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
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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