Bryan Fair v. Saint Joseph Health System, Inc.

RENDERED: JANUARY 6, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0392-MR
BRYAN FAIR AND TERESA FAIR APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE THOMAS L. TRAVIS, JUDGE
ACTION NO. 17-CI-01714
SAINT JOSEPH HEALTH SYSTEM,
INC.; KENTUCKY CARDIOLOGY,
PLLC; AND MUBASHIR QAZI, M.D. APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, LAMBERT, AND K. THOMPSON,1 JUDGES.
THOMPSON, K., JUDGE: Bryan and Teresa Fair appeal an order of the Fayette
Circuit Court dismissing Bryan’s medical malpractice claim and Teresa’s loss of
consortium claim against Saint Joseph Health System, Inc. (SJHS). We affirm
1
Judge Kelly Thompson authored this Opinion before his tenure with the Kentucky Court of
Appeals expired on December 31, 2022. Release of this Opinion was delayed by administrative
handling.
because the Fairs cannot establish that the treating physician who allegedly
committed medical malpractice against Bryan was either employed by, or was an
apparent or ostensible agent of, SJHS. Therefore, the Fairs cannot properly pursue
their negligence and vicarious liability claims against SJHS on such a basis and,
because there is no valid underlying cause of action against SJHS, any spoilation
of its records does not provide a basis for retaining SJHS as a party.
On October 18, 2016, Bryan underwent a cardiac catheterization. The
procedure was performed by Mubashir Qazi, M.D., at St. Joseph East Hospital,
which is part of SJHS. Bryan’s aortic valve was dissected during the procedure.
After spending several hours in the intensive care unit, Bryan was transported to
another hospital within the SJHS network where he underwent an operation to
repair the dissection.
The Fairs filed a medical negligence complaint in the Fayette Circuit
Court in May 2017. In addition to claims against Dr. Qazi and his employer,
Kentucky Cardiology, PLLC, the Fairs also claimed direct negligence and
vicarious liability against SJHS. Discovery ensued. The Fairs disclosed Brian C.
Swirsky, M.D. as their medical expert.
As discovery was underway, the Fairs motioned the circuit court to
compel SJHS to turn over metadata (i.e., data about other data) related to Bryan’s
chart access log provided to the Fairs in discovery. The Fairs argued they received
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an incomplete audit trail from SJHS. SJHS maintained that it provided all the data
in its possession and asserted the Fairs were on a “fishing expedition.” Eventually,
the circuit court allowed the Fairs to depose three of SJHS’s corporate
representatives regarding its medical record retention policies. Underlying the
prolonged motion practice related to the audit trail was the Fairs’ contention that
Dr. Qazi entered Bryan’s chart on November 1, 2016, after he had been informed
Bryan was seeing another cardiologist. The Fairs insisted Dr. Qazi potentially
made changes to Bryan’s chart. November 1, 2016, is also the date counsel for the
Fairs sent a letter of representation to SJHS. After deposing SJHS’s corporate
representatives, the Fairs disclosed Andrew Garrett, an expert witness related to
computer forensics and e-discovery, to support what they continued to assert was a
lack of metadata from SJHS regarding Bryan’s chart. Garrett did not provide any
medical opinions in his deposition. SJHS motioned the circuit court for summary
judgment after deposing Garrett. After briefing and oral arguments, the circuit
court granted the motion. The Fairs filed a motion to alter, amend, or vacate which
the circuit court denied.2 This appeal followed.
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).
2
The Fairs’ claims against Dr. Qazi and Kentucky Cardiology remain ongoing.
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We must consider the evidence of record in the light most favorable to the non-
movant and determine whether the circuit court correctly found there was 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, 780 (Ky.App.
1996).
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
Rules of Civil Procedure (CR) 56.03. The movant bears 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).
On appeal, the Fairs argue the circuit court erred in finding, as a
matter of law, that SJHS is not vicariously liable for the actions of Dr. Qazi and
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that they presented expert proof sufficient to overcome summary judgment. We
disagree.
In their brief to this Court, the Fairs rely on the principle of ostensible
agency to assert that SJHS is vicariously liable for the actions of Dr. Qazi. The
Fairs argue that SJHS did not provide adequate notice to Bryan to alert him that
Dr. Qazi was in fact an independent contractor through the SJHS hospital
admission form for Bryan’s procedure.3
“An apparent or ostensible agent is one whom the principal, either
intentionally or by want of ordinary care, induces third persons to believe to be his
agent, although he has not, either expressly or by implication, conferred authority
upon him.” Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 257 (Ky. 1985)
(internal quotations and citation omitted). Importantly, “[t]he burden of proving
agency is on the party alleging its existence.” Wright v. Sullivan Payne Co., 839
S.W.2d 250, 253 (Ky. 1992).
As further explained in Paintsville Hospital Company, the cases apply
the principle of ostensible agency to non-employee physicians “whom share the
common characteristic of being supplied through the hospital rather than being
selected by the patient.” 683 S.W.2d at 257. In these sorts of cases, “[a] general
3
While the Fairs makes some arguments about the legibility and content of this form, as they
ultimately discuss the efficacy of its contents to immunize SJHS, we do as well.
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representation to the public is implied from the circumstances.” Id. at 256.
Typically, this has resulted from treatment by emergency room physicians. See id.
at 257 (listing cases). However, other staff supplied by a hospital just before
treatment may also be considered ostensible agents of the hospital. See Williams v.
St. Claire Medical Center, 657 S.W.2d 590 (Ky.App. 1983) (involving nurse
anesthetist who interviewed patient in his hospital room prior to the surgery with
this being was first time the patient was introduced to her).
The problem with the Fairs’ argument, is that under the
circumstances, it was not SJHS’s responsibility to alert them to the fact that Dr.
Qazi was not SJHS’s employee, because they have failed to identify any evidence
which would have allowed the Fairs to reasonably believe him to be SJHS’s
employee based on the circumstances.
According to Dr. Qazi’s undisputed deposition testimony, Bryan was
a patient of Dr. Qazi and was seen by Dr. Qazi at Kentucky Cardiology in the
months leading up to the cardiac catherization procedure, having been referred to
him by another cardiologist. Dr. Qazi also testified that procedure, which is the
subject of this malpractice action, was also scheduled through Dr. Qazi’s office at
Kentucky Cardiology. So, while the procedure was to be performed at SJHS, the
hospital did not supply Dr. Qazi to Bryan, rather Bryan had already selected Dr.
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Qazi and Dr. Qazi and Bryan had an ongoing established doctor-patient
relationship.
The only evidence the Fairs point to on appeal as to suggesting that
SJHS held out Dr. Qazi as its employee is the SJHS hospital admission form for
Bryan’s procedure. The first paragraph of the general consent form states in
relevant part that the admitting and treating physician “may or may not be
employed by [SJHS].” Paragraph 7 reads:
INDEPENDENT STATUS OF PHYSICIANS: I
recognize that not all Physicians and healthcare providers
including, but not limited to, Certified Registered Nurse
Anesthetists, Radiologists, Emergency Room Physicians,
Anesthesiologists, Physical, Occupational and Speech
Therapists, residents or medical students (under the
supervision of Physicians and/or residents) who provide
Services to me during this admission are employees or
agents of the Hospital. Such individuals are
INDEPENDENT CONTRACTORS who are granted
privileges to use the Hospital for private Patients and bill
separately for their Services. In addition, I understand
that the Hospital is not responsible for nor does it assume
any liability for the acts or omissions of any such
independent contractors.
(Emphasis in original.) This form neither affirms nor refutes that physicians and
staff treating Bryan are hospital employees and makes no representation specific to
Dr. Qazi’s status. We conclude that although this form did not specifically deny
that all physicians were SJHS employees, it was still sufficient to reasonably notify
Bryan that Dr. Qazi should not be assumed to be an employee of SJHS. See Sneed
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v. University of Louisville Hospital, 600 S.W.3d 221, 233 (Ky. 2020) (interpreting
forms which specifically stated that physicians are independent contractors).
Furthermore, the Fairs have failed to provide any evidence to establish
that SJHS had any intent to deceive Bryan into believing that Dr. Qazi was its
employee or held out Dr. Qazi as his employee. See id. While the Fairs assert that
Dr. Qazi is Chief of Cardiology at St. Joseph East Hospital, they do not claim
Bryan knew or relied on that status (which was in fact not linked to Dr. Qazi being
employed by either St. Joseph East Hospital or SJHS, but to him having privileges
there) in determining to be treated by him. Furthermore, the Fairs have not
intimated that SJHS held Dr. Qazi out as having such a status. Given the
undisputed facts of this case, as a matter of law the Fairs have failed to satisfy their
burden to prove there was any basis to conclude that Dr. Qazi was SJHS’s
ostensible agent, thus allowing liability to flow to SJHS.
Finally, the Fairs maintain their contention that SJHS failed to produce
a complete audit trail of Bryan’s records. We note that although the Fairs argue
that SJHS had a duty under federal law to maintain Bryan’s records in an accurate
form, the Fairs did not ask to amend their complaint to add a cause of action
against SJHS regarding its breach of such a duty and, thus, this issue must be
analyzed in how it relates to the existing medical malpractice issue. Although
Garrett’s deposition testimony was at odds with the three administrative
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representatives from SJHS regarding records retention, we agree with the circuit
court that spoliation, if it occurred, can appropriately be addressed through our
evidentiary rules and missing evidence instructions. Monsanto Co. v. Reed, 950
S.W.2d 811, 815 (Ky. 1997).
As explained previously, SJHS cannot be liable based on medical
malpractice by Dr. Qazi. An allegation regarding spoilation cannot function to
save the Fairs’ negligence and vicarious liability claims against SJHS which would
have to be grounded in an underlying medical malpractice of its employees.
However, SJHS cannot be liable Dr. Qazi’s actions as detailed supra and as a
matter of law there is no evidence that its own employees who were involved in
Bryan’s care committed medical malpractice. The Fairs’ medical expert, Dr.
Swirsky, testified at his deposition that he had no criticisms of any SJHS employee
that cared for Bryan and he did not attribute any delay in treatment or any
potentially wrong treatment to any SJHS employee.
Accordingly, we affirm because the Fayette Circuit Court properly
granted summary judgment in favor of SJHS and dismissed it as a party.
ALL CONCUR.
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BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE SAINT
JOSEPH HEALTH SYSTEM, INC.:
Justin S. Peterson
Laraclay Parker Terri E. Boroughs
Alexandra DeMoss-Campbell Megan L. Adkins
Lexington, Kentucky Louisville, Kentucky
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