Dennis Pastor, Administrator of the Estate of Lucy Pastor v. Providence Healthcare of Richwood, LLC D/B/A Richwood Nursing and Rehab

RENDERED: JUNE 3, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1425-MR
DENNIS PASTOR,
ADMINISTRATOR OF THE ESTATE
OF LUCY PASTOR, DECEASED APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
v. HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 16-CI-00412
PROVIDENCE HEALTHCARE OF
RICHWOOD, LLC D/B/A
RICHWOOD NURSING AND
REHAB; NAIR INTERNAL
MEDICINE, PLLC; AND SURESH
NAIR, M.D. APPELLEES
OPINION
AFFIRMING
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BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
ACREE, JUDGE: Dennis Pastor, as administrator of Lucy Pastor’s estate, appeals
the Oldham Circuit Court’s October 21, 2020, summary judgment in favor of
Appellees. The estate argues a nurse should not be prohibited from testifying to
medical causation and that a nurse can be as qualified to do so as a physician. This
argument misses the mark. As discussed, the trial court granted summary
judgment because the estate failed to meet Appellees’ summary judgment motion
with evidence of its selected expert’s ability to establish the standard of care, that
such standard was breached, and a causal link between the alleged breach and the
claimed injuries. For the following reasons, we affirm.
BACKGROUND
On September 11, 2015, Lucy Pastor was transported to Providence
Healthcare for rehabilitation after a stroke. At the time of admission, Pastor
suffered from renal insufficiency. Due to this ailment, she was under the care of
several nurses and Dr. Nair.
A week later, Pastor was admitted to Baptist Hospital and eventually
transferred to Norton Brownsboro Hospital with renal and respiratory failure.
After a lengthy stay, she was transferred to a rehabilitation facility where she
remained until she was cleared to return home some months later.
Pastor blamed Providence and Dr. Nair for her renal and respiratory
failure and filed a medical negligence action against them. She claimed Dr. Nair
deviated from the standard of care, thereby sending her into renal and respiratory
failure. Four years later, she passed away from unrelated causes and her estate was
substituted as plaintiff in the litigation.
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During litigation, the estate filed expert disclosures identifying a
nurse, Kathy D. Shireman, as the only expert witness to testify on Pastor’s behalf.
This prompted Appellees to file motions for summary judgment due to the failure
to disclose a qualified expert to offer an opinion as to medical causation. The
estate argued Nurse Shireman was qualified to explain the causation and could
express her expert opinion based on Pastor’s medical and hospital records, Dr.
Nair’s diagnosis, and the circumstances of her deteriorated health.
On October 15, 2020, the trial court held a hearing on the summary
judgment motions. The key ruling from that hearing was that Pastor failed to
supply evidence that Nurse Shireman was qualified to render an expert opinion,
and the medical records alone were insufficient to establish causation. Therefore,
it granted summary judgment in favor of Appellees. This appeal followed.
STANDARD OF REVIEW
The standards for reviewing a circuit court’s entry of summary
judgment on appeal are well-established and were concisely summarized by this
Court in Lewis v. B & R Corporation, 56 S.W.3d 432 (Ky. App. 2001):
The standard of review on appeal when a trial court grants
a motion for 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. The trial court must view the
evidence in the light most favorable to the nonmoving
party, and summary judgment should be granted only if it
appears impossible that the nonmoving party will be able
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to produce evidence at trial warranting a judgment in his
favor. The moving party bears the initial burden of
showing that no genuine issue of material fact exists, and
then the burden shifts to the party opposing summary
judgment to present at least some affirmative evidence
showing that there is a genuine issue of material fact for
trial.
Id. at 436 (internal quotation marks, citations, and footnotes omitted). Because
summary judgments involve no fact finding, we review the circuit court’s
decision de novo. 3D Enters. Contr. Corp. v. Louisville & Jefferson County Metro.
Sewer Dist., 174 S.W.3d 440, 445 (Ky. 2005).
ANALYSIS
“[O]rdinarily expert evidence is necessary to support the conclusion
of causation.” Jarboe v. Harting, 397 S.W.2d 775, 777 (Ky. 1965). But the estate
first claims that the medical records themselves supply the necessary proof to
allow the case to go to a jury under the doctrine of res ipsa loquitur. We disagree.
Res ipsa loquitur cases are those in which “the common knowledge or
experience of laymen is extensive enough to recognize or to infer negligence from
the facts.” Adams v. Sietsema, 533 S.W.3d 172, 179 (Ky. 2017) (quoting Jarboe,
397 S.W.2d at 778). “Expert testimony is not required . . . in res ipsa loquitur
cases, where ‘the jury may reasonably infer both negligence and causation from the
mere occurrence of the event and the defendant’s relation to it.’” Id. (quoting
Blankenship v. Collier, 302 S.W.3d 665, 670 (Ky. 2010)).
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The estate does not explain to this Court, nor does it appear to have
explained to the trial court’s satisfaction, how the evidence here fits “the narrow
exception[]” of res ipsa loquitur jurisprudence. Blankenship, 302 S.W.3d at 670.
Instead, as it did before the trial court, (Record (R.) 324-331), the estate focuses on
the admissibility and authentication of the records. We agree that the res ipsa
loquitur exception exists and further agree that rules regarding admissibility and
authentication are not obstacles to its application. Therefore, of course, the narrow
exception to the need for expert testimony can apply in a proper case.
However, the estate told neither the trial court nor this Court how
those records, by themselves, carry the day on the issue of standard of care or
breach or causation. After examining these medical records, this Court cannot
conclude they prove the elements of this claim without expert explanation. The
estate needed an expert to explain the records and to testify as to the standard of
care, how it was breached, and how that breach caused an injury.
The only remaining hope left for the estate is to persuade us that the
trial court abused its discretion in rejecting the estate’s proposed expert, Nurse
Shireman. Here, too, we see no abuse of discretion in the trial court’s decision.
On this point, the estate initially focuses on a legal question: is a
nurse categorically unqualified to offer an expert medical opinion concerning a
physician’s standard of care? The estate finds an analogy in Savage v. Three
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Rivers Medical, 390 S.W.3d 104 (Ky. 2012), where the Kentucky Supreme Court
decided a nurse practitioner was qualified to discuss x-rays. The Court said, x-ray
technology “may be explained by any person who possesses the requisite scientific
knowledge to understand it, and it is not necessary for one to be a physician . . . .”
Id. at 117. This is a red herring argument that need not be addressed. The trial
court did not grant summary judgment because the proffered expert was a nurse.
A careful reading of the judgment shows the trial court held that to
survive a summary judgment motion when the defendant asserts there is no
qualified expert to prove the case, the plaintiff must respond with no less than a
countervailing affidavit of the expert’s qualifications in the necessary medical
specialty. Said the trial court:
While Plaintiff contends that Defendant did not take
[the] deposition of Nurse Shireman to explore her
qualifications to give an opinion on medical negligence
and/or medical causation, it is clear that in proffering an
expert witness in [the] face of Summary Judgment, at a
minimum the expert must supply an affidavit with respect
to these qualifications.
The Court does not consider that this has been done
and does not find that Nurse Shireman has satisfied at a
minimum the ability to present an opinion as an expert as
to any alleged medical causation with regard to the nursing
home, nor has she presented an affidavit as to her expertise
qualifying her to testify as to the medical standard of care
and medical causation for the Nair Defendants
[Appellees], who practice internal medicine.
(Summary Judgment, R. 396.)
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The trial court rejected the estate’s protest that Appellees failed to
pursue sworn testimony of the estate’s own expert. In the trial court’s view, it was
the estate that failed to put into the record the evidence necessary to counter
Appellees’ claim that there was no qualified expert who would testify to, and
therefore no evidence of, the standard of care, breach, or causation. That is also
the view of this Court.
“Once a party files a properly supported summary judgment motion,
the nonmoving party cannot defeat it without presenting at least some affirmative
evidence showing that there is a genuine issue of material fact for trial.” Andrew v.
Begley, 203 S.W.3d 165, 169 (Ky. App. 2006) (citing Steelvest, Inc. v. Scansteel
Serv. Ctr., Inc., 807 S.W.2d 476, 482 (Ky. 1991)). Appellees’ motion for summary
judgment claimed there is no evidence the estate could present expert testimony
necessary to prove its case. This put upon the estate the onus of providing
evidence to the contrary.
“To survive a motion for summary judgment in a medical malpractice
case in which a medical expert is required, the plaintiff must produce expert
evidence or summary judgment is proper.” White v. Norton Healthcare, Inc., 435
S.W.3d 68, 76 (Ky. App. 2014) (emphasis added) (citing Turner v. Reynolds, 559
S.W.2d 740, 741-42 (Ky. App. 1977)). The estate did not respond to the motion
with evidence.
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Instead, it first re-presented the trial court with “Plaintiff’s
Identification of Expert Witness,” a document complying with a scheduling order
filed nearly two years into the litigation and three months before the summary
judgment motion. That document identified Nurse Shireman as an expert and
expressed the estate’s “anticipat[ion] that Nurse Shireman will testify that
[Appellees] deviated from the acceptable standards of care . . . and as a direct
result [Lucy Pastor] endured physical and emotional pain and suffering . . . .” (R.
333.) However, anticipation, like “hope or bare belief . . . cannot be made basis for
showing that a genuine issue as to a material fact exists.” Neal v. Welker, 426
S.W.2d 476, 479-80 (Ky. 1968).
The estate also provided a copy of Nurse Shireman’s curriculum vitae
(CV). However, statements in a CV, unlike statements in an affidavit or
deposition, are not given under oath and penalty of perjury. Both an affidavit and a
deposition are designed, by the inclusion of that oath, to provide assurance that the
statements therein are true and entitled to a third-party’s belief in their veracity.
Hence, they constitute evidence.
On the other hand, a bare curriculum vitae, like a job applicant’s
résumé, serves a different purpose. Although every word in a CV may prove to be
true when tested, the first test is whether the person described in the CV is willing
to swear an oath to its contents.
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“[S]ummary judgment is to be awarded to the moving party ‘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.’ CR 56.03.” Neal, 426 S.W.2d at 478-79. Depositions, discovery responses,
stipulations, admissions, and affidavits are sworn to under oath. Even a verified
complaint or answer will bear an oath to its truthfulness. However, without such
verification and oath, even “pleadings are not evidence[.]” Educ. Training Sys.,
Inc. v. Monroe Guar. Ins. Co., 129 S.W.3d 850, 853 (Ky. App. 2003); see also
McAlpin v. American General Life Ins. Co., 601 S.W.3d 188, 193 (Ky. App. 2020)
(“[A] party responding to a properly supported summary judgment motion cannot
merely rest on the allegations in his pleadings.”).
No evidence in this record creates a genuine issue regarding the
standard of care, whether Appellees breached that standard, or whether any such
breach caused the injuries alleged. For this reason, Appellees were entitled to
summary judgment. For these reasons, the summary judgment is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE
PROVIDENCE HEALTHCARE OF
Lee E. Sitlinger RICHWOOD, LLC D/B/A
Louisville, Kentucky RICHWOOD NURSING AND
REHAB:
Matthew W. Breetz
Bethany A. Breetz
Neil E. Barton
Louisville, Kentucky
BRIEF FOR APPELLEES SURESH
NAIR, M.D. AND NAIR INTERNAL
MEDICINE, PLLC:
Gerald R. Toner
Joshua W. Davis
Nicholas J. Davis
Louisville, Kentucky
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