disputes, it is within the trial court’s discretion to impose sanctions for failure to comply rather than to grant a summary judgment as a procedural sanction except in rare cases.¹¹ In Ward v. Housman, the Court of Appeals held that it was improper to grant summary judgment as a sanctioning tool where plaintiffs’ counsel failed to comply with the court’s discovery schedule by not disclosing in a timely manner an indispensable expert witness.¹² In Housman, the trial court issued an order excluding any expert testimony of witnesses not known after a certain date. After that date, however, plaintiff moved for reconsideration to allow their expert to testify because they would not be allowed to maintain their cause of action beyond the directed verdict stage of the litigation.¹³ Likewise, in M.P.S. v. Cabinet for Human Res., the Court of Appeals held that it was not an abuse of discretion to permit an expert to testify where disclosure of that expert to opposing counsel is disputed.¹⁴

It was not mandatory for the trial court to grant summary judgment, contrary to Central Baptist’s contention. Ms. Miller had witnesses prepared to testify as to the standard of care of people who draw blood, although she did not have a named phlebotomy expert. Central Baptist’s argument is unpersuasive as the summary judgment hearing established that expert testimony on the phlebotomy standard of care would be necessary. There was no abuse discretion or error of law.

II.

Central Baptist’s second argument is that the trial court should have granted a directed verdict on the issue of Ms. Miller’s medical expenses. Central Baptist seeks to limit Ms. Miller’s recovery to the amount actually paid or the amount actually collectable as a matter of law. It asserts that this is not a collateral source issue; rather it claims that the amount of alleged damages for which there is no obligation to pay is not a valid item to be submitted to the jury and awarded as damages. The jury awarded Ms. Miller $34,000 for medical expenses reduced to $22,100 by a 35 percent fault apportionment. She had sought $40,922.08 in medical expenses. The sum of $31,840 was billed by the doctor, but he received only $3,356.38 from Medicare. Central Baptist claims that Ms. Miller was only responsible for paying $3,356.38 (the amount actually paid by Medicare), and the remaining $28,483.80 was classified as a Medicare adjustment or Medicare write off. Central Baptist claims that the Medicare adjustment was Ms. Miller’s windfall.

It is improper to reduce a plaintiffs damages by payments for medical treatment under a health insurance policy if the premiums were paid by the plaintiff or a third party other than the tortfeasor.¹⁵ The collateral source rule, as this rule is commonly known, allows the plaintiff to (1) seek recovery for the reasonable value of medical services for an injury, and (2) seek recovery for the reasonable value of medical services without consideration of insurance payments made to the injured party.¹⁶ The collateral source rule has long been followed in Kentucky.¹⁷ Medicare benefits are governed by the collateral source rule and are treated the same as other types of medical insurance.¹⁸

In O’Bryan v. Hedgespeth, we stated that “[c]ollateral source benefits may relate to the plaintiffs need to recover damages from the wrongdoer, but they have no bearing on the plaintiffs right to recover such damages.”¹⁹ We held in O’Bryan that a liability insurance company should not receive a windfall for benefits the plaintiff is entitled to. We reasoned that because the insured procured a policy and paid the premiums that the benefits, including a windfall, inured to them.²⁰ The recent Court of Appeals decision in Schwartz v. Hasty reiterates the reasoning in favor of providing an injured party with any windfall associated with collateral source payments.²¹

First, the wrongdoer should not receive a benefit by being relieved of payment for damages because the injured party had the foresight to obtain insurance. Second, as between the injured party and the tortfeasor, any so-called windfall by allowing a double recovery should accrue to the less culpable injured party rather than relieving the tortfeasor of full responsibility for his wrongdoing. Third, unless the tortfeasor is required to pay the full extent of the damages caused, the deterrent purposes of tort liability will be undermined.²²

Along with the considerations underlying granting any windfall to the injured party is the fact that Ms. Miller paid her premiums and deserves all appropriate benefits. Moreover, it is absurd to suggest that the tortfeasor should receive a benefit from a contractual arrangement between Medicare and the health care provider. Simply because Medicare contracted with Ms. Miller’s physician to provide care at a rate below usual fees does not relieve a tortfea-sor from negligence or the duty to pay the reasonable value of Ms. Miller’s medical expenses. Therefore, we hold that evidence of collateral source payments or contractual allowances was properly withheld from the jury and her award of medical expenses was proper.

III.

Central Baptist’s final argument is that the trial court improperly limited its expert’s testimony regarding the lab report but did not so limit Ms. Miller’s expert on the same issue. Central Baptist claims that Denise Dunn’s testimony that Ms. Miller’s blood may have become hemolyzed was expert opinion that she was unqualified to make. Notably, the lab report in question was introduced by Central Baptist’s expert Cynthia Apple-gate. The trial court limited her testimony on the topic to a statement that the lab report did not show any irregularities because Ms. Applegate was not identified as an expert qualified to interpret the lab report.²³ The lab report was stipulated into evidence as being one of Ms. Miller’s medical records. Ms. Dunn and Ms. Ap-plegate were both permitted to read from the record but not interpret its results. Likewise, counsel for both Central Baptist and Ms. Miller were permitted to read from the lab reports during their closing arguments. There was no unimpeachable expert testimony as Central Baptist contends because the testimony was limited to reading from the lab reports. Moreover, questions concerning the scope of evidence are left to the discretion of the trial court to determine whether to admit and exclude evidence.²⁴ An abuse of discretion occurs when a “trial judge’s decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”²⁵ The trial court was in the best position to determine whether to limit the scope of Ms. Apple-gate’s testimony and discovering no apparent abuse of discretion, we defer to the trial court’s judgment.

Accordingly, we affirm.

GRAVES, JOHNSTONE, ROACH, SCOTT, and WINTERSHEIMER, JJ„ concur. COOPER, J., files a separate opinion dissenting in part.

1 . A phlebotomist is a person trained in phlebotomy, which is defined as follows: "Incision into or needle puncture of a vein for the purpose of drawing blood.” This process is also known as venipuncture: "The puncture of a vein, usually to withdraw blood or inject a solution.” Stedman's Medical Dictionary (27th ed.2000).

2 . "To produce hemolysis or liberation of the hemoglobin from red blood cells.” Hemoly-sis is defined as "[a]lteration, dissolution, or destruction or of red blood cells in such a manner that hemoglobin is liberated into the medium in which the cells are suspended, e.g., by specific complement fixing antibodies, toxins, various chemical agents, tonicity, alteration of temperature with subsequent release of hemoglobin.” Stedman’s Medical Dictionary (27th ed.2000).

3 . Jarboe v. Harting, 397 S.W.2d 775, 778 (Ky.1965)

4 . Greer’s Adm’r v. Harrell’s Adm’r, 306 Ky. 209, 213, 206 S.W.2d 943, 946 (1947).

5 . Jarboe, 397 S.W.2d at 778; See, e.g., 7 Wig-more, Evidence, § 1917 (3d ed.1940).

6 . Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 2903, 41 L.Ed.2d 590, 615 (1974); Keene v. Commonwealth, 516 S.W.2d 852, 855 (Ky.1974).

7 . Pipers v. Rosenow, 39 A.D.2d 240, 243, 333 N.Y.S.2d 480 (N.Y.App.Div.1972) (holding that permitting jury to find malpractice from blood draw without expert testimony by applying the doctrine of res ipsa loquitur instead of eliciting expert testimony as to the standard of care to be reversible error); Mengelson v. Ingalls Health Ventures, 323 Ill.App.3d 69, 256 Ill.Dec. 38, 751 N.E.2d 91, 96 (2001) (noting that it is essential that plaintiff present expert testimony establishing that person conducting the blood draw was negligent and the negligence caused the injury); Arbogast v. Mid-Ohio Valley Med. Corp., 214 W.Va. 356, 589 S.E.2d 498, 502-03 (2003) (holding expert necessary in case of negligent blood draw causing a hematoma because a jury cannot consider whether defendant acted negligently until standard against which the defendant’s conduct is to be measured).

8 . Keene, 516 S.W.2d at 855.

9 . Kentucky recognizes an exception to the general requirement of expert testimony to prove causation where the negligence is so apparent that a layperson would have no difficulty recognizing it. See Perkins v. Hausladen, 828 S.W.2d 652, 655 (Ky.1992) (discussing two following exceptions to general rule requiring expert testimony in medical malpractice cases: (1) where "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", and (2) when "medical experts may provide a sufficient foundation for res ipsa loquitur on more complex matters.”); Jarboe, 397 S.W.2d at 778 (holding that where the common knowledge or experience of laymen jurors is extensive enough to recognize or infer medical negligence from the circumstances then an expert witness is not necessary); Harmon v. Rust, 420 S.W.2d 563, 564 (Ky.1967); Maggard v. McKelvey, 627 S.W.2d 44, 49 (Ky.App.1981); Butts v. Watts, 290 S.W.2d 777, 778 (Ky.1956).

10 . Poe v. Rice, 706 S.W.2d 5 (Ky.App.1986) (holding summary judgment inappropriate to resolve an "essentially procedural conflict”).

11 . Cf. Greathouse v. Am. Nat'l Bank & Trust Co., 796 S.W.2d 868 (Ky.App.1990).

12 . 809 S.W.2d 717, 719 (Ky.App.1991).

13 . Id. at 718-19.

14 . 979 S.W.2d 114, 118 (1998).

15 . O'Bryan v. Hedgespeth, 892 S.W.2d 571, 576 (Ky.1995) (holding statute allowing evidence of collateral source payments unconstitutional); 22 AM Jur.2d Damages 409 (2004).

16 . 22 AM Jur.2d Damages 409 (2004). REST 2d TORTS § 920A (1979) (“Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor's liability, although they cover all or a part of the harm for which the tortfeasor is liable_b. Benefits from collateral sources. Payments made or benefits conferred by other sources are known as collateral-source benefits. They do not have the effect of reducing the recovery against the defendant. The injured party’s net loss may have been reduced correspondingly, and to the extent that the defendant is required to pay the total amount there may be a double compensation for a part of the plaintiff’s injury. But it is the position of the law that a benefit that is directed to the injured party should not be shifted so as to become a windfall for the tortfeasor. If the plaintiff was himself responsible for the benefit, as by maintaining his own insurance or by making advantageous employment arrangements, the law allows him to keep it for himself. If the benefit was a gift to the plaintiff from a third party or established for him by law, he should not be deprived of the advantage that it confers. The law does not differentiate between the nature of the benefits, so long as they did not come from the defendant or a person acting for him. One way of stating this conclusion is to say that it is the tortfea-sor’s responsibility to compensate for all harm that he causes, not confined to the net loss that the injured party receives... Perhaps there is an element of punishment of the wrongdoer involved. (See § 901). Perhaps also this is regarded as a means of helping to make the compensation more nearly compensatory to the injured party. (Cf § 914A, Comment fc).”)

17 . See Louisville & Nashville R.R. Co. v. Carothers, 65 S.W. 833, 834 (Ky.1901); McFarland v. Bruening, 299 Ky. 267, 185 S.W.2d 247, 249 (1945); Barr v. Searcy, 280 Ky. 535, 133 S.W.2d 714, 715 (1939).

18 . 22 AM Jur.2d Damages 409 (2004) citing Our Lady of Mercy Hospital v. McIntosh, 461 S.W.2d 377 (Ky.1970).

19 . 892 S.W.2d at 576.

20 . Id.

21 . Schwartz v. Hasty, 175 S.W.3d 621, 626 (Ky.App.2005). (Citations omitted).

22 . Id.

23 . CR 26.02.

24 . Keene v. Commonwealth, 516 S.W.2d at 855.

25 . Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000).