ACREE, Chief Judge.
Appellants Joann Stanley, Catherine Young, as personal representative of the Estate of William Young, Melissa Kelso, Wanda Zachary, Charles Humphrey, as executor of the Estate of Richard Humphrey, Phillip Cruce, and Brenda Korb, bring separate but identical appeals from separate but nearly identical orders of the Hopkins Circuit Court granting summary judgments against them in favor of appellees Dr. Philip Trover and Baptist Health Madisonville f/k/a Trover Clinic Foundation,
More than four dozen cases were appealed to this Court related to Dr. Trover and the Foundation. By means of the Court's prehearing conference procedure, about half of those cases settled prior to briefing. This Court, with the assistance of the parties, divided the remaining twenty-four cases into three main groups, with a few outlying cases.
Because the Appellants in this group raise common issues in their separate appeals, we have consolidated their cases and resolve each in this opinion. For the following reasons, we affirm as to each appeal.
The Foundation consists primarily of the Regional Medical Center and the Trover Clinic, both located in Madisonville, Kentucky. Dr. Trover began employment with the Foundation in 1980, and quickly assumed the position of Chair of the Medical Center Radiological Department.
In late 2003, Dr. Neil Kluger, an oncologist associated with the Foundation, became concerned over what he considered substandard work habits displayed by Dr. Trover and, specifically, an unacceptable number of misread radiological films. Dr. Kluger addressed his concerns to the Medical Center's Medical Executive Committee, the Foundation's Board of Governors, and the Kentucky Board of Medical Licensure.
The Committee extensively investigated the allegations and, on April 20, 2004, issued a report outlining its findings. The Committee concluded Dr. Trover's rate of error when interpreting mammographic slides was "unacceptable"; his 1.8% call-back rate
Based on its investigation, the Committee recommended that the Board of Governors revoke Dr. Trover's clinical privileges and terminate his membership on the Medical Center's medical staff, subject to reinstatement if certain conditions were met. Dr. Trover resigned from Medical Center in April 2004 and resumed practice in Michigan.
The Kentucky Board of Medical Licensure also reviewed Dr. Trover's practice, and on July 14, 2005, issued an Emergency Order temporarily suspending his medical license. Dr. Trover contested the suspension, and on April 13, 2006, entered into an agreed order with the Board that reinstated his license with numerous restrictions.
Based on the allegations, investigations, and the potential number of radiological misreads, the Foundation conducted a review of approximately 10,000 of Dr. Trover's radiological interpretations occurring between 2003 and 2004. That review, according to the Foundation, indicated that the rate of discrepancy between Dr. Trover's interpretations and those of the reviewers was "well within the standard of care." Nevertheless, around this time, media reports began to surface concerning the allegations made by Dr. Kluger. In March 2004, an announcement appeared in the local newspaper, the Madisonville Messenger, encouraging members of the public who had received radiological exams at the Medical Center during the pertinent period to present themselves as potential members of a proposed class action lawsuit against Dr. Trover and the Foundation. All the named Appellants fell within these parameters.
Joann Stanley was involved in a car accident on June 21, 2000. She was transported to the Medical Center claiming pain in her back and neck. Dr. Trover interpreted a cervical spine x-ray as essentially normal. Stanley was treated and released that day.
Stanley continued to experience pain and returned to the Medical Center for additional treatment. On July 10, 2000, Stanley underwent a cervical MRI. Dr. Trover interpreted the MRI, noting prominent bulging at the C5 and C6 discs. The exam was otherwise unremarkable.
A few days later, Stanley underwent a second MRI of the cervical spine. The radiologist that day, Dr. Craig Lundquist, interpreted the film. He reported: "Comparison is made to an examination dated July 10th. There is a central disk protrusion at the C5-6 level which impinges on the anterior aspect of the cord. No other significant disk bulges are seen." In other words, Dr. Lundquist agreed with Dr. Trover's interpretation.
Stanley underwent a cervical disc excision (fusion) at the C5-6 level of her cervical (neck) spine in September 2000. The surgery proved successful. Post-surgery, Dr. Lundquist interpreted x-rays of Stanley's cervical spine, finding no clinically significant acute bone or joint abnormalities.
Four years later, on May 7, 2004, Dr. Jacob Parker performed an addendum/re-read of the July 10, 2000 cervical spine MRI originally read by Dr. Trover.
Stanley claims Dr. Trover negligently misinterpreted her July 10, 2000 MRI, resulting in delayed and incomplete treatment of the C3 and C4 area, and substantial pain. Stanley admitted in deposition she has not sought any follow-up treatment since learning of the C3-4 disc bulge.
In mid-2003, Young was experiencing hoarseness, throat discomfort, unexplained weight loss, a fever, and chronic sinusitis. Dr. Trover interpreted a June 8, 2003, chest x-ray as noting slight cardiomegaly (enlargement of the heart). Dr. Parker re-read the x-ray on April 19, 2004. He found: changes in Young's lungs consistent with COPD associated with pulmonary arterial hypertension; borderline left ventricular failure; heart size that is larger than normal; and the presence of a tracheotomy tube.
Young was soon diagnosed with squamos cell carcinoma (cancer) of the larynx. Young had surgery to remove his larynx and underwent a course of radiation.
On June 21, 2003, Dr. Trover interpreted as normal a CT scan of Young's head. A re-read by Dr. Parker on April 19, 2004, indicated that there was a small polyp in the left maxillary sinus, a small amount of fluid or a polyp or a retention cyst in the right maxillary sinus, and nercosal thickening involving the nasal terbinates and the ethmoid sinuses bilaterally.
Later that year, Young began complaining of pain in his back. A visit to his oncologist in December 2003 did not yield any test, scans, or blood work; Young was told he was cancer-free.
Young presented to the emergency room on February 10, 2004, with severe back pain. He was having trouble getting out of his bed, and had developed pressure sores because pain prevented him from moving. Dr. Trover interpreted a lumbar spine x-ray from that day and found hypertrophic spurring, especially at L4-L5, but no compression fractures. A re-read by Dr. Parker revealed the following impressions: compression fracture at L2 and possible lytic lesion at L3; multilevel degenerative changes; small abdominal aneurysm; constipation; and spinal stenosis.
Young returned to the hospital on February 17, 2004, and over the next several days underwent multiple tests and consultations. Dr. Trover interpreted an x-ray of Young's lumbar spine on February 18, 2013, finding: compression fractures of L3-L2, osteoporosis, and hypertrophic spurring at L4-L5. Dr. Parker, upon re-reading the x-ray, attributed the factures to a possible metastic lesion rather than osteoporosis.
Dr. Trover further interpreted an x-ray of Young's thoracic spine, also taken on February 18, 2004, which revealed osteoporosis and a slight increase in a kyphosis, but no acute fractures. Dr. Parker's re-read indicated mild degenerative changes, prominent degenerative changes in the cervical spine, and slight compression of the right side of the superior end plate of T-12.
Two days later, an MRI of Young's lumbar spine revealed metastatic disease (cancer) at multiple vertebral levels, compression fractures at L1-L2; and disc bulges at L3-L4, L4-L5, and L5-S1. An MRI of the thoracic spine revealed metastatic cancer at T6, T8, and T11. A needle biopsy on February 22, 2004, confirmed metastatic cancer of the spine. A least three physicians advised Young that the cancer was not treatable. Young perished a few days later. His estate, by and through his personal representative, alleges Dr. Trover misread the June 8, 2003, June 21, 2003, February 10, 2004 and February 18, 2004 radiological films, and that Dr. Trover's misinterpretations affected Young's treatment plan.
Melissa Kelso underwent a laparoscopic cholecystectomy — gallbladder surgery — on October 16, 2003. She was discharged the next day, but readmitted to the Medical Center on October 18, 2003 complaining of upper abdominal discomfort and nausea. Dr. Trover performed an abdominal ultrasound that revealed a small 1.5 cm pocket of fluid in the gallbladder fossa. That same day, Dr. Trover conducted an abdominal scan and found "air fluid levels in the right side of the abdomen indicative of a localized ileus."
The next day, Dr. Trover interpreted a CT scan of Kelso's abdomen, finding "[t]here may be a small amount of fluid collection present in the gallbladder fossa." In follow-up CTs to the abdomen and pelvis on October 21, 2003, Dr. Trover noted: "Imaging of the liver demonstrates again a small fluid pocket in the gallbladder fossa." A CT taken on October 23, 2003 also revealed fluid collection on the abdomen. Dr. Trover performed a nuclear-HIDA scan that same day which showed that "[t]here appears to be leakage that tracts to a pocket of fluid in the left upper quadrant."
Dr. Trover placed a catheter and drained biliary fluid from Kelso's abdominal area. Kelso then underwent an additional surgery to repair the bile duct perforation that had occurred during her laparoscopic cholecystectomy. Kelso was discharged home on November 4, 2003.
On November 10, 2003, Kelso was again readmitted to the Medical Center and additional CT scans ordered. On November 11, 2003, Dr. Trover interpreted CTs of Kelso's chest, abdomen, and pelvis. While the chest CT showed normal lungs and pleural spaces, the abdomen and pelvis scans showed:
(emphasis added). Kelso's attending physician prescribed antibiotics and analgesics, and discharged her home on November 12, 2003. Except for the removal of a stent on December 9, 2003, Kelso has not received any further treatment relating to the removal of her gallbladder.
It is unclear which radiological scans Kelso is claiming Dr. Trover interpreted negligently. Kelso states in her brief that the "10 month delay caused by Dr. Trover's misinterpretation of her November 11, 2003 Chest CT, in recognizing that she had a possible abcess [sic] altered her treatment plan and outcome." (Kelso's Appellant's Brief, p.12). Dr. Allen Powell performed a re-read of the November 2003 chest CT on September 10, 2004. His impressions were: negative CT of the chest and free peritoneal air with possible perihepatic abscess. Nonetheless, Dr. Powell indicated he agreed with Dr. Trover's radiological report.
It also appears, in response to discovery requests and certainly in her deposition,
Wanda Zachary had a history of multiple nodular goiters. She called the Trover Clinic in December 2003 worried about a knot on her thyroid. A thyroid ultrasound was ordered and interpreted by another radiologist as two solid nodules in the right lobe of the thyroid and several nodules in the left lobe which the radiologist noted to be but very slightly larger when compared to an ultrasound from April 2002. In light of this reading, Zachary testified in her deposition that her physician informed her that she had cancer.
On January 14, 2004, Zachary had a thyroid uptake scan due to swelling of her neck and head. Dr. Trover read the scan and noted normal uptake values and "homogeneous uptake through the gland." Based on Dr. Trover's report, Zachary's physician allegedly told her she did not have cancer.
Dr. Craig Lundquist conducted a re-read of the January 2004 thyroid scan two months later on March 16, 2004. He found a large cold nodule in the left lobe of the thyroid, a questionable hot nodule in the left lobe, and a possible cold nodule in the right lobe. Dr. Lundquist indicated that his disagreement with Dr. Trover was not clinically significant. A repeat nuclear scan was done that same day. Zachary was again informed by her physician that she might have cancer.
Following this test, a needle biopsy was performed and fluid from the knot was withdrawn and analyzed. The nodule was found to be a benign cyst. Zachary's physician confirmed she did not have cancer.
Zachary claims Dr. Trover's misinterpretation of her scan resulted in a several month delay in appropriate treatment and caused her to suffer physical pain and mental anguish.
On January 14, 2004, Richard Humphrey presented to the Trover Clinic with an "unsteady gait and `swimmy head.'" His primary care physician ordered a CT scan of Humphrey's head. Dr. Trover interpreted the scan, reporting: "This examination shows a large cystic lesion [tumor] in the left cerebellopontine angle seen to cause some mass effect upon the contents of the fourth ventricle. The examination is otherwise unremarkable."
A few days later, Humphrey returned to his primary care physician, who noted: "CT of head obtained revealed a large cyst at the cerebella pontine angle with a mass effect on the fourth ventricle. His daughter is going to take him to the VA in Evansville for further evaluation. Patient is provided with CT report."
Dr. Allen Powell re-read the CT scan on April 1, 2004. His impression was a large fluid attenuation collection in the left cerebellopontine angle cistern with the possibility of encephalomalacia due to cerebellar infarct and cystic neoplasm. Dr. Powell recommended a MRI of the brain.
Humphrey underwent a follow-up MRI on April 14, 2004. Dr. Powell interpreted the MRI the next day, also finding a large cystic collection in the left cerebellopontine angle.
Humphrey admitted in deposition that his family physician, relying on Dr. Trover's interpretation, informed him that the CT scan revealed a tumor in his head. He also testified that he sought additional treatment at MultiCare Specialties in Owensboro. The physician there confirmed that Humphrey had an inoperable growth in his head that was pushing on his brain. Fortunately, the tumor did not cause Humphrey pain or problems. Humphrey subsequently passed away from causes unrelated to his claims in this case. His estate claims Dr. Trover misread Humphrey's January 14, 2004 brain CT scan and failed to inform Humphrey that he "had a tumor up here in [his] head." (Humphrey Deposition, p.24).
Phillip Cruce has a history of esophageal stricture (narrowing) of his esophagus caused by severe gastroesophageal reflux disease. A 2001 biopsy of his esophagus was positive for dysplasia and additional biopsies in 2003 revealed the dysplasia had worsened.
On September 29, 2003, physicians at the Medical Center performed an esophagectomy to remove the pre-cancerous portion of Cruce's esophagus. Post-operatively, Cruce was oxygenated through a nasogastric (NG) tube. He tolerated the surgery well. However, the next morning, Cruce developed respiratory distress. A chest x-ray revealed adult respiratory distress syndrome (ARDS), requiring extended hospitalization, long-term ventilation, sedation, and eventually, a tracheostomy. On October 23, 2003, Cruce was released from the Medical Center and transferred to a rehabilitation center.
Over the course of Cruce's twenty-three day stay at the Medical Center, Dr. Trover interpreted nineteen portable chest x-rays of Cruce. In his brief to this Court,
(Cruce's Appellant's Brief, p. 11).
In August 2003, Brenda Korb received her annual mammogram at the Trover Clinic. Dr. Trover interpreted the films. He observed a small cluster of calcification in the right breast, unchanged compared to exams from 2002, and a nodule deep in the left breast, also unchanged. Dr. Trover classified the results of the exam as BI-RADS
Dr. Nancy Pile re-read the August 2003 mammogram on April 6, 2004, during which she compared the 2003 x-ray films to films from 1997. Dr. Pile observed an equal density irregular mass with indistinct margins in the lower outer quadrant of the left breast. She, however, classified this as a new finding and classified the results as BI-RADS Mammography Assessment Category 0-Need Additional Imaging and/or Prior Mammograms for Comparison, recommending magnification views and an ultrasound.
Ultrasound and magnification compression views of the left breast were dictated by Dr. Arthur E. Levy on May 17, 2004. Dr. Levy's interpretation of the ultrasound indicated benign-appearing areas in the left breast, suggesting an intramammary lymph node. Reading the magnification compression views in conjunction with the ultrasound, Dr Levy confirmed an intramammary lymph node, and classified his findings as BI-RADS Mammography Assessment Category 3-Probably Benign, with a suggested follow-up of four to six months to determine stability.
On July 14, 2004, Korb presented to the Trover Clinic and Dr. Mohan K. Rao for a follow-up of the May 17, 2004, mammogram and ultrasound. Dr. Rao interpreted the mammogram as showing a single area on the left side that was slightly more prominent than on the previous examination. The ultrasound indicated a targetoid area, likely significant for an intramammary lymph node. Assessing probable benign breast disease, Dr. Rao recommended that no biopsy be performed and a routine mammogram examination be conducted during Korb's regularly scheduled annual mammogram screening.
On August 11, 2004, Korb returned for her annual mammography screening, which was interpreted by Dr. Levy. Dr. Levy compared the new films with those from the prior year and noted that the lesion posteriorly in the mid-outer portion of the left breast remained stable in the one-year interval between films. He recommended BI-RADS Category 3-Probably Benign, with a short-term follow-up in four to six months. However, the treating physician, Dr. Rao, decided that a mammotome biopsy was now warranted to remove the nodule. The nodule was found to be carcinogenic (cancer) after it was removed.
A proposed class action lawsuit was filed on March 17, 2004. Appellants joined the proposed class action as plaintiffs between March 2004 and March 2005. The circuit court ultimately denied class certification, and the forty-nine individual cases were ordered separated with joint discovery permitted.
Appellees first moved for summary judgment in 2005 citing a lack of lay and expert proof to support the asserted claims. Appellants objected, claiming inadequate time to prepare and declaring the motions premature because discovery was not yet complete. Between 2005 and 2007, over a hundred depositions were taken. Appellees renewed their summary judgment motions in 2007. The circuit court held the motions in abeyance to allow Appellants time to complete discovery on the issue of fraud. Each Appellant ultimately filed an eighth amended complaint alleging fraud with more specificity.
In the meantime, logistics discussions were had as to the procedure for the selection of cases for trial. The circuit court imposed a lottery system, whereby each party would designate five cases they would like to be tried and, from those cases, the Court would select which case would come to trial first. The circuit court further ordered: "within 60 days of the Court selecting the case to be tried first, the plaintiffs shall . . . give CR
In February 2009, Appellees moved to dismiss for lack of prosecution and renewed their summary judgment motions, arguing Appellants had yet to produce evidence, including expert testimony, to support their claims. In response, Appellants argued that the motions were premature as the nature of each case required extensive discovery and there was no scheduling order. Appellants also filed in each case an expert affidavit in which the affiant opined Dr. Trover and the Foundation each violated the requisite standard of care. The senior judge assigned to the cases left the bench without issuing a ruling.
Appellees re-submitted their motions for summary judgment in February 2013, again arguing Appellants had failed to produce any evidence of a compensable injury or that Dr. Trover or the Foundation caused any alleged injury, and arguing that Appellants had failed to produce a causation expert. A hearing was held on March 22, 2013, at which the circuit court granted Appellants' verbal motions for leave to file supplemental materials in opposition; however, no additional materials were filed. The circuit court ultimately entered orders granting summary judgment in favor of Dr. Trover and the Foundation.
"The standard of review on appeal of summary judgment is whether the trial court correctly found there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Carter v. Smith, 366 S.W.3d 414, 419 (Ky. 2012). Under this standard, an action may be terminated "when no questions of material fact exist or when only one reasonable conclusion can be reached[.]" Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 916 (Ky. 2013). Summary judgment involves only legal questions and the existence, or non-existence, of material facts are considered. Stathers v. Garrard County Bd. of Educ., 405 S.W.3d 473, 478 (Ky. App. 2012). Our review is de novo. Mitchell v. University of Kentucky, 366 S.W.3d 895, 898 (Ky. 2012).
Before the trial court, "[t]he 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" evidence establishing a triable issue of material fact. Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001). That is, "[t]he party opposing a properly presented summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing the existence of a genuine issue of material fact for trial." City of Florence, Kentucky v. Chipman, 38 S.W.3d 387, 390 (Ky. 2001).
A trial court adjudicates the entirety of a claim by resolving all its elements in favor of the party asserting it, or by resolving at least one element in favor of the party opposing it. Summary adjudication in favor of a defendant is justified when the defendant eliminates all genuine issues regarding all material facts relating to one or more elements of the claim against him and he convinces the court that, under the uncontroverted facts, he is entitled to judgment as a matter of law. That is the status of the various appeals before us.
In these cases, the trial court determined that, as to at least one element of every claim of every Appellant, there were no genuine issues of material fact and that, under the uncontroverted facts, the Appellees were entitled to judgment as a matter of law. On appeal, it is Appellants' burden to demonstrate to this Court that the trial court's determination was erroneous or, at the very least, premature.
Appellants present three general arguments for our consideration. Those arguments are: (1) the entry of summary judgment on their medical negligence claims was both improper in light of the ample medical evidence in the record creating a genuine issue of material fact and premature; (2) sufficient evidence of outrage/IIED and negligent infliction of emotional distress was presented to warrant a denial of summary judgment; and (3) sufficient evidence of fraud was presented to warrant a denial of summary judgment.
Appellants offer two grounds for reversing the summary judgment on their claims of medical negligence against Dr. Trover. They contend: (1) that they submitted sufficient expert medical evidence to create genuine issues of material fact as to their claims; and, alternatively, (2) that entry of judgment was premature, having occurred too soon in the litigation, depriving Appellants of a proper opportunity for discovery of sufficient evidence to create genuine issues as to the claim. Neither argument is persuasive.
A common law negligence claim requires proof of: (1) a duty owed by the defendant to the plaintiff, (2) breach of that duty, (3) injury to the plaintiff, and (4) legal causation between the defendant's breach and the plaintiff's injury. Wright v. House of Imports, Inc., 381 S.W.3d 209, 213 (Ky. 2012). Due to the complexity of medical procedures, proof of these elements, almost always, must take the form of expert testimony. Johnson v. Vaughn, 370 S.W.2d 591, 596 (Ky. 1963) (explaining a physician's negligence must generally be established by expert medical testimony); Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676, 680-81 (Ky. 2005). That is, only expert testimony can establish for the jury "the applicable medical standard of care, any breach of that standard, and the resulting injury." Blankenship v. Collier, 302 S.W.3d 665, 675 (Ky. 2010).
Experience shows us that a tort defendant moving for summary judgment does not challenge the claim as a whole. Rather, the attack is more precise; the target of the summary judgment motion is an individual element of the claim that the defendant believes to be weak. To survive a defendant's summary judgment motion then, a plaintiff must respond to the attack and defend the targeted element. Fortifying an element that has not been targeted is meaningless. But that is what occurred here.
In the circuit court, Appellees moved for summary judgment arguing that Appellants had failed to produce evidence sufficient to create a genuine issue of material fact as to the third and fourth elements of a medical negligence claim — injury and causation. To defeat Appellees' motions, the Appellants were required to produce evidence of both elements. While proof of injury may be demonstrated, at least in part, by medical records or even lay testimony, proof of a causal link between a physician's breach of a standard of care and a patient's injury — i.e., causation — must be established by expert testimony. Andrew v. Begley, 203 S.W.3d 165, 170 (Ky. App. 2006) (explaining a "plaintiff in a medical negligence case is required to present expert testimony that establishes . . . the alleged negligence proximately caused the injury").
Appellants presented no expert testimony of causation. Instead, they responded with medical records of Dr. Trover's radiological film reads and re-reads by others, and an affidavit from their own medical expert stating "that `at least one' of the films read by Dr. Trover was interpreted in a manner that was below the standard of care." (R. 1299).
The circuit court recognized this evidence was insufficient to prevent summary judgment in favor of Appellees, stating the Appellants "failed to produce any evidence, medical or otherwise, that [Dr. Trover's presumable breach of the standard of care] . . . caused any . . . injury . . . ." (R. 1299).
These appeals to this Court were the Appellants' opportunity to direct us to evidence in these seven records that demonstrates they did, in fact, put forth proof of causation. They failed to do that. In their briefs, identical in each of the seven cases, Appellants again rely only on an "affidavit that the Appellees have had for years from D. Ronald Washburn that indicates that Dr. Trover breached the standard of care." (Appellants'
What we have said in our review of previous cases with similar circumstances is equally applicable to these seven cases. We said:
Andrew, 203 S.W.3d at 170, 173.
Notwithstanding the Appellants' failure to identify their proof of causation, they argue that Appellees did not meet their burden before the circuit court of proving the negative existence of a material issue of fact regarding causation and, absent such proof, Appellants were not required to produce positive proof of causation. We agree that "[t]he moving party has the initial burden of showing that no genuine issue of a material fact exists [and i]f the moving party does not sustain his burden . . . then the summary judgment should not be granted." Roberts v. Davis, 422 S.W.2d 890, 894 (Ky. 1967). However, that was not the situation in any of the seven cases before us. Here, in each of the cases, this burden was sustained.
In their briefs before this Court, Appellees reference the distinct and specific factual support for their summary judgment motions in each individual case. Furthermore, we have examined the record of those separate motions. The motions were supported by citation to the Appellants' various depositions in which they cannot answer questions probing how Dr. Trover's conduct caused the harm they perceived. The Appellees' motions for summary judgment also cite to the various complaints and amended complaints, where even allegations of causation are lacking. We believe these motions satisfied the Appellees' burden under CR 56.03. The motions thus supported by the record were sufficient to shift the burden to the Appellants to come forward with proof of causation.
"Under the present practice of Kentucky courts, the movant must convince the court, by the evidence of record, of the nonexistence of an issue of material fact." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky. 1991). The circuit court adjudged the Appellees' efforts as convincing. We are convinced as well. Unless we find merit in the Appellants' second ground for reversing — premature entry of summary judgment — we must affirm the circuit court's summary judgment on the medical negligence claim.
Appellants argue summary judgment was premature based on the protocol in place for the disclosure of expert witness. They claim that, as part of the lottery system instituted by the circuit court, it was understood by all parties that, once a particular case was selected for trial, a scheduling order would be entered for the exchange of expert disclosures in that case. In other words, until an individual case was selected for trial and a scheduling order imposed, Appellants were not required to disclose expert opinions to support their medical-negligence claims. This is a straw-man argument.
While the record indicates that a protocol was established whereby disclosure of experts would take place when each individual case was selected for trial, no order in any of these records prohibited any party from moving for summary judgment. Therefore, the issue is controlled by CR 56 governing summary judgments.
The specific rule for summary judgment motions by a defendant states that "a party against whom a claim . . . is asserted . . . may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof." CR 56.02 (emphasis added). The rule does not require the elapse of a discovery period delineated by a scheduling order, or even that discovery actually have been completed, so long as the parties were given "ample opportunity to complete discovery." Suter v. Mazyck, 226 S.W.3d 837, 841 (Ky. App. 2007) (emphasis added).
Appellants need not have provided every discoverable bit of proof at their disposal, but they were required to "show [their] hand, or enough of it to defeat the motion, before trial on the merits." Barton v. Gas Service Co., 423 S.W.2d 902, 905 (Ky. 1968). That is, "it becomes incumbent upon the adverse party to counter [the movant's] evidentiary showing by some form of evidentiary material reflecting that there is a genuine issue pertaining to a material fact." Neal v. Welker, 426 S.W.2d 476, 479 (Ky. 1968) (citation omitted). Appellants made no showing as to causation whatsoever. That leaves the question of whether Appellants had ample opportunity to complete discovery.
Here, the record reflects that the latest motion for summary judgment was filed on February 7, 2013, and the matter went before the circuit court for a hearing on March 22, 2013. By that time the cases had been pending for more than eight years, and Appellants had been granted multiple extensions to complete discovery. From the date of the latest-filed motion to the date of the hearing (thirty-nine days), Appellants were on notice that they must proffer some evidence of causation and injury to counter the evidence supplied by the Appellees. We must assume that this time was sufficient because Appellants did not request a delay of the hearing for additional time to gather the necessary evidence.
Furthermore, as the circuit court noted in each of the seven cases, the Appellants "made affirmative representations that expert witnesses would be used to establish . . . causation." (R. 1300).
For these reasons, we must affirm the circuit court's grant of summary judgment in each of the seven cases as to the claims of medical negligence against Dr. Trover.
Appellees sought and obtained summary judgment as to the claim of each of the Appellants for outrage/IIED and negligent infliction of emotional distress. To a certain degree, the circuit court's summary judgment failed to distinguish between the intentional/reckless tort (outrage/IIED) and the negligence tort (negligent infliction of emotional distress). However, an element common to both causes of action is the type of injury — emotional distress. Because it is dispositive as to both claims, our analysis focuses on that common element.
The circuit court ruled, as to each Appellant, that he or she
(R. 1301).
In their attempt to reverse the circuit court's ruling on emotional distress, Appellants first erect another straw man that they proceed to knock down. They assert that emotional distress is a compensable injury even in the absence of any physical contact. We agree. In Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012), our Supreme Court rejected Kentucky's prior "impact rule" which formerly prohibited any claim "for fright, shock [,] or mental anguish which is unaccompanied by physical contact or injury." Deutsch v. Shein, 597 S.W.2d 141, 145-46 (Ky. 1980), abrogated by Osborne, 399 S.W.3d at 15-17. Noting that the overwhelming majority of jurisdictions had abandoned the impact rule, the Supreme Court expressly followed suit. Osborne, 399 S.W.3d at 17.
However, our agreement with this contention does not give cause for reversal. When it comes to proof of emotional distress, Osborne also said:
Id. at 6.
We look to the Appellants' briefs for direction to the record where they presented such proof of emotional injury, but the briefs tell us nothing on this point. Rather, the briefs focus on Dr. Trover's conduct; Appellants claim "[t]his is a case study of outrageous behavior[,]" but fail entirely to tell us what emotional injury Appellants experienced as a direct and proximate result of that behavior.
Missing the mark, Appellants list specific examples of the doctor's conduct such as misreading x-rays, allowing other employees to read x-rays he was required to read, failing to obtain proper medical histories or the patient's informed consent in certain cases, and striking an employee. Not only do Appellants claim this conduct is sufficient in and of itself to sustain their IIED/outrage and negligent infliction of emotional distress claims against Dr. Trover, they argue it is also sufficient evidence of their claims against the Foundation because of its corporate knowledge of such behavior. To the extent the record supports these statements, the Appellants have demonstrated genuine issues of material fact sufficient to create a jury question as to whether Dr. Trover engaged in outrageous conduct. Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 788 (Ky. 2004) overruled on other grounds by Toler v. Sud-Chemie, Inc., 458 S.W.3d 276, 287 (Ky. 2014) (finding "conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality"). However, that element of the claim is not disputed here and is not the subject of our review.
For purposes of this opinion, we will presume the doctor's outrageous conduct to satisfy that element of the cause of action and survive summary judgment. But evidence of two elements of the claim is missing: "a causal connection between the [outrageous] conduct and the emotional distress; and [that] the emotional distress [is] severe"? Id. We will focus first on the evidence of severe emotional distress.
"[T]o meet the standard of severe emotional distress the injured party must suffer distress that is `substantially more than mere sorrow.'" Benningfield v. Pettit Envt'l Inc., 183 S.W.3d 567, 572 (Ky. App. 2005) (quoting Gilbert v. Barkes, 987 S.W.2d 772, 777 (Ky. 1999)).
Osborne, 399 S.W.3d at 17-18 (footnotes omitted). Simply put, "not every upset plaintiff can recover for emotional distress." Zurich Ins. Co. v. Mitchell, 712 S.W.2d 340, 343 (Ky. 1986). This is particularly so in today's modern, razor-sharp society. Osborne, 399 S.W.3d at 17 (astutely observing that "emotional tranquility is rarely attained and . . . some degree of emotional harm is an unfortunate reality of living in a modern society").
Appellants have not provided, and we have not found in the record, any expert support for their claims of suffering severe emotional distress. Id. Even if there were such evidence here, the Appellants fail to establish, by way of medical evidence or otherwise, any causal connection between Dr. Trover's conduct or that of the Foundation and the claimed emotional distress felt. Without expert medical testimony for both, the claims necessarily fail. Osborne, 399 S.W.3d at 18.
Some Appellants — Stanley, Humphrey, Young, and Cruce — actually have claimed no emotional distress beyond the bare allegations of their complaints, but that will not save their claims against a motion for summary judgment. Continental Cas. Co. v. Belknap Hardware & Mfg. Co., 281 S.W.2d 914, 916 (Ky. 1955) (the party opposing summary judgment must do more than rest upon the allegations in his complaint). Stanley testified by way of deposition that, after the initial surgery, she continued to have pain in her neck. She made no mention of any emotional distress. Similarly, neither Humphrey nor Cruce testified to suffering any emotional effects resulting from Dr. Trover's alleged misinterpretations of their radiological studies. They have failed to come forward with any affirmative evidence of emotional distress to defeat summary judgment on these claims. Chipman, 38 S.W.3d at 390 (party opposing summary judgment must present at least some affirmative evidence establishing the existence of a genuine issue of material fact to defeat it).
Furthermore, the emotional distress complained of by the remaining Appellants cannot be considered "severe" by the standard set forth by the Supreme Court, previously described, even when we factor in the presumption favoring the party opposing summary judgment.
In deposition, Kelso stated her claim is based on emotional pain stemming from Dr. Trover's conduct, but fails to describe her emotional distress beyond the mere allegation in her complaint. This is not enough. When a party has established the non-existence of a material fact, "the opposing party has an obligation to do something more than rely upon the allegations of his pleading." Continental Cas. Co., 281 S.W.2d at 916.
Korb testified she suffers from radiating physical pain in her left breast and arm and that the breast surgery caused her embarrassment and generally interferes with her sexual relations with her husband. Physical pain and interference with consortium are a different category of injury, but not the same category as emotional distress. And embarrassment falls far short of the severity of the emotional distress necessary to support the claim of outrage/IIED. Osborne, 399 S.W.3d at 17 n.10 (citing Smith v. Amedisys Inc., 298 F.3d 434, 450 (5th Cir. 2002) (rejecting plaintiff who felt angry, belittled, embarrassed, depressed, disgusted, humiliated, horrified, incompetent, mad, very offended, and repulsed was not sufficient for severe emotional harm)).
Without describing how her emotional distress manifests itself in her daily life, Zachary testified merely that she "believes that she suffered psychological and mental anguish due to the delay in recognition of her condition caused by Dr. Trover's misdiagnosis of her scan." However, a simple "belief" one has suffered injury is not sufficient to create an issue of material fact. Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990). Similarly, Zachary's fear of cancer, while certainly alarming and stressful, is practically endemic in today's culture. Osborne, 399 S.W.3d at 17 n.59 ("[I]ndividuals are well equipped to deal with the emotional stress generally experienced through day-to-day living."). Zachary fails to say how Dr. Trover's conduct exacerbated her fear. Id. at 6.
None of the Appellants sought any treatment or counseling, or appreciably altered their life as a result of the distress they claim. Logically, a genuine emotional distress injury is one that necessarily requires significant treatment. If, giving the Appellants every benefit of the doubt, any of them suffered distress, it must have been of such limited duration and so manageable that it had passed without the need for any professional treatment; that makes their claim disqualifying. Id. at 17 n.59 ("[R]ecovery is only permitted when the harm experienced reaches a level where a reasonable person would no longer be expected to adequately manage it. Many factors may be considered, including . . . the duration of the harm[.]").
There is simply no evidence that any of these Appellants was unable to endure the mental stress of living with Dr. Trover's interpretations of the radiological films, or that it either significantly affected their everyday life or required significant treatment. Id. at 17-18.
Most specifically, none of this evidence was in the form of expert medical or scientific proof required to prove the claim. Osborne, 399 S.W.3d at 6.
In sum, we find Appellants have failed to put forth affirmative evidence of severe emotional distress, supported by expert medical or scientific proof, caused by Dr. Trover's or the Foundation's "outrageous" behavior. In light of this shortcoming, the circuit court properly entered summary judgment on Appellants' outrage/IIED and negligent infliction of emotional distress claims. We again affirm.
Finally, Appellants argue they have effectively pleaded and adequately established by proof the following theories justifying recovery of damages against Dr. Trover and the Foundation: (1) lack of informed consent, (2) direct fraud, and (3) constructive fraud. We disagree.
First, our highest court long ago rejected the idea that failure to obtain informed consent should be treated differently than other failures of medical responsibilities, i.e., as a separate tort in and of itself. Holton v. Pfingst, 534 S.W.2d 786, 788 (Ky. 1975). Rather, Kentucky courts "regard the failure to disclose a mere risk of treatment as involving a collateral matter . . . and so have treated the question as one of negligent malpractice only, which brings into question professional standards of conduct." Id. at 788 (quoting W. Prosser, Handbook of the Law of Torts, 106 (4th ed. 1971)). "[T]he action, regardless of its form, is in reality one for negligence in failing to conform to a proper professional standard." Id.
Perhaps the most direct explanation of the role played by lack-of-informed-consent issues in our jurisprudence was offered by Justice Leibson.
Keel v. St. Elizabeth Med. Ctr., 842 S.W.2d 860, 862-63 (Ky. 1992) (Leibson, J., concurring); see also Fraser v. Miller, 427 S.W.3d 182, 187 (Ky. 2014) (Keller, J., concurring) ("KRS 304.40-320 does not require a physician to obtain informed consent, it simply states when informed consent shall be deemed to have been obtained"). In other words, the claim of medical negligence, and our earlier analysis of that claim and the judgment dismissing it, subsumes the claim that Dr. Trover failed to obtain informed consent.
Next, we consider the claim of direct fraud. It is difficult to tell whether the Appellants' claim is one for fraudulent misrepresentation or fraud by omission. We shall analyze both.
Fraud by misrepresentation "requires proof that: (1) the defendant made a material representation to the plaintiff; (2) the representation was false; (3) the defendant knew the representation to be false or made it with reckless disregard for its truth or falsity; (4) the defendant intended to induce the plaintiff to act upon the misrepresentation; (5) the plaintiff reasonably relied upon the misrepresentation; and (6) the misrepresentation caused injury to the plaintiff." Giddings & Lewis, Inc. v. Industrial Risk Insurers, 348 S.W.3d 729, 747 (Ky. 2011).
For purposes of our analysis, we will presume Appellees made material false representations; that takes care of the first and second elements of the cause of action. But the circuit court found, and we agree, that Appellants produced no affirmative evidence as to the third or fourth elements — that Dr. Trover or the Foundation made these representations with knowledge of their falsity (the third element), and with the intent to induce the Appellants to act (the fourth element). We have examined the respective records in these cases and can find no evidence to support these elements of the claim of fraud. The Appellants' briefs direct us to no such proof. Failure to present any proof of these two elements requires that we affirm the summary judgments.
Additionally, Appellants have not identified any injury caused by either Appellees' misrepresentation (the sixth element). "[F]raud is actionable only if it results in damage to the complainant[.]" Gersh v. Bowman, 239 S.W.3d 567, 573 (Ky. App. 2007) (citation omitted). Since our Supreme Court has chosen not to embrace lost chance for recovery or a better medical result as a compensable injury, Kemper v. Gordon, 272 S.W.3d 146, 152-53 (Ky. 2008), Appellants are left only with severe emotional distress as a compensable injury. Because our previous analysis convinces us that the circuit court correctly found no severe emotional distress in any of these cases, we must conclude that Appellants presented no evidence of injury resulting from any representation by the Appellees.
To the extent the Appellants are arguing a claim of fraud by omission, it too must fail.
Giddings & Lewis, Inc., 348 S.W.3d at 747.
Appellants focus on the first element, duty. They argue Dr. Trover had a duty to disclose that his medical license had been suspended by the Kentucky Board of Medical Licensure. Assuming such a duty was imposed upon Dr. Trover, it would not apply to this case. The emergency order temporarily suspending Dr. Trover's license was entered in 2005, well after Dr. Trover's alleged misreading of the Appellants' various films between 2000 and 2004.
Appellants also claim the Foundation failed in its duty to inform them that, while they were under treatment, Dr. Trover was in need of supervision or was actually being supervised because of behavioral problems. As a corollary, Appellants claim the Foundation failed to disclose that staff at the Foundation had expressed concerns to the administration regarding Dr. Trover's substandard medical practices. We do not agree that these facts require our creation of a duty to disclose information. Again, for many, if not all, of the Appellants, the timing of these suspicions does not fit their claims. But there is another reason we agree with the circuit court that there is no duty here.
The existence of a duty is a question of law to be decided by the court. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003). The circuit court found no legal duty on behalf of a doctor or a hospital to disclose behavioral and personal issues of a treating physician to patients. Our review of the law confirms this. Whatever duty Appellants might imagine in this regard would be unworkable. The likely result of recognizing such a duty — i.e., a duty to inform patients of unproven complaints against doctors — is to create more liability than it avoids. We see nothing in our jurisprudence that would encourage or justify requiring the breach of one duty in order to satisfy another. The circuit court was correct in finding no such duty exists.
And, once again, we turn to the absence of an injury in these cases — the fourth element of the cause of action for fraud by omission. Fraud "without damage is, of course, not actionable." Curd v. Bethell, 248 Ky. 127, 58 S.W.2d 261, 263 (1932). We will say nothing more than that we are firm in our conviction that Appellants suffered no actionable injury.
There was insufficient evidence in the records of each of the Appellants to create a genuine issue of material fact as to the various elements of their claims for direct fraud, whether by misrepresentation or omission. Therefore, the summary judgment as to such claims must be affirmed.
This leaves constructive fraud. Constructive fraud, unlike direct fraud, "arises through some breach of a legal duty which, irrespective of moral guilt, the law would pronounce fraudulent because of its tendency to deceive others, to violate confidence, or to injure public interests." Coomer v. Phelps, 172 S.W.3d 389, 393 (Ky. 2005) (quoting Wood v. Kirby, 566 S.W.2d 751, 755 (Ky. 1978)). "Constructive fraud may be found merely from the relation of the parties to a transaction or from circumstances and surroundings under which it takes place." Epstein v. United States, 174 F.2d 754, 766 (6th Cir. 1949). The doctrine of constructive fraud is rooted in equity. See Pickrell & Craig Co. v. Bollinger-Babbage Co., 204 Ky. 314, 264 S.W. 737, 740 (1924).
Appellants claim they relied on the Appellees and their expertise in assuring that they would receive the care of a competent physician. They assert that, had they known the issues relative to Dr. Trover's practice that were eventually uncovered in the Foundation's investigations, they would not have agreed to be a patient of Dr. Trover or the Foundation.
Again, there is the timing problem for some, if not all, of the Appellants; however and additionally, the duty analysis undertaken above with regard to fraud by omission applies equally here. We cannot find error in the circuit court's ruling that there is no duty to disclose unproven
And as a category of claims, all Appellants' fraud causes of action lack evidentiary support sufficient to create a genuine issue of material fact as to at least one element of the claim. Therefore, we cannot find that the circuit court erred as a matter of law in concluding that Dr. Trover and the Foundation were entitled to summary judgment.
For the foregoing reasons, we affirm the orders of the Hopkins Circuit Court granting summary judgment in favor of Dr. Trover and Baptist Health Madisonville f/k/a Trover Clinic Foundation as to each of the claims of each of the Appellants herein.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
