Casey Kuffner, Administrator of the Estate of Lonnie Baker v. Saint Joseph Health System, Inc. D/B/A Saint Joseph East

RENDERED: FEBRUARY 11, 2022, 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0168-MR
CASEY KUFFNER,
ADMINISTRATOR OF THE ESTATE
OF LONNIE BAKER; C.R.B., A
MINOR BY AND THROUGH HER
CO-GUARDIANS, RACHEL
KUFFNER AND CASEY KUFFNER;
AND CASEY KUFFNER,
ADMINISTRATOR OF THE ESTATE
OF JAMIE NICOLE BAKER APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 18-CI-02286
SAINT JOSEPH HEALTH SYSTEM,
INC. D/B/A SAINT JOSEPH EAST
AND KENTUCKY ONE HEALTH,
INC. APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: GOODWINE, K. THOMPSON, AND L. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Casey Kuffner, Administrator of the Estate of Lonnie
Baker; C.R.B., a minor by and though her co-guardians, Rachel Kuffner and Casey
Kuffner; and Casey Kuffner, Administrator of the Estate of Jamie Nicole Baker
(collectively the Estate), appeal from the Fayette Circuit Court’s grant of summary
judgment to Saint Joseph Health System, Inc. D/B/A Saint Joseph East and
Kentucky One Health, Inc. (collectively St. Joseph or the hospital), resulting in its
dismissal.
This is a medical malpractice case in which the physician primarily
responsible for Lonnie Baker’s care, Dr. Lynda Newman, has already settled with
the Estate. Additionally, all other parties except for St. Joseph were previously
dismissed. As the issue before us is the appropriateness of the circuit court
granting summary judgment to St. Joseph, our focus will be on the events which
are relevant to determining whether the hospital could be liable.
On June 23, 2017, Baker arrived at the St. Joseph emergency room
(ER), at 6:31 p.m., complaining of chest pain and nausea. He was treated in the
ER by Dr. Newman. At 10:15 p.m., Dr. Newman ordered chest and abdominal
computed tomography (CT) scans without contrast “stat” and they were taken soon
thereafter by radiologist technician Lindsey Barnes. At around 11:00 p.m., the
radiologist, Dr. Raymonda Stevens, interpreted the CT scans and found them
largely unremarkable. Baker was found unresponsive at 1:14 a.m. the next day, a
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code was called on him and after extensive resuscitation efforts, Baker was
pronounced dead at 2:42 a.m. A later autopsy concluded that his death was caused
by an ascending aortic dissection with Marfan syndrome, a possible contributing
underlying condition. The Estate filed suit for negligence in causing his death
against Dr. Newman and others, including St. Joseph.
According to Dr. Newman’s deposition, she decided to order the CT
scan of Baker’s chest because she suspected he had possible Marfan syndrome
based on Baker’s stature of six feet, nine inches, and knew that Marfan syndrome
is associated with an elevated risk of dissection of the heart. Dr. Newman
explained she ordered the CT scans without contrast because she was worried
about the adverse effect the contrast dye would have on Baker’s kidneys as he had
an elevated creatinine level in his blood.
According to Dr. Newman’s deposition testimony, she noted in the
electronic order for the CT of Baker’s chest that her reason for ordering the CT
was “dissection,” explaining this is synonymous in conjunction with a chest CT
with “aortic dissection.” Dr. Newman explained that she typed the word
“dissection” in the electronic form order.
However, all the records associated with Baker’s chart (whether
generated by the ER, radiology, or the radiologist), failed to indicate this CT scan
was for dissection. Instead, the orders indicated chest pain, or chest pain, nausea,
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and abdominal pain. When shown the order form in Baker’s record which was
apparently prepared by Dr. Newman, Dr. Newman testified that the order was not
as she had prepared it, as it indicated the CT was for “cp” chest pain, which is not
what she typed.
Dr. Newman testified there were a variety of ways she could get a
report from radiology after the CT scans were taken and interpreted by the
radiologist but noted she would have been called on the phone by the radiologist if
it was urgent. Dr. Newman recalled seeing that evening, perhaps on the
radiologist’s initial report on the PAX machine, that the radiologist could not
evaluate for dissection, but that the radiologist did not provide an accompanying
reason why such an evaluation could not be made.
Dr. Newman testified that after she received this information, she did
not order a chest CT with contrast because “number one, the creatinine was too
high, and number two, my suspicion [of a dissection] was too low.” Dr. Newman
explained that her only suspicion for Baker having a dissection with his symptoms
was his stature, and once she knew the radiologist could not look for dissection,
she could have ordered a CT with contrast if she thought it was indicated.
Deposition testimony by the radiology technician, Barnes, who took
Baker’s CT, was that the order she received on her screen in radiology, which is an
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order that only goes to radiology, gave “cp” as the reason for the exam and
indicated that Baker “started having chest pains now [it’s] in the belly.”
Barnes testified that according to the history she took from Baker, the
reason for the CT was “general chest and abdominal pain with nausea and
vomiting started today.” She testified that she took the CTs ordered and then
electronically sent those images to radiologist Dr. Stevens.
Barnes testified she did not recall seeing anything indicating Dr.
Newman wanted Baker evaluated for aortic dissection and she had no idea as to
why she would not have gotten that information had Dr. Newman typed such a
request into the ER system. Barnes testified that the proper test for dissection is a
CT with contrast.
Dr. Kimberly Wells, the ER physician who was on duty with Dr.
Newman that night, testified in her deposition that a radiology tech could change
the reason given for the exam on the ordering paperwork, explaining, “I just know
that in my own personal experience, sometimes the reason for the exam or the
indication that I put in doesn’t make it on the final read.”
Dr. Stevens, the radiologist who evaluated Baker’s CT scans, testified
she did not recall seeing a request to evaluate Baker for an aortic dissection. Dr.
Stevens explained that if she had been asked to look for a dissection she would
have noted that in her report instead of chest pain, and she would have called Dr.
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Newman and discussed with her that a CT with contrast had to be ordered. Dr.
Stevens testified that she made no statement indicating that radiology could not
assess for dissection, to be transmitted by the PAX machine or otherwise.
St. Joseph previously requested in its interrogatories to the Estate that
the Estate disclose its experts and their anticipated testimony. The Estate identified
three experts, Dr. Gregory Postel (a radiologist), Dr. Luca Vricella (a cardiac
surgeon with a practice focusing on young adults with connective tissue disorders
and aortic problems such as are experienced by those with Marfan syndrome), and
Dr. Emile Bacha (a cardiac surgeon), via Kentucky Rules of Civil Procedure (CR)
26.02 disclosures. In an affidavit by the Estate’s attorney, he affirmed that he
reviewed the disclosures with these witnesses and they agreed with the content of
the disclosures. Each of these expert witnesses were also deposed.
The disclosure for Dr. Postel states in relevant part:
Dr. Newman’s request that the radiologist check for
dissection, if that happened, is not found anywhere in the
medical records. Under appropriate record keeping, this
request should have been a matter of record. Even if this
request was dropped or changed in radiology, as Dr.
Wells testified may happen, there should have been some
record of this. If the alleged request was dropped or
changed in radiology, this would be below the standard
of care.
During Dr. Postel’s deposition testimony, he stated that he did not feel
it was necessary to make any changes to his disclosure. He also stated that he
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would not be offering any standard of care criticisms against the hospital’s nurses
or the hospital itself.
When Dr. Postel was asked about his disclosure statement that there
would be negligence if Dr. Newman’s request that the radiologist examine the CT
for dissection was not passed on to the radiologist, Dr. Postel testified there was no
record evidence to support Dr. Newman’s claim of including that request and
noted, “I have no evidence that such a record was created around that specific
topic.” Dr. Postel also indicated that if Dr. Newman created a record, it should be
recorded unless “if somehow the electronic record system had malfunctioned” as
otherwise electronic records do not disappear.
Dr. Postel clarified that if such a record, requesting an evaluation for
dissection, had been created by Dr. Newman, “the radiologist would have and
should have modified the order and done the examination with contrast.” He
further explained:
[it would have been] the responsibility at that point of the
radiologist to pick up the phone and say, hey, Dr.
Newman, since you’re looking for an aortic dissection, a
CT scan without contrast is not a good way to look for
that. I think we should give your patient contrast. And
99 times out of 100 the ordering doctor agrees, and they
modify it and they go ahead and they do the exam that
way.
The disclosure for Dr. Vricella states: “Assuming Dr. Newman did
order the radiologist to check for dissection, this order should have been carried
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out by radiology and should have been communicated to Dr. Stevens. At least Dr.
Stevens could have called Dr. Newman to request a CTA or CT with contrast.”
Dr. Vricella affirmed his CR 26.02 disclosure during his deposition.
Dr. Vricella denied that he would offer any criticisms at trial against the nurses or
the hospital itself.
Dr. Vricella opined that a CT with contrast was necessary here, and if
the dissection was properly diagnosed, surgery in a case like Baker given his age
and condition would have a 10-15% mortality rate. Dr. Vricella further opined that
given the elevated level of creatinine, Baker should have been hydrated, and given
the CT with contrast to rule out the one condition that could kill him; his kidneys
would get better after surgery more likely than not “[a]nd even if he ends up on
dialysis, his outcome is pretty good. But if you don’t do it, you know what
happens because you see it in this case. You have 100% mortality.”
Dr. Vricella opined that even with transferring Baker to a different
hospital, he could have been on the operating table within one hour of the
dissection diagnosis and “within 20 minutes [of beginning the operation] you
should be on cardiac only bypass which means at that point you have control of the
patient. If he ruptures at that point or has a contained rupture, you can manage.”
Dr. Vricella further opined that had someone of Baker’s age and condition received
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the surgery before a rupture, he would have an 80% chance of being alive three to
five years later if he survived the operation.
The disclosure for Dr. Bacha states:
If Dr. Newman . . . did order the radiologist to try to
assess for dissection, this should have been done, even
though difficult to be done with no contrast. At least the
radiologist could have called Dr. Newman and explained
that contrast was necessary. . . . The failure, if there was
one, to communicate the request is below the standard of
care for a radiology department.
During Dr. Bacha’s deposition, he affirmed his CR 26.02 disclosure.
Dr. Bacha also denied that he would be offering any criticism at trial against the
hospital.
When asked more about his disclosure statements relating to Dr.
Newman which noted that she specified the CT was to check for dissection, Dr.
Bacha agreed that he discounted Dr. Newman’s testimony on this point. Dr. Bacha
clarified that the statement in his disclosure that if Dr. Newman indeed asked the
radiologist to look for dissection and that was not communicated, it was below the
standard of care, meant “that Dr. Newman should have specified what she was
looking for” and if she did so, Dr. Bacha would be critical of the radiologist for
failing to look for dissection.
Dr. Bacha testified that had the correct CT with contrast test been
done on Baker in a timely fashion, “he would have been diagnosed with an aortic
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dissection at the time when he was hemodynamically stable . . . would have been
transferred, thereto, to the appropriate facility to be treated . . . [and] would have
had an excellent result[.]” Dr. Bacha also testified that operating on Baker before
rupture would be urgent but have good survivability.
St. Joseph filed a motion for summary judgment, arguing that the
allegation “that the hospital potentially failed to document or communicate a CT
scan order” was insufficient to establish causation against the hospital because
none of the Estate’s experts attributed Baker’s injuries or death to any alleged
breach of the standard of care by the hospital. St. Joseph further argued that even
if Dr. Newman included the word “dissection” in the CT order and then the
hospital negligently failed to communicate this to the reviewing radiologist, it did
not matter because Dr. Newman further testified that she received a report from Dr.
Stevens advising that Dr. Stevens could not evaluate Baker’s chest CT for
dissection; Dr. Newman knew she had the option to order a CT with contrast but
chose not to order it because Baker’s creatinine level was elevated and her
suspicion for aortic dissection was low. St. Joseph relied upon deposition
testimony by the Estate’s expert witnesses that they had no criticism of the hospital
and did not testify that any alleged or “contingent” breach of the standard of care
by the hospital resulted in harm to Baker, as precluding liability by the hospital.
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St. Joseph argued summary judgment should be granted as there were no
remaining issues of material fact to submit to a jury.
In responding to St. Joseph’s motion for summary judgment, the
Estate explained its argument as follows:
It is without dispute that Dr. Newman testified she
ordered the radiologist to assess for dissection and Dr.
Stevens testified she never received the order.
There is a clear inference in this case the hospital
radiology department failed to carry out a physician’s
order. Perhaps the computer system from ER to
radiology to Dr. Stevens was defective and/or not
properly programmed. Perhaps Ms. Barnes saw
“dissection,” but thinking it could not be carried out
without the use of contrast, changed the order.
In support of this later supposition, the Estate pointed to deposition testimony by
Dr. Wells that a radiology tech could change the reason given for the exam,
attributing such an action to the hospital. The Estate then opined, “[t]he radiology
department’s failure to carry out Dr. Newman’s order was clearly a substantial
factor in [Baker’s] death.”
The Estate interpreted its expert witnesses’ CR 26.02 disclosures as
collectively being that if Dr. Newman requested a CT to look for dissection and
this request was never sent by St. Joseph’s radiology department to Dr. Stevens,
this would be negligence by the hospital. The Estate explained that while St.
Joseph asked if the hospital was negligent, and the experts opined that it was not,
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the Estate argued that St. Joseph avoided asking if the hospital was negligent if Dr.
Newman’s request to look for dissection was not communicated to Dr. Stevens,
and St. Joseph’s failure to ask such a question in its examination of these experts
means its CR 26.02 disclosures are controlling as to the experts’ opinions of this
matter. The Estate explained that “[c]ounsel cannot refuse to ask the correct
questions and then argue the expert had no opinion.” The Estate further explained
that the disclosures were properly part of the record that could be considered in
resolving the summary judgment motion as they were provided as part of answers
to interrogatories, with counsel’s affidavit indicating the experts approved these
disclosures before they were filed.
During argument, the circuit court heard argument as to whether the
CR 26.02 disclosures could properly be considered in deciding whether summary
judgment was proper. St. Joseph argued the disclosures were no longer relevant
after the experts were deposed and argued the experts’ deposition testimony was
inconsistent with the disclosures so far as the experts denied the hospital was
negligent, and should therefore be rejected, relying on an unpublished decision
which commented:
If a deposition is more reliable than an affidavit, certainly
it is far more reliable that an unsworn medical report.
Consequently, an earlier unsworn medical report that
contradicts later deposition testimony cannot be
submitted for the purpose of attempting to create a
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genuine issue of material fact to defeat a properly
supported summary judgment motion.
Cooper v. Nair, No. 2019-CA-000094-MR, 2020 WL 5268065, at *4 (Ky.App.
Sep. 4, 2020) (unpublished). The Estate argued that Cooper did not support
rejecting the expert witnesses’ disclosures, which were not inconsistent with their
deposition testimony, where the right questions were not asked as to whether the
hospital was negligent if Dr. Newman was believed that she requested the
radiologist check for “dissection” and the hospital prevented this communication
from taking place. The circuit court for purposes of its ruling assumed that it could
properly consider the contents of the disclosures.
In argument the question came down to whether, assuming the facts
most favorable to the Estate that Dr. Newman in fact communicated her desire for
the radiologist to check for dissection and the hospital was negligent in not seeing
that done (either through the radiology technician changing the order, or some kind
of computer glitch preventing the order from being properly transmitted), whether
causation for Baker’s death could be attributed to this negligence.
The Estate argued that causation was established as if Dr. Stevens had
seen Dr. Newman’s note to check for dissection, Dr. Stevens would have called Dr.
Newman to discuss the correct test and relative risks to the kidneys compared to
the risk of not doing anything, which would have caused Dr. Newman to change
her mind and order the correct test, thus ensuring a correct diagnosis and
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appropriate, timely surgical repair. St. Joseph argued that Dr. Newman’s mind
would not have been changed by a phone call because regardless of any potential
negligence by the hospital in failing to communicate Dr. Newman’s note about
dissection, Dr. Newman did receive word that dissection could not be evaluated
through the CT she ordered, she believed the risk of dissection to be low, and she
chose not to order the correct test, despite being given an opportunity to do so,
meaning that her actions alone caused Baker’s death.
In evaluating these arguments, the circuit court opined from the bench
that it had to consider all of Dr. Newman’s deposition testimony and could not
piecemeal it in a way to be favorable to the Estate. The circuit court then opined
that based upon Dr. Newman’s failure to order the correct test once she knew
dissection could not be screened for by a CT without contrast, the Estate failed to
establish causation and, therefore, there was no breach of the standard of care. The
particular reasons behind the circuit court granting St. Joseph’s motion for
summary judgment were not provided in the written order.
“[T]he granting of a summary judgment is a drastic remedy[.]”
Conley v. Hall, 395 S.W.2d 575, 582 (Ky. 1965). Pursuant to CR 56.03, summary
judgment shall be rendered “if the pleadings, depositions, answers to
interrogatories, stipulations, and admissions on file, together with the affidavits, if
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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.”
“The standard of review on appeal of a summary judgment is whether
the trial court correctly found that there were no genuine issues 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, 781 (Ky.App. 1996). Summary judgment “should only
be used ‘to terminate litigation when, as a matter of law, it appears that it would be
impossible for the respondent to produce evidence at the trial warranting a
judgment in his favor and against the movant.’” Steelvest, Inc. v. Scansteel Service
Center, Inc., 807 S.W.2d 476, 483 (Ky. 1991) (quoting Paintsville Hospital Co. v.
Rose, 683 S.W.2d 255, 256 (Ky. 1985)). Summary judgment should not be
granted “unless the right to summary judgment is shown with such clarity that
there is no room left for controversy.” Commonwealth v. Whitworth, 74 S.W.3d
695, 698 (Ky. 2002).
In reviewing the grant of summary judgment, courts should “resolv[e]
all favorable inferences which could reasonably be drawn from the evidence, in
favor of the appellant.” Hammond v. Heritage Communications, Inc., 756 S.W.2d
152, 154 (Ky.App. 1988).
Initially, we consider whether the CR 26.02 expert disclosures could
properly be considered to establish an issue of material fact. The Estate is correct
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that such disclosures can properly be considered on summary judgment when these
disclosures are made pursuant to responses to interrogatories under CR
26.02(4)(a)(i), as CR 56.03 specifically allows consideration of “answers to
interrogatories” to resolve whether there is a “genuine issue as to any material
fact[.]”
While the disclosures themselves would not be admissible at trial as
evidence, when determining whether summary judgment has been properly granted
we are not concerned with either “the competency of evidence” or “the sufficiency
of the evidence.” Conley, 395 S.W.2d at 578. In reviewing the grant of summary
judgment, the only question is whether the circuit court properly determined there
was no genuine issue of material fact. Scifres, 916 S.W.2d at 781.
We reject St. Joseph’s argument that the experts’ deposition testimony
contradicted their disclosures and, thus, makes the disclosures insufficient to
establish factual questions on causation. While we do not agree that causation is as
clear-cut as the Estate seems to believe, we do believe that when considering the
evidence as a whole, along with reasonable inferences to be given to it, that if Dr.
Newman’s testimony was believed that she marked “dissection” and Dr. Stevens’s
testimony is believed that she did not receive this information, the implication is
that the hospital was negligent in failing to communicate this information between
these two physicians. While the exact mechanism responsible for preventing
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adequate communication between the ER doctor and the radiologist is unclear, the
experts were clear that if Dr. Newman were to be believed in her testimony that
she requested an evaluation for dissection, this information should have made it to
Dr. Stevens. As the hospital is liable for the radiologist technician’s actions and its
electronic records system, a reasonable inference could be that the failure to have
Dr. Newman’s specific request reach Dr. Stevens must be attributable to hospital
negligence. However, if the experts disbelieved Dr. Newman on this, which they
all seemed to do to different extents, their general statements about not criticizing
the hospital naturally follow from that.
We agree with the Estate that the Estate’s experts were clear in their
opinions that if the information had made it to Dr. Stevens, Dr. Stevens would have
been under a duty to call Dr. Newman and explain the correct type of CT which
should be given. Dr. Stevens also specifically testified that if she had known Dr.
Newman wanted Baker evaluated for dissection, she would have called Dr.
Newman and had that discussion with her. Furthermore, Dr. Bacha specifically
testified that ninety-nine times out of one hundred, a phone call of this nature
would have been successful in getting the doctor to order the correct test.
St. Joseph focuses on the fact that Dr. Newman testified she believed
she had received a communication from Dr. Stevens via the PAX machine that
Baker could not be evaluated for dissection and the circuit court’s statement that all
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of Dr. Newman’s testimony needed to be considered, in opining that causation for
Baker’s injury was attributable to Dr. Newman alone, because any failure to
communicate about “dissection” in the order would not have changed the outcome.
We disagree with the circuit court that to survive summary judgment
Dr. Newman’s testimony must all be believed. If the case went to a jury, the jury
as the finder of fact would have “the right to believe part of the evidence and
disbelieve other parts, even if the evidence came from the same witness[.]” Sroka-
Calvert v. Watkins, 971 S.W.2d 823, 828 (Ky.App. 1998). The same should be
true on summary judgment.
As St. Joseph has tried to imply that because Dr. Newman requested
testing for dissection on another patient she may have been mistaken that she
requested evaluation for dissection on Baker, Dr. Newman could similarly be
mistaken that any information she received from radiology about being unable to
evaluate for dissection related to Baker. A jury could certainly believe Dr. Stevens
that she made no such communication to Dr. Newman and disbelieve Dr. Newman
on this point, which is distinct from what Dr. Newman placed in the order for
Baker’s chest CT.
But even if Dr. Newman were to be believed about what written
communication she received via the PAX machine about the radiologist being
unable to evaluate Baker for dissection, that does not mean that a phone call and
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interactive communication with Dr. Stevens would have the same result as a
written statement which did not offer any advice as to what Dr. Newman should
do. Dr. Postel’s testimony about the likelihood of a radiologist’s phone call
resulting in the ordering doctor changing the order to an appropriate test, along
with Dr. Stevens’s testimony that she would have called Dr. Newman about
ordering the correct test if informed as to the correct reason why the CT was
ordered, certainly provides a basis for a jury to infer that appropriate
communication would have resulted in the correct diagnosis and timely, lifesaving
surgery.
While it may not be likely that a jury would believe Dr. Newman over
hospital records as to what she requested for Baker, on summary judgment courts
are not to weigh the evidence and decide factual issues. We believe an appropriate
causal link can be made that the hospital’s failure to communicate the necessary
information was the ultimate cause of Baker’s death, for Dr. Newman’s initial
error in ordering the wrong kind of CT scan, would not have caused Baker harm if
it could have been promptly corrected via consultation with the radiologist.
Accordingly, we reverse and remand the Fayette Circuit Court’s grant
of summary judgment to St. Joseph.
THOMPSON, L., JUDGE, CONCURS.
GOODWINE, JUDGE, CONCURS IN RESULT ONLY.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Cory Michael Erdmann Jeffery T. Barnett
Richmond, Kentucky Kimberly G. DeSimone
Lexington, Kentucky
Joe C. Savage
Lexington, Kentucky
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