Donna Thacker v. Pikeville Medical Center, Inc.

RENDERED: NOVEMBER 10, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1360-MR
DONNA THACKER APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
v. HONORABLE HOWARD KEITH HALL, JUDGE
ACTION NO. 20-CI-01305
PIKEVILLE MEDICAL CENTER,
INC.; ABIGAIL HATFIELD, D.O.;
KENTUCKY EMPLOYERS’
MUTUAL INSURANCE; AND
MICHAEL MCCLAIN, D.O. APPELLEES
OPINION
AFFIRMING
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BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.
LAMBERT, JUDGE: Donna Thacker has appealed from the October 19, 2021,
summary judgment of the Pike Circuit Court dismissing, with prejudice, her
medical malpractice claim against Abigail Hatfield, D.O., for damages she
sustained during a procedure while Hatfield was a medical student. We affirm.
Thacker underwent a surgical procedure to her right shoulder at the
Pikeville Medical Center (PMC) on September 10, 2019, during which she claimed
to have been injured while the general endotracheal anesthesia was being
administered. One year later, Thacker filed a complaint in the Pike Circuit Court
seeking damages from PMC, Michael McClain, D.O. (Dr. McClain), and Hatfield,
who at the time of the procedure was a student at the University of Pikeville’s
Kentucky College of Osteopathic Medicine. PMC and Dr. McClain moved to
dismiss Thacker’s complaint pursuant to Kentucky Rules of Civil Procedure (CR)
12.02(f) for her failure to state a cognizable claim or for a more definite statement
pursuant to CR 12.05 as the complaint did not contain sufficient factual allegations
to support her assertions that any of the defendants could be found negligent.
Hatfield joined in this motion. The court denied the motion to dismiss, but it
granted the motion for a more definite statement and provided Thacker time to file
an amended complaint. She filed the amended complaint on March 30, 2021,
alleging that Dr. McClain and Hatfield were responsible for administering the
anesthesia and were negligent. Later, Kentucky Employers’ Mutual Insurance
(KEMI) intervened in Thacker’s action to assert a workers’ compensation
subrogation claim against the defendants.
In August 2021, Hatfield filed a motion for summary judgment,
seeking dismissal of Thacker’s claims against her. She argued that, because she
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was a medical student and was following the instructions and directions of Dr.
McClain at the time of the procedure, she was exculpated from any liability. In
addition, she stated that she did not owe Thacker a duty of care as a medical
student and could not be held to an elevated standard of care. Finally, Hatfield
argued that public policy supported not imposing a doctor’s duties on medical
students as they must be properly trained to successfully perform their jobs. In
response, Thacker argued that disputed facts remained to be decided, which would
preclude summary judgment.
By order entered October 19, 2021, the circuit court granted Hatfield’s
motion for summary judgment, concluding that no genuine issues of material fact
existed and agreeing with her argument that, in assisting Dr. McClain, Hatfield was
“akin to a nurse who assists a doctor during a procedure and follows the doctor’s
orders[.]” As Thacker had not alleged that Hatfield had deviated from Dr.
McClain’s orders, the court found that her execution of these orders relieved her
from any responsibility or liability in this case, citing City of Somerset v. Hart, 549
S.W.2d 814, 817 (Ky. 1977). Therefore, the court dismissed Thacker’s and
KEMI’s claims against Hatfield with prejudice. Thacker’s claims against PMC
and Dr. McClain remained pending. The court made the summary judgment final
and appealable pursuant to CR 54.02(1), and this appeal now follows.
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On appeal, Thacker contends that the circuit court improperly entered
summary judgment in Hatfield’s favor, arguing that it was premature, that some
liability attached to Hatfield, and that Hatfield had a duty to her. Hatfield disputes
these arguments in her brief.
Our applicable standard of review is set forth in Patton v. Bickford,
529 S.W.3d 717, 723 (Ky. 2016):
Summary judgment is a remedy to be used
sparingly, i.e. “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.” Shelton v. Kentucky Easter
Seals Society, Inc., 413 S.W.3d 901, 905 (Ky. 2013)
(citations omitted). We frequently caution, however, the
term “impossible” is to be used in a practical sense, not
in an absolute sense. See id. (citing Perkins v.
Hausladen, 828 S.W.2d 652, 654 (Ky. 1992)). The trial
court’s primary directive in this context is to determine
whether a genuine issue of material fact exists; if so,
summary judgment is improper, Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.
1991). This requires that the facts be viewed through a
lens most favorable to the party opposing summary
judgment, here the Estate. Id. It is important to point out
that “a party opposing a properly supported summary
judgment motion cannot defeat it without presenting at
least some affirmative evidence showing that there is a
genuine issue of material fact for trial.” Id. at 482.
A motion for summary judgment presents only
questions of law and “a determination of whether a
disputed material issue of fact exists.” Shelton, 413
S.W.3d at 905. Our review is de novo, and we afford no
deference to the trial court’s decision.
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With this standard in mind, we shall consider Thacker’s arguments.
For her first argument, Thacker contends that the entry of summary
judgment regarding Hatfield’s lack of liability was premature because there was no
evidence in the record that Dr. McClain had provided the directions or orders that
harmed her, or that Dr. McClain was responsible for her injuries or for any of
Hatfield’s actions. We do not agree with Thacker’s assertions regarding the lack
of evidence that Hatfield was not acting solely under Dr. McClain’s guidance. As
Hatfield points out, in his answer to the amended complaint, Dr. McClain admitted
that “he was responsible for administering and monitoring the anesthesia to
[Thacker] and the care associated therewith.” We agree with Hatfield that this
constitutes a judicial admission, which causes Thacker’s argument that there was
no evidence to fail.
[A] judicial admission is conclusive, in that it removes
the proposition in question from the field of disputed
issue, and may be defined to be a formal act done in the
course of judicial proceedings which waives or dispenses
with the necessity of producing evidence by the opponent
and bars the party himself from disputing it; and, as a
natural consequence, allows the judge to direct the jury to
accept the admission as conclusive of the disputed fact.
Sutherland v. Davis, 286 Ky. 743, 151 S.W.2d 1021, 1024 (1941). Therefore, we
find no merit in Thacker’s argument that summary judgment was premature.
Next, Thacker argues that some liability properly attaches to Hatfield,
which we shall consider in conjunction with her argument that Hatfield owed a
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duty to her. In order to establish a negligence claim, a plaintiff must prove, “(1)
the defendant owed the plaintiff a duty of care, (2) the defendant breached the
standard by which his or her duty is measured, and (3) consequent injury. . . .
Duty, the first element, presents a question of law.” Pathways, Inc. v. Hammons,
113 S.W.3d 85, 88-89 (Ky. 2003) (citing Mullins v. Commonwealth Life Insurance
Co., 839 S.W.2d 245, 247-48 (Ky. 1992)). Thacker asserts that there was
insufficient discovery taken to support a finding as to any proportionate share of
her liability, that “[m]edical students who are at the point of acting as doctors,
under supervision, are typically sued in actions brought by patients for medical
negligence or malpractice[,]” that Hatfield was a medical intern or resident at the
time the procedure took place, and that, because she had been engaging in patients’
medical care, she should be held liable for any harm that she caused if it breached
her standard of care. We disagree.
Rather, we agree with Hatfield’s argument that, under Kentucky law,
a medical student under the direction of a physician is not independently liable to a
patient for medical malpractice.
Hatfield first cites to Sameuls v. Willis, 133 Ky. 459, 118 S.W. 339(1909), a malpractice action brought against a surgeon after a sponge had been left
inside of a patient. The former Court of Appeals indicated that the surgeon had
“sent down a trained nurse and followed next day with a medical student as
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assistant.” Id. at 340. As Hatfield points out, the medical student was not named
as a defendant in the action; rather, it was filed against the surgeon.
Hatfield next cites to City of Somerset v. Hart, supra, another
malpractice action, this one arising from a scalpel left in a patient’s abdomen after
surgery. In this opinion, the Supreme Court of Kentucky discussed whether a
hospital employee could be a servant of two masters (an independent physician and
the hospital) and recognized an exculpatory doctrine that shielded nurses from
liability under certain circumstances:
We recognize that the nurse’s duty to obey such orders
exculpates her and her hospital employer from
responsibility for the results of the competent execution
of the orders, unless the orders are so obviously improper
that the ordinarily prudent nurse would not obey them.
When exculpation is the result, it is so because the
nurse’s obedience to the orders does not constitute
negligence, and consequently, there is no basis for
vicarious liability of the hospital.
549 S.W.2d at 817.
We agree with Hatfield that Hart applies in the present case to shield
her from liability as she was working under Dr. McClain’s direction. Any attempt
by Thacker to suggest that Hatfield might have been acting outside of his direction
is misguided, as Dr. McClain admitted in his answer that he was responsible for
administering and monitoring Thacker’s anesthesia. See Sutherland, supra.-7-
Therefore, Hatfield, as a medical student under Dr. McClain’s direction, cannot be
held independently liable as a matter of law.
Finally, Hatfield contends that she is precluded from liability based
upon Kentucky’s definition of “doctor” as set forth in Kentucky Revised Statutes
(KRS) Chapter 311. In Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d
93, 113 (Ky. 2008), the Supreme Court explained the duty of care associated with
medical malpractice cases:
In a medical malpractice case, the plaintiff must prove
that the treatment given was below the degree of care and
skill expected of a reasonably competent practitioner and
that the negligence proximately caused the injury or
death. Reams v. Stutler, 642 S.W.2d 586 (Ky. 1982). A
physician has the duty to use the degree of care and skill
expected of a competent practitioner of the same class
and under similar circumstances. Grubbs ex rel. Grubbs
v. Barbourville Family Health Ctr., P.S.C., 120 S.W.3d
682 (Ky. 2003); Mitchell v. Hadl, 816 S.W.2d 183, 185
(Ky. 1991); Cordle v. Merck & Co., Inc., 405 F.Supp.2d
800 (E.D. Ky. 2005).
KRS 311.375(1) makes it clear that a person must have graduated
from medical school and obtained an appropriate degree before referring to herself
as a doctor:
No person shall, in connection with the practice of
medicine, surgery, osteopathy, optometry, dentistry,
podiatry, pharmacy, chiropractic, psychology or
psychiatry, nursing, anesthesiology, physio or physical
therapy, or any other profession or business having for its
purpose the diagnosis, treatment, correction or cure of
any human ailment, condition, disease, injury or
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infirmity, hold himself or herself out as a doctor or
employ or use in any manner the title “Doctor” or “Dr.,”
unless he or she actually has graduated and holds a
doctor degree from a school, college, university or
institution authorized by its governing body to confer
such degree.
And KRS 311.550(10) defines the “practice of medicine or osteopathy” as “the
diagnosis, treatment, or correction of any and all human conditions, ailments,
diseases, injuries, or infirmities by any and all means, methods, devices, or
instrumentalities[.]”
The record establishes that Hatfield was still in medical school at the
time of Thacker’s procedure. In fact, Thacker states in her complaint that Hatfield
was “a student enrolled at University of Pikeville’s Kentucky College of
Osteopathic Medicine training to become a medical doctor” at the relevant time.
Thacker was not a medical intern or resident as Thacker asserted in her brief
because she had not yet graduated. Because she was not yet a doctor, we agree
with Hatfield that she could not form the special relationship with Thacker that
would create a duty between them, as would be formed between a physician and a
patient. Accordingly, Thacker cannot establish a prima facie case of medical
negligence against Hatfield as a matter of law.
In addition, Hatfield argues that, as a matter of public policy, medical
students who are under the direction of a physician should not be independently
liable to a patient for medical malpractice. In support, she cites to the Supreme
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Court of Kentucky’s opinion in Withers v. University of Kentucky, 939 S.W.2d
340, 343 (Ky. 1997), in which that Court recognized that “[m]edical students and
those in allied health sciences must have access to a sufficient number of patients
in a variety of settings to insure proper training in all areas of medicine.” Based
upon our holding above, we need not reach this issue. But we also note that the
setting of public policy in Kentucky is within the province of the Legislature, not
the courts:
It is beyond the province of a court to vitiate an act
of the legislature on the ground that the public policy
therein promulgated is contrary to what the court
considers to be in the public interest. It is the prerogative
of the legislature to declare what acts constitute a
violation of public policy and the consequences of such
violation. Re Peterson’s Estate, 230 Minn. 478, 42
N.W.2d 59, 18 A.L.R.2d 910 [(1950)]. The propriety,
wisdom and expediency of statutory enactments are
exclusively legislative matters. Hallahan v. Mittlebeeler,
Ky., 373 S.W.2d 726, 97 A.L.R.2d 215 [(1963)]. As so
aptly stated in Collison v. State ex rel. Green, 9 W. W.
Harr., Del., 460, 2 A.2d 97, 108, 119 A.L.R. 1422, 1437
[(1938)]:
‘* * * it is the province of the legislature and
not of the courts to pass upon matters of
policy. The legislative hand is free except
as the constitution restrains; and courts are
bound by a most solemn sense of
responsibility to sustain the legislative will
in the appropriate field of its exercise, even
though in the opinion of the judges as
individuals the legislature had acted in an
unwise manner.’
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Owens v. Clemons, 408 S.W.2d 642, 645 (Ky. 1966). See also Delahanty v.
Commonwealth, 558 S.W.3d 489, 508-09 (Ky. App. 2018).
For the foregoing reasons, the summary judgment of the Pike Circuit
Court is affirmed.
MAZE, JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE
OPINION.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE ABIGAIL
HATFIELD, D.O.:
Glenn Martin Hammond
Pikeville, Kentucky Stephen S. Burchett
Michael G. Erena
Lexington, Kentucky
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