RENDERED: APRIL 1, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0569-MR
GLENDA C. JOHNSON APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
v. HONORABLE JERRY J. COX, JUDGE
ACTION NO. 19-CI-00724
DR. JOHN C. MOBLEY; LAKE
CUMBERLAND PHYSICIANS
PRACTICES, LLC D/B/A LAKE
CUMBERLAND WEIGHT LOSS
PHYSICIANS; AND LAKE
CUMBERLAND REGIONAL
HOSPITAL D/B/A LAKE
CUMBERLAND WEIGHT LOSS
CENTER APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES.
DIXON, JUDGE: Glenda C. Johnson appeals from the orders granting partial
summary judgment in favor of Dr. John C. Mobley; Lake Cumberland Physicians
Practices, LLC d/b/a Lake Cumberland Weight Loss Physicians, and Lake
Cumberland Regional Hospital d/b/a Lake Cumberland Weight Loss Center
(collectively “Lake Cumberland”), as well as the orders denying Johnson’s
motions to reconsider and alter, amend, or vacate said partial summary judgments,
entered by the Pulaski Circuit Court on September 9, 2020; October 16, 2020;
February 10, 2021; and March 30, 2021, respectively. After careful review of the
record, briefs, and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Glenda Johnson is a middle-aged woman who has struggled with
obesity since the birth of her son in 1992. Experiencing only minimal success with
either weight loss or maintenance with diets, medications, and exercise regimens,
she ultimately sought surgical intervention. In 2016, a friend told Johnson about a
gastric bypass/lap-band procedure she had undergone to lose weight. Hopeful a
similar procedure might work for her, Johnson began conducting internet research
to learn about surgical options and whether they were offered nearby. During this
online investigation, Johnson discovered Lake Cumberland’s website.
Johnson attended a weight-loss seminar sponsored by Lake
Cumberland at which she heard Dr. John Mobley speak about the procedures he
performed to help patients lose weight, as well as the risks associated therewith.
Johnson began treatment with Dr. Mobley on July 11, 2016. After meeting with
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Dr. Mobley and his staff multiple times, undergoing psychological testing,
obtaining a referral from her primary care provider, and completing an
informational packet, a quiz, and a 17-page consent form, Johnson underwent an
adjustable gastric lap-band surgery performed by Dr. Mobley on April 27, 2017.
During the months following the operation, Johnson followed up with
Dr. Mobley regularly for adjustments of the lap-band. However, on September 28,
2017, Johnson was admitted to a local hospital complaining of abdominal pain.
Subsequently, she underwent a barium esophagram, which revealed a small portion
of Johnson’s stomach had slipped through the band. Johnson claims she was not
apprised of that finding but was released after her symptoms resolved.
As of October 23, 2017, Johnson had lost 57 pounds and was
tolerating all foods well. She continued to treat with Dr. Mobley until July 25,
2018, at which time she had lost 84 pounds and voiced no complaints.
On August 10, 2018, however, Johnson went to a local emergency
room for intense abdominal pain. She was transferred to a nearby hospital where
she underwent surgery the following day. The operative report noted adhesions
found around the lap-band, which was removed, and a dime-sized perforation at
the greater curve of Johnson’s stomach.
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On July 22, 2019, Johnson sued Dr. Mobley and Lake Cumberland,
alleging both medical malpractice and breach of contract/Kentucky Consumer
Protection Act (KCPA) violation.
On July 27, 2020, Dr. Mobley moved the trial court for partial
summary judgment on Johnson’s KCPA claim. The following day Lake
Cumberland joined his motion. After a hearing on the KCPA claim, the trial court
initially denied the defendants’ motions for summary judgment; however, it
subsequently entered orders granting partial summary judgment in favor of Lake
Cumberland and Dr. Mobley on Johnson’s KCPA claim. The trial court denied
Johnson’s subsequent motions to reconsider and to alter, amend, or vacate these
orders, and Johnson now appeals to this court.
STANDARD OF REVIEW
Summary judgment is appropriate “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.” CR1 56.03. An
appellate court’s role in reviewing a summary judgment is to determine whether
the trial court erred in finding no genuine issue of material fact exists and the
moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916
1
Kentucky Rules of Civil Procedure.
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S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de
novo because factual findings are not at issue. Pinkston v. Audubon Area Cmty.
Servs., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006) (citing Blevins v. Moran, 12
S.W.3d 698 (Ky. App. 2000)).
Concerning a trial court’s denial of a motion to alter, amend, or
vacate, it is well-established:
CR 59.05 simply provides: “A motion to alter or amend
a judgment, or to vacate a judgment and enter a new one,
shall be served not later than 10 days after entry of the
final judgment.” A party cannot invoke CR 59.05 to
raise arguments and to introduce evidence that should
have been presented during the proceedings before the
entry of the judgment. Unlike CR 60.02, CR 59.05 does
not set forth the grounds for the motion. But because
“reconsideration of a judgment after its entry is an
extraordinary remedy which should be used sparingly,”
the federal courts, in construing CR 59.05’s federal
counterpart, Federal Rule of Civil Procedure 59(e), have
limited the grounds:
There are four basic grounds upon which a Rule
59(e) motion may be granted. First, the movant
may demonstrate that the motion is necessary to
correct manifest errors of law or fact upon which
the judgment is based. Second, the motion may be
granted so that the moving party may present
newly discovered or previously unavailable
evidence. Third, the motion will be granted if
necessary to prevent manifest injustice. Serious
misconduct of counsel may justify relief under this
theory. Fourth, a Rule 59(e) motion may be
justified by an intervening change in controlling
law.
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Gullion v. Gullion, 163 S.W.3d 888, 893 (Ky. 2005) (footnotes omitted).
ANALYSIS
On appeal, Johnson argues the trial court erred by entering summary
judgment before discovery had been completed. It is well-established “summary
judgment is only proper after a party has been given ample opportunity to
complete discovery, and then fails to offer controverting evidence.” Pendleton
Bros. Vending, Inc. v. Commonwealth Fin. & Admin. Cabinet, 758 S.W.2d 24, 29
(Ky. 1988) (emphasis added) (citing Hartford Ins. Grp. v. Citizens Fidelity Bank &
Trust Co., 579 S.W.2d 628 (Ky. App. 1979)). Yet, it is “not necessary to show that
the respondent has actually completed discovery, but only that respondent has had
an opportunity to do so.” Hartford, 579 S.W.2d at 630.
In Hartford, a period of approximately six months between the filing
of the complaint and the summary judgment was found to be sufficient time to
conduct discovery. However, this is not a bright-line rule, and the appropriate time
for discovery necessarily varies from case to case depending upon the complexity,
availability of information sought, and the like. See Suter v. Mazyck, 226 S.W.3d
837, 842 (Ky. App. 2007).
Here, more than a year elapsed between the filing of the complaint
and the grants of partial summary judgment. This is not a complicated part of the
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case, nor has it been alleged that any information sought has been withheld. Thus,
we cannot say the trial court’s grant of summary judgment was premature.
Johnson next argues the trial court erred by refusing to set aside its
prior “arbitrary” and “inconsistent” orders regarding partial summary judgment on
her KCPA claim. Although Johnson recognizes the trial court has the power to
reconsider, revise, alter, and amend its interlocutory orders – as discussed by the
Supreme Court of Kentucky in JPMorgan Chase Bank, N.A. v. Bluegrass
Powerboats, 424 S.W.3d 902 (Ky. 2014) – she contends the trial court’s prior
orders denying defendants’ motions for partial summary judgment on her KCPA
claim, as the law of the case, should not have been disturbed.
Generally, “[t]he doctrine of law of the case establishes a presumption
that a ruling made at one stage of a lawsuit will be adhered to throughout the
lawsuit.” Hallahan v. The Courier-Journal, 138 S.W.3d 699, 706 (Ky. App.
2004). However, a judge does have the discretionary authority to reconsider a
ruling. Id. “Generally, a judge may reexamine an earlier ruling and rescind it if he
[or she] has a reasonable conviction that it was wrong and it would not cause
undue prejudice to the party that benefited from it.” Id. Moreover, “[i]t is well
established that a trial court may reconsider and grant summary judgment to a
party subsequent to an earlier denial.” Id.
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Herein, there is no basis for determining the trial court’s previous
orders allowing Johnson’s KCPA claim to survive at those points in the litigation
were binding when the trial court entered its later orders granting the defendants
partial summary judgment on the KCPA claim. By the time those partial summary
judgments were granted, significant discovery – most notably Johnson’s
deposition – had been conducted. This evidence demonstrated the lack of a
genuine issue of material fact that would preclude summary judgment as a matter
of law. Thus, the trial court did not err in this regard.
Johnson further contends the trial court erred because material issues
of fact exist regarding misrepresentations by the defendants as part of their
business practice. Johnson asserts she was induced to have this surgery based on
the representations made in the advertisements of Dr. Mobley and Lake
Cumberland. She claims she was not informed of the risks and that the consent
form she signed “did more to confuse rather than clarify those risks.”
We have in other precedent, however, observed for the KCPA to
apply “there must be some allegations that the actions complained of were part of
the business aspect of the practice of medicine.” Barnett v. Mercy Health
Partners-Lourdes, Inc., 233 S.W.3d 723, 730 (Ky. App. 2007). Such actions
include “advertising for a particular procedure or surgery then failing to advise the
patient of the risks involved or of alternative treatment; entering into a financial
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agreement that would increase profits to the possible detriment of patients; or
advertising services at a particular cost then charging at a different rate.” Id.
Johnson argues her claim falls within the first category. Despite her arguments to
the contrary, while the defendants advertised regarding the types of procedures
offered at the clinic, they clearly did not fail to advise Johnson of the risks
involved or of alternative treatment.2 Accordingly, Johnson’s claim does not fit
within those protected under the KCPA.
CONCLUSION
Therefore, and for the foregoing reasons, the orders of the Pulaski
Circuit Court are AFFIRMED.
ALL CONCUR.
2
In her deposition, Johnson recalled that Dr. Mobley discussed the risks in his seminar. She
also correctly answered questions about these in a quiz prior to the operation. They were also
clearly discussed in the consent form she initialed and signed. “The existence of a signed
consent form gives rise to a presumption that patients ordinarily read and take whatever other
measures are necessary to understand the nature, terms and general meaning of consent.”
Hoofnel v. Segal, 199 S.W.3d 147, 151 (Ky. 2006). “To hold otherwise would negate the legal
significance to written consent forms signed by the patient and render the consent form
completely unreliable.” Id.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE DR. JOHN
C. MOBLEY:
John F. Kelley, Jr.
London, Kentucky Stephen S. Burchett
Christopher F. Hoskins
Lexington, Kentucky
BRIEF FOR APPELLEES LAKE
CUMBERLAND PHYSICIANS
PRACTICES, LLC D/B/A LAKE
CUMBERLAND WEIGHT LOSS
PHYSICIANS; AND LAKE
CUMBERLAND REGIONAL
HOSPITAL, LLC D/B/A LAKE
CUMBERLAND WEIGHT LOSS
CENTER:
B. Todd Thompson
Joseph A. Wright
Scott R. Redding
Elizabeth F. Ousley
Louisville, Kentucky
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