John Adams M.D. v. Mark Sietsema

RENDERED: NOVEMBER 2, 2017
TO BE PUBLISHED

cSupreme Qtnurf nf ~enfurku

2015-SC-000483-DG ·

JOHN ADAMS, M.D., AND APPELLANTS
ELIZABETH WALKUP, A.R.N.P..

ON REVIEW FROM COURT OF APPEALS
v. CASE NOS. 2013-CA-001159 AND 2013-CA-001461
HARDIN
.. CIRCUIT' COURT NO. 12-CI-01711 .

MARK SIETSEMA APPELLEE

OPINION OF THE COURT BY JUSTICE VENTERS

REVERSING.

Appellee, Mark Sietsema, brought this medical malpractice action

alleging Appellants John Ad~s, M.D., and Elizabeth Walkup, A.R.N.P., were

negligent in treating, or more accurately, in failing.to treat, his illness while he

was an inmate in the Hardin County Detention Center (HCDC), thereby

causing him to unnecessarily endure days of pain and suffering. Appellee

primarily asserts that Adams, as medical director for HCDC, was inattentive to

inmate medical needs, and that he failed to adequately instruct the jail's

medical staff how to handle patients that refuse to take medications. Appellee

also asserts that Walkup negligently failed to provide the jail nursing staff with
a clear order as to when Appellee shouJd have been taken to a hospital

emergency room.

The trial court entered a summary judgmen.t dismissing Appellee's claims

against Adams and Walkup because he had no expert evidence to establish the

relevant standards of care or to show that Adam~' and Walkup's breach of the

standard of care caused the Appellee's damages. The Court of Appeals

reversed the trial court -µpon its conclusion that the negligent conduct asserted

by Appellee fit within the res ipsa loquitur doctrine and thus could be sustained .
J

at trial without expert testimony.1 Upori discretionary review, we conclude that

Appellee's failure to produce expert evidence is fatal to his claim, and so, we

reverse the Court of Appeals and reinstate the sum,mary judgment granted by
'
the trial court.

I. FACTUAL AND PROCEDURAL BACKGROUND
Southern Health Partners, Inc.
. .
(SHP) contracted to provide health care

services to inmates of HCDC, including the services of a .physici~. Pursuant

to its contract with HCDC, SHP employed a registered nurse and several

licensed practical nurses to staff the jail's medical unit around the clock. SHP

contracted with Adams to serve as the jail medical director. That contract ·

specifically designated Adams as the primary care physician for all inmates at

the jail.

I .The trial court dismissed the Appellee's claims against the jail nursing staff on
grounds of governmental immunity. The Court of Appeals also reversed that ruling,
but the pending claims between Appellee and the nurses are not part of this appeal.

2
 Among other duties set forth in the contract, Adams agreed to "[b]e

responsible to provide 24-hour continuous on-call physician coverage when in

town and available;" and to "[a]ccept telephone calls f:rom SHP personnel to

evaluate medical problems and provide medical decisions, including telephone

prescriptions, emergency room referrals, and such other items as are

reasonably necessary." With SiiP's con~ent, Adams employed Walkup to fulfill

his duty of making weeklyjail visits to monitor and evaluate the quality of

patieht care. Adams personally visited thejail monthly.~ ·

To facilitate Adams' assent on various medical forms· used at the jail,

Adams authorized Walkup to direct nurses to use his signature stamp on the

forms during his absence. Walkup testified that the signature stamp was to be

used to record Dr. Adams' assent on lab requests and other documents,

including inmates' refusal of treatment forms. She testified that the use of the ·

signature stamp facilitated the medical treatment of inmates by allowing

essential documents to remain with the inmate's medical record, rather than
J
setting them af:lide in a stack to be signed by Dr. Adams at his next jail visit.

The stamped documents could then be tabbed within the medical record and

easily located when she reviewed the records at her next weekly visit.

Appellee claims that the nurses' improper use of the signature stamp

caused him to suffer unnecessarily over the course of several days. After

experiencing fever and vomiting for two days, Appellee requested medical

treatment. The next morning, a staff nurse visited him and noted his·

complaints of abdominal pain, nausea, vomiting, and fever. Appellee reported

3
that he had a history of diverticulitis and that a large portion of his colon had

been surgically removed. The nurse initiated a course of the anti-nausea

medication Phenergan and· a restrjcted diet. ·

.
The next day, a different nurse visited Appellee. On this occasion, he did

not specifically complain of abdominal pain, but he still reported nausea~

vomiting, and the fever he had had for three days. The treatment plan

approved by the Medical Team Administrator, Brenda Brown, R.N., prescrib~d

a Phenergan suppository- and continuation of the special diet. It also directed

that Appellee be placed in isolation until his vomiting stopped.

Four days later, still in isolation,.Appellee again filled out a written

request for medical treatment. He complained of vomiting and constipation for

six days. He reques~ed an antibiotic and a stool softener. Walkup arrived at

the jail the next day .. She diagnosed his condition as diverticulitis and mild

dehydration. She ordered a r~gimen of clear liquids for 48 hours, Phenergan,

and antibiotics. She left a written order for Appellee to be taken to the

emergency room if he was "unstable or unable to tolerate fluids."

The following afternoon Appellee rejected· the prescribed medications.

The attending nurse had him sign a "Refusal of Medical Treatment and ~elease

of Responsibility" form and advised him to inform the medical staff if his

vomiting continued. Instead of notifying Adams and securing his direct

acknowledgement of Appellee's refusal of treatment, the nurse s~ped his

signature t9 the form. No one .at the jail contacted Walkup
.
during this time

concerning Appellee's medical status.

4
 For the next two days, Appellee continued to refuse his medication. At

each refusal, the nurse completed the standard refusal of treatment form,

stamping it with Adams' signature without contacting him or Walkup. On the·

third morning, Appellee. was discovered collapsed on the floor of his cell. He

again refused medication, and again, the treatment refusal form was completed

· and stamped
.
with Adams' signature, and no. contact was made with Adams or

·Walkup. After further assessment, Nurse Browri ordered that Appellee be

taken to the emergency room of the local hospital. At that point, Brown ·

informed Walkup that Appellee had been. taken to .the hospital, and Walkup

informed
.
Adams. Until then, Adams was never made aware of Appellee's
.

condition, or even that Appellee was an inmate/patient at HCDC. Later,

Appellee was transferred to intensive care at the University of Louisville

Hospital where he underwent surgery for a bowel obstruction.

Based upon the foregoing events, Appellee brought medical negligence

claims against Adams, Walkup, and the SHP nursing staff at the jail. He

specifically claim that he suffered unnecessary mental and physical pain due to

the three-day delay in _his hospitalization, which he further claims was caused

by: 1) the nurses' use of Adams' signature stamp which made it·unnecessary

for them to inform Adams of Appellee's condition when Appellee refused his

medication; and 2) Walkup's inadequate instructions to the jail nurses about

the circumstances which would compel Appellee's immediate transport to a

hospital.

5
 During pr.e-trial discovery, Appellee identified only one potential expert

witness, Nurse Susan Turner. Although Turner's opinion found fault in the

care provided for Appellee by the jail nursing staff, she expressed no opinion

critical of Adams or Walkup. Adams and Walkup moved for summary

judgment based upon the lack of evidence critical of their conduct.

Th.e trial court concluded that Appellee could not prove liability on the

part of Adams or Walkup without an expert opinion to identify how Adams' and

Walkup's conduct breached the standard of Carf? and caused injury to Appellee.

The Court of Appeals reversed the trial court's decision based upon its

conclusion that whether Adams or w·alkup, or both of them, rendered deficient

care to Appellee under the factual circumstances of this case could be

determined ~thout expert opinion.

II. ANALYSIS

A~ A trial court's decision to grant summary judgment is subject to de
novo appellate review.
. The first point of contention addressed by the parties to this appeal

concerns the standard of review by which we should judge a trial court's

decision to grant. summary judgment whenamedical malpractice claimant.fails

to support his claim with expert testimony. Appellants Adams and Walkup

insist that appellate review must grant substantial'· deference to the trial court.

They argue that "abuse of discretion" is the applicable standard of review.

Citing Baptist Healthcare System, Inc. v. Mill~r, 177 S.W.3d 676, 680-681 (Ky.

2005), and Miller v. Eldridge, 146 S.W.3d 909, 917 (Ky. 2004), they contend

6
 ; . ~

that the Court of Appeals gave insufficient deference to the trial court's opinion,

which they characterize as an evidentiary ruling traditionally left to the

discretion of the trial court. Appellee argues that the issue upon which ~e

trial court granted summary judgment is a question of law to be reviewed by an

appellate court de novo.

To keep this threshold issue in its proper perspective, we should note the

comment of the United States Supreme Court in Koon v. United States, 518

U.S. 81, 100 (1996):

Little turns, however, on whether we label review of.this particular
question abuse of discretion or de novo, for ari abuse-of-discretion
standard does not mean a mistake of law is beyond appellate
. correction. A [trial] court by definition abuses its discretion when
it makes an error of law. . . . The abuse-of-discretion standard
includes review to determine that the discr~tion was not guided by
erroneous legal con~lusions.

We made a similar observation in Sargent v. Shaffer.

When it is argued that a trial court abused its discretion because
its decision was "unsupported by sound legal principles,"[2] we
must examine the application of those legal· p~ciples, and that is
inherently a matter of law. We generally accord no deference to a
trial court's view of the law. Thus, as a practical matter, in that
limited instance there is no difference between. review for abuse of
discretion and de novo review.

467 S.W.3d 198, 203 n~ 5 (Ky. 2015).

2 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999): "A trial court
abuses its discretion when its decision is arbitrary, unreasonable, unfair, or
unsupported by sound legal principles."

7
 Although our ultimate decision may be the same under either standard

of review, we nevertheless clarify the applicable standard here. This case arose

from a summary judgment entered in the trial court, which by definition .is a

legal, rather than factual, determination. CR 56.03. Ordinarily, "We review the

trial court's issuance
. .
of summary judgment de novo and any factual findings

will be upheld if supported by substantial evidence and not clearly erroneous."

. Board of Regents of Northern Kentucky University v. Weickgenannt, 485 S .. W.3d

299, 306-307 (Ky. 2016). (citation omitted)~
\

·To similar effect, we said in Shelton v. Kentucky Easter Seals Society, Inc.,·

"Appellate review of a summary judgment involves only legal questions and a

determination of whether. a disputed material issue of fact exists. So, we

operate under a de novo standard of review with no need to defer to the trial

court's decision." 413 S.W.3d 901, 905
.
(Ky. 2013).
.

More specifically pertaining to summary judgments based upon the

plaintiffs failure to obtain expert medical opinion testimony, we said in

Blankenship v. Collier that "an· appellate court always reviews the substance of

a trial court's summary judgment ruling de novo, i.e., to determine whether the

record reflects a genuine issue of material fact." 302 S.W.3d 665, 668-669 (Ky.

20~0). Our decision in Blankenship clearly recognized that, fundamentally, the

lack of expert testimony is "truly a failure of proof [for which] a summary

judgment is appropriate." Id. at 668. Whether there is "a failure of proof," or

as it is sometimes called, insufficient evidence to sustain a particular claim, is

a question of law.· Lackey v. Commonwealth, 468 S.W:3d 348, 355 (Ky. 2015)

8
 ("The question of whether there was sufficient evidence to warrant a third-

degree escape instruction is a question of law to be reviewed de novo.").

Appellants' argument to the contrary stems from inartful language used in

Baptist Healthcare.

In Baptist Healthcare, !he trial court deter.mined that testimony of an

expert phlebotomist was an indispensable component of the plaintiffs proof.

However, instead of dismissing the case on summary judgment for lack of

evidence sufficient to create a genuine issue of material fact, the trial court
-,
granted a continuance allowing the plaintiff additional time to o.btain the

essential expert witness. Id. at 679-680. Ultimately, the plaintiff was

successful at trial and the defendant appealed, arguing !hat the trial court

erred by failing to grant the motion for summary judgment and, alternatively,

that the trial court erred in granting the continuance. Id. at 680.

, Upon review of the trial cqurt's failure to grant summary judgment, the

Baptist Healthcare Court
.
found "no abuse of trial court discretion in . continuing

·the case to allow Ms. Miller to identify an expert, trial court error in denying

[the· defendant hospital's] motion for summary judgment, or other reversible.

error." Id. at 677. The Court also noted that the "trial judge has wide

discretion to admit or exclude ~vidence including that .of expert witnesses." Id.

at 680-681. Significantly, those references to the abuse of discretion standard

do not pertain to the legal question of wh~ther the lack of expert testimony was

a failure of proof requiring· dismissal of the plaintiffs claim:
 After examining the issue in light of KRE 702-705, the Baptist Healthcare

Court observed that while "it was not unreasonable for [the plaintiff] to contend

that ... the principle of res ipsa loquitur applied to the case[,] ... the trial

judge,_ acting well within her discretion, saw it otherwise." Id. at 681. This

.unfortunate reference to the trial court's discretion confuses the admissibility

of expert opinion evidence with .an entirely different concept: the sufficiency _of

evidence needed to sustain .a claim of professional neglige:r:ice. More precisely,
. .
when the issue is summary judgment, the question is not whether an expert ·

opiniop. is admissible evidence; the question is whether the plaintiff can

possibly demonstrate withoµ.t expert opinion testim~ny the existence .of a·

genuine issue of material fact as to the defendant's breach of duty or causation

of damages, and thereby refute the defendant's contrary assertion. 3 KRE 702-

705 deal exclusively with the admissibility of expert opinion ari.d have nothing

whatsoever to do with the elements of a tort, arid whether those elements can

be sufficiently proven wi~out expert testimony. -

A trial ·court's decision _to admit or reject evidence in the form of opinion

testimony under KRE 702-705 is very different from the decision to dismiss a

case oh summary judgment for. insufficient evidence, or "a failure of proof."

The former is reviewed under the abuse of discretion standard, but we have

a CR 56.03 ("[Summary judgment) shall be rendered forthwith 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."). .

10
 consistently held that the fatter is a ques.tion of law to be reviewed on appeal de

novo.

Miller v. Eldridge involved the applicable standard for appellate review of

· trial court decisions o:µ the admissibility of scientific evidence under Daubert v. ·

Merrell Dow.Pharmaceuticals, Inc., 509 U.S. 579 (1993). Eldridge is not a

summary judgment case, and it does not involve the question of whether an

expert opinion was necessary to sustain a me~ical malpractice claim. Apart

from o.ur acknowledgment that "it is sometimes difficult to distinguish between

the de novo, clear error, and abuse of discretion standards of review," id. at

9 i 7, nothing in Eldridge lends itself to the resolution of the issues ~n the

instant case. 4

B. Appellants were entitled to summary judgment dismissing Appellee's
claims against. them.
Upon moving for summary judginent, Adams and Walkup had the

· burden of demonstrating to the trial court that Appellee's failure to come forth

with expert testimony was fatal to his claims against them. Appellee responded .

4 In Eldridge, and in cases too numerous to conveniently cite here, this Court
and the Court of Appeals have gratuitously recited by rote that "abuse of discretion is
the proper standard of review of a trial court's evidentiaiy rulings." See, for example,
Goodyear Ti.re and Rubber Co. v. Ttwmpson, 11 S.W.3d 575, 577 (Ky. 2000). The
problem with that boilerplate language is that the phrase "evidentiary rulings"
captures an extremely broad and vaguely defined range of trial court activity. A trial.
court's interpretation of specific provisions of the Kentucky Rules of EVidence could be
called an "evidentiary ruling," but we have steadfastly held that the interpretation of
our Rules of. Evidence is an issue of law to be reviewed on appeal de novo. See Meyers
v. Commonwealth, 381 S.W.3d 280, 283 (Ky. 2012). A trial court's ruling to suppress·
criminal evidence because of a constitutional violation is an "evidentiary rulin~ but it
is also a ruling that on appeal is reviewed de novo. See Williams v. Commonwealth,
364 S.W.3d 65, 68 (Ky. 2011). Without a more precise articulation of the rule, the
best that can be said of it is that some, but not ail, "evidentiary rulings" are reviewed
for abuse of discretion. Clearly, some are not.

11
 I.

to their motion with the argument that under the circumstances of his case, no

medical expert evidence was necessary.

Most medical malpractice claims involve issues of science or professional

skill outside the ordinary experiences and range of knowledge of typical jurors

and judges. For that reason, most, but certainly not all, medical malpractice

claims cannot be .proven without expert opinion testimony to establish that the

conduct in question departed from the applicable standard of care and was a
)

proximate cause of the damages claimed. See Perkins v. Hausladen, 828

S.W.2d 652, 655-656 (Ky. 1992);. Greer's Adm'r v..Harrell's Adm'r, 206 S.W.2d

943, 946 (Ky. 1947); Caniffv. CSX Transportation, Inc., 438 S.W.3d 368, 374

(Ky. 2014). The expert opinion testimony admitted in accordance with KRE

702-705 provides information to assist the finder-of-fact, either a trial judge or
'

jury, in determining whether the conduct in question violated the standard of
care and caused the damages claimed by the pla)ntiff.

We have recognized that in at least two circumstances the fact-finder can

fairly and competently evaluate the claim without the benefit of expert opinion

testimony. First are the res ipsa loquitur cases in which "the common

knowledge or experience of laymen is extensive enough fo recognize or to infer

negligence from t:l?-e. facts." Jarboe v. _Harting, 397 S.W.2d 775, 778 (Ky. 1965)

(citations omitted). "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. m

Blankenship, 302 S.W.3d at 670 (citation omitted) .. Second, expert opinion is

12
not required "where the defendant physician makes certain admissions that

make his negligence apparent." Id.

Neither Adams nor Walkup have admitted that they violated a standard

of care and so Appellee relies upon res ipsa loquitur - the theory that any

reasonable person could reasonably infer negligence from circumstarices of the

injury; or generally, that the injucy could not have occurred but for the

negligence of Adams or Walkup, or both of them.

l. · Appellee's claim that Appellants Adams and Walkup negligently
trained the jail nursing staff could not be sufftciently established
without expert opinion testimony.
·It is rindisputed that Adams was ·never informed of Appellee's condition

and that had he, been so. infonned,. he would as his duty required, have

undertaken immediate steps to treat it.· Appellee's theory of negligence on the

part of Adams is that by allowing nurses to stamp his signature on Appellee's

refusal of treatment form, Adams remained. purposefully ignor8.Il:t of Appellee's

condition and for that reason is estopped from denying the knowledge that he

admits would have prompted him to take action. A necessary ingredient of that

argument is Appellee's implied assumption that the nurses were instructed

that if they used the signature stamp on treatment refusal forms, there was no

medical need to contact Adams or Walkup. We find no evidence to support

that assumption.
I

The most apparent purpose of the doctor's signature, stamped or

otherwise, on the refusal of treatment form is to record the fact that the doctor

was made aware that the patient was not taking the prescribed medication.

13
Nothing on the form suggests to an attending nurse that the use of the doctor's

signature stamp obviates the need to inform the doctor. To the ordinary

medically-uneducated layper~on, common sense and experience would suggest

that with respect to a treatment refusal.form, the signature stamp was to be

used in conjunction with a call. to the doctor who was not at the scene to sign

directly, rather than in lieu of a call to the doctor.

We find no indication in the record that any evidence existed to show

that the nurses were instructed not to contact Adams or Walkup when a

patient refused treatment. 5 Adams testified that on most of his monthly visits

to the jail he reminded the jail staff, "If you ever need me, if you ·ever need

anything, my phone is always open."

Adams .and Walkup both testified that they would have expected the

nurse who filled out Appellee's r~fusal ·of medical treatment form to contact

them and .notify them that Appellee was refusing his medication without

explicit instruction or traming to do so. Adams testified, "[the SHP nurses] are

licensed, seasoned nurse practitioners-licensed seasoned nurses. They had

been doing general medicine for along time. They knew what they were doing.

If they saw something they didn't like, they should have picked up the phone

and called me."

s Nurses at the jail gave deposition testimony that Brown, R.N., the Medical
Team Administrator, instructed them to call her, not Adams. Adams testified he was
unaware of the practice and .would have objected to it.

14
 .Adams testified that the nurses' duty to communicate with the physician

does not vary based upon the institutional setting, and that the nurses at a

detention facility, because of their professional training and experience, knew

when a patient's circumstances required a call to the doctor. Adams also

testified that in accordance with their professional training and experience, the

jail nurses knew that a signature s~p did not supplant their duty to assess

their patient's needs an4 make the clinical decisiOn that a call to- the doctor

was required. Adams acknowledged that he was aware of the practice of using
. .
his signature stamp on refusal of medical treatment forms, but he explained:

Let's s_ay we diagnose you with tennis elbow and we give ·you
. Motrin and you refuse Motrin. That's just not that important. But
if you're refusing an antibiotic for the diverticulitis, that is
something important. And that's clinical decision making. They
are well seasoned nurses. They ·know when they should call. . ..
[T]he stamp was not to keep them from being able to call me. The
stamp was just used as-·an administrative tool to keep the paper in
the chart.

If a custom or protocol of the medical profession established a contrary

standard for using the signature stamp upon which Adams and Walkup should

have.instructed the nurses, it was incumbent upon Appellee to produce it. In

the absence of such evidence, we see no reason to suppose that the jail nursing

staff would fail to contact the doctor; nor any reason to believe that Adams or

Walkup should have anticipated the need to train the jail staff on the use of the

signature stamp, especially on the need to ·call them when the patient refusing

treatment had collapsed on the floor, vomiting and writhing in pain .

. We disagree with the Court of Appeals' view of this case as pre~enting a

res ipsa loquitur situation in which n.o expert testimony is needed .. It would not
15
 " the common experience of the ordinary person to presume that a
be within

nurse's authority to use the doctor's signature stamp negated the need.to

contact -the doctor about medically significant events or that a physician must

train nurses on the need to contact the physician, with or withm.;tt the use of a

signature stamp. Expert testimony would be needed to show that the standard

of care requires such training.

Although our reasoning differs somewhat from the trial court's, 6 we

nevertheless agree with the trial court that the failure to train aspect of

Appellee's claim. of negligence required expert testimony. Emberton v. GMRI,

Inc., 299 ~.W.3d 565, 576 (Ky. 2009) ("[A)n appellate court may affirm a lower

court's decision on other grounds as long as the lower court reached the

correct result.").

2. Appellee's claim that Walkup was negligent in the preparation of her
order to thejail nursing staff could not be established without expert
opinion testimony.

Appellee asserts that Walkup was negligent because her order

directing the nursing staff to transport Appellee to the hospital if he was
. .
"unstab~e or unable to tolerate fluids" was ambiguous, thus causing the

three-day delay in getting him to the hospital. In her own defense, Walkup

testified in her deposition that her order, phrased as it was, properly instructed
(
the nursing staff and that, given the symptoms· they observed, compliance with

6 The trial court emphasized the need for expert testimony ~th respect to
Adams' role as a jail medical director and the training duties associated with that
position. Our focus is on Adams' duties as the inmate's primary care physician.

16
her order compelled them to send Appellee to the hospital.- Adams agreed,

testifying that Appellee, having collapsed in his cell, was indeed "unstable," and

that Walkup's order adequately communicated the need to move Appellee to a

hospital without further instructions or guidance from Adams or Walkllp. He

added, "Often times I'll write something and· [attending nurses] will call and

say, we're not sure we knew what you meant, and I will clarify immediately. So

if the order was not understood or. ambiguous at all, there should have been a

phone call asking for clarification of the order."

We agree with the trial court's summary disposition of this issue. The

meaning of Walkup's order and its application to Appellee's condition is not

something that "any layman is competent to pass judgment and co_nclude

from common experience that such things do not· happen if there has been

proper skill and care." Perkins, 828 S.W.2d at 655 (citations omitted). The

res if)sa loquitur doctrine. we have recognized in .other circumstances is

inapplicable here. Expert testimony was necessary to establish that Walkup

was negligent in the preparation of her order.

III. CONCLUSION

In summary, we conclude that the trial court's decision to grant

summary judgment based upon a failure of :proof is subject to de nova re~ew

?n appeal. Upon such review, we agree that in the absence of expert testimony

to the contrary, Appellee's e_vidence failed to create a genuine issue of material

fact as to Appellants' breach of a standard of are, and as a matter of law,

·17
 Appellants were correctly granted summary judgment. We, therefore, reverse

the opinion of the Court of Appeals in this matter and reinstate the trial court's

judgment dismissing Appellee's claims against Adams and Walkup.

All sitting. Minton, C.J._; Cunningham, Hughes, Keller, and VanMeter,

JJ., concur. Wright, J., concurs in part and dissents in p~ by separate

opinion.

WRIGHT, J., CONCURRING IN PART AND DISSENTING IN PART: While I

otherwise concur with the majority, i respectfully dissent as to its holding

concerning Dr. Adams. The majority insists that Appellee's claim against Dr.

Adams required an expert witness to survive a motion for summary judgment.

I disagree. We have accepted two circumstances under which expert testimony

is unnecessary in medical cases such as this, pursuant to the doctrine of res

· ipsa loquitur. The first is "where the common knowledge or experience of·

laymen is extensive enough to recognize or to infer negligence from the faets."

Jarboe v. Harting, 397 S.W.2d 775, 778 (Ky. 1965). The second exception to

the need for expert testimony occurs by way of "admissions by the defendant

doctor." Id. Both exceptions apply in the present case. Therefore, I would not
place the onerous burden of securing an expert witness upon the Appelle~

and would allow his claim against Dr. Adams to survive the motion for

summary judgment.

Southern Health Partners (SHP) contracted
.
with Hardin County. to

provide medical services to the inmates of the Hardin County Detention Center

(HCDC). In~' SHP contracted with Dr. Adams in April 2007 to provide
18
"professional medical services to inmates of' HCDC. In his contract with SHP,

Dr. Adams agreed to provide these "professional medical services" at HCDC

approximately five hours per week.· Dr. Adams also agreed to "provide 24-hour

continuous 01;1-call physician coverage at [HCDC] when in town and available"

and to "accept telephone calls from SHP personnel to evaluate medical

problems and provide medical decisions .... " Dr. Adams testified during his

deposition that he was HCD_C's medical director and the primary care

physician for its inmates.

In addition to his duties at HCDC, Dr. Adams maintained a family

practice, oversaw a medical clinic, and contracted with SHP to be the primary

physician for six ·other detention centers across the Commonwealth. Dr.

Adams and Nurse Practitioner Walkup testified that Dr. Adams only vi13ited

HCDC once per month for one to two.hours. Dr. Adams instead delegated the

weekly visits required by the terms of his contract to Walkup. Walkup was

tasked with visiting all seven jails for which·Dr.
.
Adams
.
served as primary

physician in ~o days each week-visiting three detention centers one day and

four the other. Walkup saw patients in Dr. Adams's clinic the remainder of the

week.

I will turn to the first exception where expert testimony,is unnecessary in
l.

a medical case: "where the common knowledge or exP.erience of laymen is

extensive enough to recognize or to infer negligence from the facts." Jarboe,

397 S.W.2d at 778. Particularly relevant to this exception is SHP's "refusal of

medical treatment" fohn, which was filled out each of the six times Appellee

19
 refused his medication leading up to his eventual collapse and trip to the

emergency room. The bottom of that form reads ."SHP Medical Director's

Acknowledgement (please initial)." Dr. Adams indicated in his. deposition that

he did not know why the form requires his signature; however, the reason is

obvious. Just as Walkup testified, Dr. Adams's signature was necessary

because he. needed to be aware when patients
.
refl,l.sed medical treatment.

Shortly after signing the contract with SHP, Dr. Adams sent a signature

stamp to HCDC .. Walkup testified she told the nurses to utilize the stamp

rather than obtaining the doctor's signature on "refusal of medical treatment" .

forms. Thus, the nurses stamped Dr. Adams's acknowledgement on the

. "refusal of medical treatment" document rather than ever discussing any

refusal with the physician. (In fact, according to deposition testimony, the

forms were often stamped in advance or simply photocopied With the signature

already in place.) Dr. Adams had been the medical director and primary

physician for HCDC for 3 years. Obviously, he had to implement and

understand the imp~ct of his procedures or lack thereof..

The very existence of this form and Dr. Adams's failure to have any

knowlec;Ige of the information contained therein clearly demonstrated to the .

jury both the duty Dr. Adams owed his patients and ~e breach of that duty.

Obviously, the refusal of medication form required the medical director's (Dr.

Adams's) signature because it was important to the health and safety of t:he

patient that he have the information. Dr. Adams's actions allowed the jury to

"recognize or infer neglige.nce" without the need of an expert witness.

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•.
 Due to the use of the signature stamp-and much ta Appellee's

detriment-Dr. Adams remained unaware of Appellee's refusal to take llis ·

medication over the course of several days· until Appellee was sent to the

emergency room at a local hospital. An expert witness testified that the nurses

were negligent in failing to contact Dr. Adams concerning Appellee's inability to

take the prescribed medications. If it was negligent for the nurses to fail to .

inform Dr. Adams; it would have to be negligent for Dr. Adams to ignore that

information on the six separate occasions his signature was affixed to the

"refusal of medical treatment."

I will now tum to the second exception to the need for expert testimony

involving "admissions by the defendant doctor." Id. During Dr. Adams's

deposition testimony, he was questioned about what he would have done if he

had actual knowledge that Appellee continued to vomit. Dr. Adams answered,

"[i]f they would have called and said, that he is continuing to vomit ... I would

have said, send him to the ER." Through his signature stamp, Dr. Adams

chose to ignore the vital information contained in the "refusal of medical

treatment" documents. Had Dr. Adams not employed the use of the stamp in

the manner in which he did, arid had, instead, signed the documents himself
..
or had a nurse discuss the patient with him within a reasonable time,

Appellee's condition would not have deteriorated to the point it did before he

was finally taken to the hospital. We know this through Dr. Adams's own

testimony.

21
 Eventually, Appellee was taken to the hospital, but only after he

collapsed in his cell .. The same day he was taken to the emergency room,

· Appellee was tr8.nsferred to the University of Louisville Hospital, where they

operated on him the following day. The emergency surgery would have

occurred. sooner, but Appellee was so dehydrated by this point that it had to be

postponed to ensure he was properly hydrated. Appellee (who was thirty years

of age at the time and had previously had several inches of his colon removed

due to div~rticulitis) suffered respiratory failure, requiring intubation, and had

bilateral chest tubes placed after both of his lungs collapsed. Eventually,

Appellee stabilized and had an exploratory laparotomy which revealed multiple .

small bowel adhesions, which were repaired.

It is true, as the majority points out, that Dr. Adams did not know

. Appellee had refused his medications, as the refusal of medical treatments

were stamped with his signature and he chose not to read them ~r discuss

them with the nurses. We have long held that the use of a signature stamp

may constitute a signature. Blackbum v. City of Paducah, 441 S.W.2d 395,

397 (Ky. 1969) (~temal citations omitted).

First, I readily acknowledge that there are many circumstances in which .

the use of a signature stamp would be perfectly acceptable. One example

would be if Dr. Adams had given standing orders about circumstances which, if

present, called for the use of the stamp. For instance, if he instructed the ·

nurses when a patient refused an over-the-counter analgesic that they could

simply stamp his name without contacting him, tha,t would likely have been

22
 appropriate. Likewise, had Dr. Adams told the nursing staff over the phone to

stamp the refusal of medical treatment after being advised of the condition of

the patient, Dr. Adams would have probably met his duty of care. In another

scenario that would likely comport with Dr. Adam.s's duty, he could have

authorized the use of the stamp for certain time intervals, and then had the

nurses contact him with the details of the documents within a reasonable time.

However, none of these things happe_ned. Instead of a reasonable delegation

with oversight, Dr. Adams signed the "refusal of medical treatment" and

ignored the information contained therein.

Dr. Adams lacked knowledge of Appellee's refusal because he chose to

cause the documents to be signed through the signature stamp without ever

reading, reviewing, or discussing the information found in them. However, Dr.

Adam.s's lack of ,actual knowledge did not remove his responsibility to

Appellee's care. As we held in Inquiry Comm'n v. Lococo, 18 S.W.3d 341 (Ky.

2000), it amounted to gross negligence for an attorney to fail to oversee her

. employee's use of a signature stamp, in the administration of an escrow

account. If it is gross negligence for an attorney to fail to properly supervise

the use of her signature stamp in the administration of mere money' how much

more so would a doctor be grossly negligent in failing to properly supervise the

use of his signature stamp in a matter of life and death?

Here, Dr. Adams failed to make any provision to ensure that he knew the

information in the documen~s he signed. Appellee's sickness occurred more

than thr.ee ye~s after Dr. Adams became the primary care physician for the

23
 '
. inmates of HCDC and the nurses began using the. signature stamp. As noted,

there· were many ways in which Dr. Adams could have had the nurses

appropriately use the signature stamp. He just failed to use any of them ·or to

set up any procedures regarding its use. He just chose not to do so. He

testified that had he known the information contained in Appellee's "refusal of

medical treatment," he would have taken imm_ediate steps to treat Appellee's

condition. However, it was through Dr. Adams's own procedures (or, rather,

lack thereof) that he was unaware. As the old maxim goes, "ignorance of the

law .is no excuse"; neither
. is a doctor's willful ignorance of his patients' medical

conditions.

Ultimately, Dr. Adams failed to follow the terms of his contract requiring

him to act as the primary care physician for the HCDC inmates-and, more

specifically, he failed to act as Appellee's primary care physician. It was his

duty-and the duty was an important one. The doctor is responsible for the

information in the document he signed even though he failed to read, discuss,

or review it. Appropriate procedures and safeguards were established when the

refusal of medical treatment form was established to require the medical

director's signature.
. There had to be a reason
.
that the form required the

medical director's signature. By requiring ·that the "refusal of medical

treatment" form require the medical director ·signature~ the procedures and

importance of the m~dical director· having knowledge of this vital information

were established. Once the procedure to make certain the medical director is

informed of this vital information about the patient is established, why would

24
we need an expert to say it is negligent of Dr. Adams to not read or make

certain he is aware of this vital information about his :patient?

The stamp is the doctor's signature. It is his responsibility to specify

how the stamp mEl.Y be used an~ have checks and controls to make sure it is

not being abused and he has all vital information. Medical mistakes in

hospitals, clinics, prisons or jails can lead to injuries or even death. How can

any hospital, clinic, prison ·or jail ever establish procedures to reduce this

danger to patients if the doctor can avoid any responsibility by just saying I do

not know what is in the paper I signed, my signature is just an administrative

tool to keep the paper in. the chart?·

Dr. Adams's next excuse is that the nurses should have called him. I

agree. The question we are faced with is whether the failure of the nurses to

call the doctor totally excuses his failure to read, discuss or later review the
.
document that he signed. Can the doctor avoid all responsibility by saying,
-
"blame the nurses, I do not have anY: responsibility, even if I do not take the

time or effort to read,. discu~s, or later review the documents that require my

signature"?

Further, it is important to keep in mind the vulnerability of the

population at issue here-the population Dr. Adams neglected. Appellee could

not merely walk out of the jail to seek a second opinion. He .could only seek

treatment from the SHP nurses working at HCDC and could only depend on

Dr. Adams-his primary care provider-to .oversee· that treatment .. Dr. Adams

failed to do so, and this failure 8.lmost cost Appellee his life.
 When ruling on a motion for summ.ary judgment, this court must view

the record "in a light most favorable to the party opposing the motion for

summary judgment and all doubts are to be resolved in his favor." Steelvest,

Inc. v. Scansteel Sero. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). In looking

through the lens of this standard, Appellee presented ample evid~nce to survive

Dr. Adams's motion: Here, "the common knowledge or experience of laymen is

extensive enough to recognize or to infer negligence from the facts~" Jarboe,

397 S.W.2d at 778. This is not a case where the jury would be required to look

at complex medical evidence to determine whether Dr. Adams ·breached the

standard of c~e; rather, the jury need only determine if Dr. Adams acte~

negligently through his willful ignorance of the seventy of Appellee's condition.

Thejury could make this determination based on Dr. Adams' admissions. Id.

The facts of this case are such that a jury could have decided this case

without expert opinion.based on the doctrine
.
of res ipsa loquitur. The facts
.
are

sufficient that a jury could find both negligence and causation based on three

factors: (1) appropriate medical procedures required that the medical director

(Dr. Adams) sign the "refusal of medical treatment" (this would've required that

he was aware of the information in the "refusal of medital treatmen:t" in a
. '
reasonable and timely fashion); (2) Dr. Adams signed the "refusal of medical

treatment" without any provision or action to ensure that he knew th.e ·vital

information contained therein in a reasonable and timely fashion; and (3) Dr.

Adams admitted that if he had known the information in the "refusal of medical

treatment," he would have ordered Appellee taken to the emergency room.

26
Therefore, I dissent as to the majority's holding regarding Dr. Adams and would

remand this matter to the trial court with directions to deny Dr. Adams's

motion for summary judgment.

COUNSEL FOR APPELLANTS:

Daniel Garland Brown
Robert Joseph Shilts ·
Gazai{ Brown, P.s.c;
3220 Office Pointe Place, Suite 200
Louisville, KY 40220

COUNSEL FOR APPELLEE:

.Gregory Allen Belzley
Belzley Bathur~t Attorneys
P.O. Box278
Prospect, KY 40059

Daniel Jay .Canon
Clay, Daniel, Walton, Adams, PLC
462 South ·Fourth 'Street
Meidinger Tower, Suite 101
Louisville, KY 40202

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