NOT TO BE PUBLISHED
OPINION
ACREE, Chief Judge.
Appellant, Sherry Duvall, in her capacity as Personal Representative and Administratrix of the Estate of Gary Brasher1 appeals from the August 18, 2008 and September 16, 2008 orders of the Hopkins Circuit Court dismissing by means of summary judgment his medical-negligence and fraud actions against Dr. Philip Trover. Brasher also appeals from orders dismissing by means of summary judgment his medical negligence, negligent credentialing, and fraud actions against Baptist Health Madisonville f/k/a Trover Clinic Foundation. The circuit court determined Brasher did not file his complaint against Dr. Trover and the Foundation within the applicable statute of limitation, and found no evidence of fraud or fraudulent concealment by either Appellee that prevented Brasher from discovering the negligent or otherwise wrongful acts of Dr. Trover or the Foundation. We affirm.
This matter is one of more than four dozen cases 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.
The principal opinion for the group that includes this case is Brown v. Commonwealth, No. 2012-CA-001880-MR, ___ WL ___ (Ky. App. Jan. 8, 2016), rendered this day.2 The critical issues in this case are the same as those which have been considered and decided in Brown, supra.3 So much of that opinion as is dispositive of issues raised on this appeal, except with regard to the claim of medical negligence, is incorporated herein by reference. Unless otherwise denoted in this case, for the reasons stated in Brown, the orders of the circuit court are affirmed.
We have carved out and will address separately Brasher's claims related to medical negligence, for this inquiry is fact specific and turns on the particular circumstances of this case.
Brasher had an extensive history of chronic degenerative back pain dating back to the 1980s, including diagnoses of muscle spasms, ruptured discs, vertebrae problems, nerve damage, spinal stenosis, shooting pain and limb numbness, disc bulging, bulging impinging on spinal fluid, nerve disease, degenerative disease of the spine, and recurrent sciatic pain. Brasher's first back surgery occurred in 1992 when he underwent a decompressive laminectomy, but his relief was temporary. In 1997, after neurological, orthopedic, and psychological consultations, Brasher was diagnosed with degenerative disc joint disease, chronic back and leg pain, and drug seeking behavior.
On May 6, 1999, Dr. Trover read an x-ray of Brasher's lumbar region and noted "spurring [and] rather extensive osteoarthritic change seen involving the facet joints from L3-4 through L5-S1." A few days later, on May 17, 1999, Dr. Coladonato examined Brasher and wrote in his notes that the patient did "not appear to have a surgical problem. . . ." (R. 45).
Nevertheless, an MRI was ordered and on December 17, 1999, Dr. Trover interpreted the scan, finding:
CT imaging of the cervical spine shows a normal appearing cervical spinal cord. There is no spinal canal stenosis. There is slight bulging seen of the C6-C7 disks. The exam is otherwise unremarkable.
(R. 525). The same scan was re-read by Dr. Ghorashi who found:
MRI of the cervical spine has been performed . . . . Spinal cord is normal. . . . There is minimal broad-based posterior bulge of the discoid complex at C5-C6 level with slight impression on the anterior aspect of the thecal sac. The neural foramina is probably normal bilaterally at that level. Disks and neural formina and spinal canal at other levels are all within normal limits. . . . Otherwise, essentially unremarkable MRI of cervical spine.4
(R. 525-26).
Brasher's back pain persisted and, beginning in the summer of 2000, he began seeing Dr. Naimoli for relief. (R. 49).5 We have no other indication of medical treatment until May 7, 2001, when he was first seen by Dr. Alexander for a possible brown recluse spider bite. (R. 47). On June 28, 2001, coincidentally to that treatment, Dr. Alexander authorized Dr. Naimoli to refer Brasher for an MRI. That MRI was read by Dr. Lundquist on July 6, 2001.
After noting that "[t]here are no prior examinations for comparison[,]" Dr. Lundquist recorded, among other things, that:
[t]here is a large disc bulge at the L4-L5 level . . . extending into both neural formina and impinging significantly on the thecal sac, as well as probably the exiting nerve roots bilaterally. No other significant disc bulges are seen.
(R. 48). What Dr. Ghorashi had read on the December 17, 1999 MRI as only a "slight impression on the anterior aspect of the thecal sac" had become "significant[]" in the span of about eighteen months. About two weeks later, on July 23, 2001, Dr. Periyanayagam treated Brasher again and noted in his chart that the patient "will be scheduled for surgery in the next few days wks." (R. 50).
Dr. Periyanayagam performed that surgery himself before September 18, 2001. On that date, Brasher returned to his regular physician, Dr. Dodds, who noted in his file that Brasher "has done a whole lot better" since surgery. (R. 51). A month later, however, Brasher was in pain again.
On October 18, 2001, Dr. Dodds saw Brasher and noted that, although his patient was "doing a good bit better after his back surgery," Brasher had been in greater pain after hearing a pop in his back while picking up his ten-year-old son. (R. 52). Dr. Dodds scheduled another MRI. (Id.).
On October 24, 2001. Dr. Trover read the MRI as follows:
There is degenerative signal and marked bulging seen of both the L4-5 and the L5-S1 disks. The L4-5 disk shows marked bulging far laterally seen to impinge significantly upon the thecal sac in the lateral recess and upon the intervertabral foramen here. The L5-S1 disk shows prominent bulging and I think herniating anteriorly and centrally extending slightly towards the right side. The exam is otherwise unremarkable.
(R. 53). Apparently based on Dr. Trover's read of the MRI, another surgery was scheduled. Shortly thereafter,6 "Mr. Brasher had another back surgery by Dr. Dominguez [but] he is still having a great deal of pain all the time." (R. 54).
Brasher continued to experience significant back pain post-surgery. He testified in deposition that he "isn't fixed" and is "hurting as much as he ever did." (Brasher Depo., p. 75:16-21).
After learning that a class action lawsuit had been brought against Dr. Trover and the Foundation, Brasher joined the proposed action as a plaintiff on January 21, 2005.7 Brasher's medical negligence claim is not specific. In fact, it mimics verbatim the general language used in all the various plaintiffs' complaints. Brasher gives no facts detailing how Dr. Trover or the Foundation breached any duty. It simply says:
Dr. Trover breached his duty to the Plaintiff and deviated from the acceptable medical standard of care and was otherwise negligent in his treatment of Plaintiff by, among other things, intentionally and/or negligently failing to read and/or misreading x-rays, mammograms, CT scans or other types of radiological films.
(Eighth Amended Complaint ¶ 24).
Under questioning in his deposition, however, Brasher is clearer. There, he claims Dr. Trover negligently read his radiological scans on December 17, 1999, and on October 24, 2001, and that this resulted in his injury. (Brasher Depo., p 61:11-21). That testimony provided specific dates upon which the Appellees began building their argument to end the case.
Following prolonged motion practice, the circuit court dismissed Brasher's medical negligence claims, finding he failed to file it within the applicable one-year statute of limitations, KRS8 413.140. Brasher appealed.
Like so many of the other appellants in these related cases, Brasher asserts that he learned of Dr. Trover's alleged negligence from the March 2004 advertisement in the Madisonville Messenger9 and the ensuing media coverage of the story. He claims he had no knowledge of Dr. Trover's negligence until that moment and argues he filed his complaint well within one year of March 2004, as required by KRS 413.140 and, therefore, his complaint was timely filed.
The Appellees respond that Brasher was well aware, or should have been aware, of any alleged negligence as early as November 2001 when he underwent a third spinal surgery and yet continued to have back pain. However, "[a] mere suspicion of injury due to medically unexplainable pain . . . does not equate to discovery of medical negligence." Wiseman, 37 S.W.3d at 713. Brasher's mere suspicion that his medically unexplainable pain may have been the result of medical negligence was not sufficient to put him on notice that his legal rights may have been invaded.
We must consider the record in a light most favorable to Brasher. Doing so, we conclude he has alleged that Dr. Trover was liable for negligently interpreting his 1999 and 2001 MRIs. We will examine the time continuum as to each of those alleged acts of negligence to determine whether we can discern, as a matter of law, when the period of limitations began to run.
We focus on the events between the date of the first allegedly negligent act (December 17, 1999) and the date one year before the complaint was filed (January 21, 2004). If there is evidence that put Brasher on notice before January 21, 2004, of his claim based on Dr. Trover's December 17, 1999 alleged misread, besides unexplainable pain, it has not been brought to our attention.
Similarly, we know the alleged negligence of October 24, 2001, could not have been discovered before that date. As with the December 1999 conduct, we cannot determine, as a matter of law, that Brasher had been put on notice of this second allegedly negligent conduct before January 21, 2004. As with the December 1999 conduct, if there is evidence that put Brasher on notice of his claim between October 24, 2001, and January 21, 2004, other than unexplainable pain, it has not been brought to our attention.
However, reversal here "is unnecessary. An appellate court may affirm a trial court under an alternate theory not relied upon by the trial court." Commonwealth Natural Resources and Environmental Protection Cabinet v. Neace, 14 S.W.3d 15, 20 (Ky. 2000).
A negligence claim cannot move forward unless the plaintiff pleads and eventually presents evidence to support each of the four elements of a negligence claim, namely: (1) a duty and (2) a breach of that duty (3) that causes (4) a compensable injury. Without alleging and presenting some evidence to support each of these elements, courts will not compel a defendant to trial. We have scoured the record for allegation and evidence that would allow at least an inference to create a genuine issue regarding each of these elements and find it with regard to the first two elements, but find it lacking as to the others.
We start with duty, a legal determination. Where "facts are sufficient upon which to base a legal conclusion as to whether a duty exists, we must state that conclusion." Jenkins v. Best, 250 S.W.3d 680, 688 (Ky. App. 2007). Sufficient facts are present in this case to establish a duty that Dr. Trover owed to Brasher because a "physician's duty to a patient arises when, by his words or deeds, `he agrees to treat a patient, thus establishing a physician/patient relationship.'" Id. (quoting Noble v. Sartori, 799 S.W.2d 8, 9 (Ky. 1990)). We hold a duty existed in this case.
We next turn to breach. "[A] doctor engages to treat a patient with care, skill and knowledge, and is held accountable for negligence or carelessness or inefficiency, one or all." Johnson v. Vaughn, 370 S.W.2d 591, 595-96 (Ky. 1963). In its most general sense, that is what we call breach. In candor, when we look at the evidence of Dr. Trover's work in this case, we do not see an obvious breach of duty. Dr. Trover's read of an MRI in 1999 was re-read by Dr. Ghorashi who, to our understanding, saw the same thing Dr. Trover saw — a medical condition of Brasher's spine that was "slight" in December 1999, but that became "significant[]" by July 2001, such that an operation was necessary. Similarly, Dr. Trover's read of the October 2001 post-operative MRI led to additional corrective surgery in a matter of days.
However, our inability readily to see a breach is not disqualifying. Rather, it is the reason we require a plaintiff "to put forth expert medical testimony to establish . . . any breach that occurred . . . ." Blankenship v. Collier, 302 S.W.3d 665, 667 (Ky. 2010). This case lingered long in the circuit court, but we cannot say it reached the point at which Brasher was compelled or had the opportunity to present expert testimony of breach. Therefore, we will presume a breach occurred.
Presuming duty and breach, we come to causation. Again, we have difficulty seeing how Dr. Trover's conduct caused any harm to Brasher. But, also again, "in most medical negligence cases, proof of causation requires the testimony of an expert witness because the nature of the inquiry is such that jurors are not competent to draw their own conclusions from the evidence without the aid of such expert testimony." Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122, 124 (Ky. 1991). Therefore, we will presume for our analysis that Brasher would have found an expert to testify that Dr. Trover's conduct affected him in some way.
And that leads us to the final element of the cause of action — injury. We do not doubt that Brasher experienced back pain, oftentimes debilitating pain. The record shows he had experienced such pain for the last many years of his life. However, there is no allegation or evidence of any exacerbation of his pain related to Dr. Trover's reads of his MRIs. In fact, when asked in September 2005 how Dr. Trover's misreads caused him injury, he said: "I have lived almost nine years in torment, hurt, pain. And it's not — it isn't fair somebody can take your life and — no, sir, it's not fair." (Brasher Depo., pp. 74-75). That is, Brasher testified to having been in torment since 1996, fully three years before Dr. Trover read, or misread, the first MRI.
In its best light, and drawing all reasonable inferences from the proof in favor of Brasher, the record demonstrates that Brasher is claiming nothing more than a delay in diagnosis that prevented a better, quicker recovery. But Kentucky does not recognize 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).
Assuming Brasher's claim was timely, and presuming the first three elements of a medical negligence cause of action, Brasher cannot prove a compensable injury. Therefore, we believe it legally impossible for Brasher to prevail and Dr. Trover was entitled to have his case dismissed. Andrew v. Begley, 203 S.W.3d 165, 169 (Ky. App. 2006) ("summary judgment is proper when it appears that it would be impossible for the adverse party to produce evidence at trial warranting a judgment in its favor"). For this reason, we affirm the circuit court's summary judgment dismissing the medical negligence claim against Dr. Trover.
That leaves Brasher's medical negligence claim against the Foundation. It is a derivative claim that rises and falls on its medical-negligence claim against Dr. Trover.10 "Vicarious liability, sometimes referred to as the doctrine of respondeat superior, is not predicated upon a tortious act of the employer but upon the imputation to the employer of a tortious act of the employee[.]" Patterson v. Blair, 172 S.W.3d 361, 369 (Ky. 2005) (citation omitted). Accordingly, "[i]n circumstances under which the liability of the employer is purely derivative, he cannot be held liable while the employee at the same time is found not." Kiser v. Neumann Co. Contractors, Inc., 426 S.W.2d 935, 937 (Ky. 1967). Because our previous analysis convinces us there can be no finding of liability on Dr. Trover's part, the Foundation is also exonerated of any vicarious liability on Brasher's claim of medical negligence, and the circuit court was correct in so ruling.
We affirm the orders of the Hopkins Circuit Court granting summary judgment in favor of Dr. Trover and the Foundation as to Brasher's medical-negligence claims. We likewise affirm all other orders of the Hopkins Circuit Court granting summary judgment in favor of Dr. Trover and the Foundation on Brasher's other causes of action pursuant to the reasoning identified in Brown.
KRAMER, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN PART AND DISSENTS IN PART.
TAYLOR, Judge, concurring in part and dissenting in part.
I concur with the majority opinion except as concerns their disposition of the negligent credentialing claim to which I respectfully dissent. I would recognize the tort of negligent credentialing in Kentucky.
In modern medical practice, hospitals have increasingly entered into the arena of hiring and employing physicians covering every facet of medical expertise. These physicians, such as Dr. Trover, are unilaterally selected and granted privileges to practice medicine at the hospital by the hospital. Considering our common-law negligence principles, it is only reasonable and just that hospitals must utilize reasonable care in granting privileges to physicians.
Before this panel are some 24 related appeals involving Dr. Trover and Trover Clinic. In these cases, numerous plaintiffs have alleged that Dr. Trover committed malpractice year after year in the interpretation of radiological studies while a staff physician at Trover Clinic. The sheer magnitude and horrendous nature of Dr. Trover's acts of alleged malpractice while working at Trover Clinic are both inexplicable and disconcerting. These cases underline the reason why the tort of negligent credentialing should be adopted in this Commonwealth. If appellant can demonstrate that Trover Clinic breached its duty by granting privileges to Dr. Trover, who was incompetent, and if appellant can demonstrate harm therefrom, I believe an action for negligent credentialing should be allowed. Accordingly, I would reverse the circuit court's summary judgment dismissing appellant's negligent credentialing claim and remand for further proceedings below.
