Mary McCready v. Health South Cardinal Hill Rehabilatation Hospital, LLC D/B/A Cardinal Hill Rehabilitation Hospital ( 2021 )

RENDERED: DECEMBER 22, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1612-MR
MARY MCCREADY APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 18-CI-00202
HEALTHSOUTH CARDINAL HILL
REHABILITATION HOSPITAL, LLC,
D/B/A CARDINAL HILL
REHABILITATION HOSPITAL APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; TAYLOR AND L. THOMPSON, JUDGES.
TAYLOR, JUDGE: Mary McCready brings this appeal from an October 21, 2020,
Order of the Fayette Circuit Court granting summary judgment and dismissing
McCready’s medical negligence action against HealthSouth Cardinal Hill
Rehabilitation Hospital, LLC, d/b/a Cardinal Hill Rehabilitation Hospital,
(HealthSouth). We affirm.
McCready was a patient at HealthSouth and fell while undergoing
physical therapy. As a result of the fall, McCready suffered a fractured nose and
displacement of a plate surgically implanted on her distal femur bone.
On January 19, 2018, McCready filed a complaint in the Fayette
Circuit Court against HealthSouth. In the complaint, McCready alleged that her
fall was caused by the negligence of a physical therapist and staff of HealthSouth:
4. On January 21, 2017, [McCready] was receiving
physical therapy services by an employee or agent
of [HealthSouth] when the therapist negligently
permitted [McCready] to fall in the floor.
5. [McCready’s] fall resulted in a fractured nose, and
further resulted in displacement of a distal plate
which had been previously implanted in the area of
[McCready’s] left knee. The displacement of the
plate further resulted in the necessity of the surgical
removal of the plate and related hardware.
6. The employees, agents, servants and representatives
of [HealthSouth] were responsible for the care,
safety and well-being of [McCready] at the time of
[McCready’s] fall.
7. The acts of [HealthSouth’s] employees, including
the physical therapist working with [McCready] at
the time of her fall, in allowing [McCready] to fall
while receiving physical therapy services constitute
negligence on the part of the employees, agents,
servants and representatives of [HealthSouth] which
resulted in [McCready’s] fall and resulting injury to
[McCready’s] nose and leg.
8. As a proximate result of the negligence of the
employees, agents, servants and representatives of
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[HealthSouth], [McCready] has suffered physical
pain and suffering to date, mental anguish and
emotional suffering to date and medical expenses,
all to her damage in an amount exceeding the
jurisdictional threshold of this Court. [McCready]
will also likely suffer physical pain, emotional
suffering and mental anguish in the future as a
proximate result of said negligence.
9. As a proximate result of the aforesaid negligence of
the employees, agents, servants and representatives
of [HealthSouth], [McCready] has suffered severe
and permanent physical injury to her [as] damage in
excess of the jurisdictional threshold of this Court.
Complaint at 2-3.
HealthSouth filed a motion to dismiss the complaint. HealthSouth
pointed out that McCready’s medical negligence claim was “subject to the medical
review panel process created by [Kentucky Revised Statutes] KRS 216C.020.”
Motion to Dismiss at 1. HealthSouth argued that the complaint could only be filed
after the statutory review process.
McCready filed a response and stated that the complaint and the
statutory medical review were simultaneously filed. McCready sought to hold the
medical negligence claim in “abeyance” pending resolution of the statutory
medical review process. Response at 1. Eventually, on November 15, 2018, the
Supreme Court held the Medical Review Panel Act, as codified in KRS Chapter
216C, was unconstitutional as violative of Section 14 of the Kentucky
Constitution.
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Thereafter, on December 4, 2018, HealthSouth filed an answer. The
record is then silent until January 3, 2020. On that date, a Notice to Dismiss for
Lack of Prosecution per Kentucky Rules of Civil Procedure (CR) 77.02(2) was
filed. The notice required McCready to show cause why the action should not be
dismissed for failure to prosecute it. Some four days later, on January 7, 2020,
HealthSouth filed a motion for summary judgment. HealthSouth argued that
McCready had failed to present expert testimony to support her medical negligence
claim and failed to diligently pursue the claim. In her response, McCready
maintained:
Ms. McCready has suffered ongoing medical issues
which have severely hampered the ability to gather up-to-
date information and complete the discovery responses.
Plaintiff’s counsel is now making efforts to complete
those responses with the assistance of Ms. McCready
who is now in a relatively stable condition. To the extent
any delay was attributable to Plaintiff’s counsel,
apologies are offered to both the Court and defense
counsel with the suggestion that it would be terribly
unfair to Ms. McCready to suffer dismissal of her claims
for any unintended delay on the part of counsel.
As to the facts of the case, Plaintiff anticipates
expert testimony will support Plaintiff’s claims of
negligence on the part of the Defendant and trial experts
will be identified in accordance with the scheduling
Orders of the Court. The medical records have already
been reviewed by at least one qualified expert whose
opinion was sought and received prior to filing this
action.
As herein noted, the gist of Plaintiffs’ claims, as
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evaluated by expert review, is that the Defendants did not
take proper professional precautions to prevent Ms.
McCready’s fall and that such failure on the part of the
Defendant constituted a deviation from the accepted
standard of care under the circumstances. The fall
resulted in physical injury to Ms. McCready and she asks
to be able to pursue her claim against the Defendant.
Genuine issues exist as to material facts, and the Plaintiff
respectfully requests that the motion for summary
judgment be overruled.
Response at 2.
The record reveals that the circuit court orally denied the motion for
summary judgment on January 17, 2020; however, the order was never reduced to
writing.1 Subsequently, an agreed scheduling order was entered on February 7,
2020. Therein, it was ordered that McCready should identify any expert witnesses
by June 1, 2020. The court also ordered that the action “REMAIN ON THE
DOCKET” in a February 11, 2020, order.
On October 7, 2020, HealthSouth filed a renewed motion for
summary judgment. HealthSouth argued that McCready had failed to identify any
expert to support her medical negligence claim. HealthSouth also pointed out that
the action was filed in January 2018 and that McCready was ordered to identify her
expert witness by June 1, 2020, but had failed to do so. To prevail upon her claim,
HealthSouth maintained that expert testimony was essential. HealthSouth also
1
As a general rule, a court speaks only through written orders entered upon the official record.
Kindred Nursing Centers Ltd. P’ship v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010).
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stated that McCready had taken no steps to prosecute its claim and that the circuit
court should dismiss it under CR 41.02(1).
In her response, McCready argued that she was waiting to schedule
the deposition of the physical therapist. McCready stated that the deposition was
initially hampered by the COVID-19 pandemic and later by HealthSouth’s failure
to provide dates of when the physical therapist would be available. In particular,
McCready asserted:
It is anticipated that more information regarding
the therapist’s treatment of [McCready] and his actions
will be discovered once [McCready] is permitted to
depose the therapist. With that information in hand,
[McCready] will then be in a position to have the
deposition reviewed, disclose expert testimony, and
move forward.
Response at 3.
By order entered October 21, 2020, the circuit court granted the
motion for summary judgment and also dismissed the action under CR 41.02. The
circuit court held, in relevant part:
Based upon a review of the record, including
[McCready’s] Response to the pending motion, hearing
arguments of counsel, and being otherwise sufficiently
advised, the Court concludes that [McCready] has failed
to actively and diligently prosecute her claims, including
failing to present any evidence from expert witness(es) in
support of her allegations of medical negligence.
Further, [McCready] did not present any affirmative
evidence in response to [HealthSouth’s] motion and the
attached affidavit from its own expert witness.
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Order at 3.
McCready then filed a CR 59.05 motion to vacate the October 21,
2020, order. In the motion, McCready argued:
The Plaintiff, Mary [McCready] appeared for her
deposition on March 10, 2020[,] and [HealthSouth] was
to provide for the therapist’s deposition. On or about
March 13, 2020, the Covid-19 pandemic shutdown
occurred and all proceedings were temporarily halted.
On March 30, 2020, Defense Counsel sent McCready’s
Counsel and [sic] email saying that, due to Covid-19
concerns, the defense anticipated looking at dates in June
or July, 2020[,] for the deposition of the therapist. It
must be noted that [HealthSouth]’s newly proposed
deposition dates of June or July would have exceeded the
June 1 disclosure deadline for [McCready] which had
been established by agreement before the onset of the
pandemic. Acting with the good faith belief that the
defense needed until at least June or July, 2020[,] in
which to produce the therapist for deposition, and giving
credence to the effects of the pandemic, Plaintiff’s
counsel had no objection to the deposition of the therapist
being delayed until June or July.
....
As to the delay between July and October, 2020,
[McCready’s] counsel states the pandemic shutdown was
still occurring in part which significantly impacted the
schedules of [McCready’s] counsel during that time, but
also the lives and schedules of others. Hence,
[McCready’s] counsel did not push for immediate
deposition dates from defense counsel at the end of June
or July but had the intention of cooperating with defense
counsel to arrange a mutually agreeable deposition date
for counsel and the therapist. If the circumstances were
reversed, and it were [McCready’s] counsel who had
agreed to produce a witness for deposition and then asked
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for additional time beyond the date of the scheduling
Order, [McCready’s] counsel would feel obligated to
comply with the terms and spirit of the agreement.
....
The second issue is whether [McCready] had
expert evidence. In [McCready’s] response to the motion
for summary judgment, [McCready] stated that a
consulting expert had reviewed the case and had given
opinions indicating negligence of the [HealthSouth] in
causing [McCready’s] fall. [McCready] did not produce
an expert report in its response because the expert was
still awaiting receipt of the therapist’s deposition before
rendering final conclusions and opinions. Further,
[McCready’s] counsel was not yet certain as to whether
an additional expert would be retained after deposing the
therapist. So that the Court is fully aware, [McCready]
attaches the affidavit of Kimberly Kafka, BSN, RN,
CMSRN, and her curriculum vitae confirming that she
had reviewed [McCready’s] medical records and had
rendered preliminary conclusions of negligence on the
part of the [HealthSouth] in January, 2018, before this
action was filed. The Affidavit of Nurse Kafka is
attached and herby incorporated in full by reference.
1) Nurse Kafka states in paragraph eight of her affidavit:
Based on my review of the records for the
reasons stated above, it was and still is my
opinion that the staff of Cardinal Hill
Hospital deviated from the accepted
standard of patient care in the care and
treatment of Ms. McCready and that such
deviation from the acceptable standard of
care was a direct and proximate result of
Ms. McCready’s fall and resulting injuries
sustained on January 21, 2017.
Nurse Kafka, in paragraph 11, states:
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It is anticipated that future information from
the person or persons with or near Ms.
[McCready] at the time of her fall would
enable me to finalize my conclusions and
opinions and to decide whether any
modification or supplementation of my
opinion is warranted.
Motion to alter, amend, or vacate at 2-5.
The circuit court denied McCready’s CR 59.05 motion by order
entered November 24, 2020. This appeal follows.
McCready contends that the circuit court erroneously rendered
summary judgment dismissing her medical negligence claim against HealthSouth.
McCready concedes the need for medical expert testimony. However, McCready
asserts that it was necessary for her to first take the deposition of the physical
therapist, whose negligent care caused the fall. McCready maintains that she “was
not in a position to have expert review and assessment of the [physical] therapist’s
actions without the therapist’s discovery disposition.” McCready’s Brief at 17.
And, as to the taking of the physical therapist’s disposition, McCready claims that
the COVID-19 pandemic prevented her from doing so and that HealthSouth failed
to provide the dates when the physical therapist would be available for deposition.
For these reasons, McCready argues that summary judgment was premature and
erroneous.
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Summary judgment is proper where there exists no material issue of
fact and movant is entitled to judgment as a matter of law. Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). In a medical
negligence case, our Supreme Court has held that “[w]hen it is evident that the
plaintiff has not secured a single expert witness and has failed to make any expert
disclosures after a reasonable period of time, there truly is a failure of proof and a
summary judgment motion is appropriate.” Blankenship v. Collier, 302 S.W.3d
665, 674 (Ky. 2010).2 The circuit court’s decision that a party has had an ample
opportunity to conduct discovery is reviewed for an abuse of discretion. Id. at 668.
The record reveals that McCready filed this medical negligence action
on January 19, 2018. At that time, McCready was statutorily mandated to submit
her action to the medical review panel, but the Supreme Court concluded the
Medical Panel Review Act was unconstitutional on November 15, 2018.
Thereafter, McCready was free to advance her action in the circuit court. Yet,
McCready failed to do so. In fact, the record is silent from December 4, 2018,
when HealthSouth gave notice of interrogatories, until December 3, 2020, when a
notice to dismiss for lack of prosecution was entered. The circuit court agreed to
2
There are two exceptions to this rule in medical negligence actions. Although not applicable to
this appeal, expert testimony is unnecessary where defendant essentially admits to negligence
and where the common-knowledge of a layperson is extensive enough to recognize the
negligence. Ashland Hosp. Corp. v. Lewis, 581 S.W.3d 572, 578 (Ky. 2019).
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allow the action to proceed upon McCready’s assurances that she would
reasonably pursue it. To that end, an agreed scheduling order was entered on
February 7, 2020. Therein, the court ordered McCready to identify any expert
witnesses by June 1, 2020.
This Court is aware of the devasting impact of the COVID-19
pandemic and understands that delays were caused thereby. And, it is reasonable
that COVID-19 restrictions prevented McCready from meeting the June 1, 2020,
deadline for identification of expert witnesses as set forth in the agreed order.
However, the renewed motion for summary judgment was not filed until October
7, 2020, and summary judgment was granted on October 21, 2020. Between the
scheduling order’s deadline of June 1, 2020, and October 21, 2020, the record
reveals that McCready failed to file a motion for extension of time to identify an
expert witness or to schedule the deposition of any witness, including the physical
therapist.
At the hearing on the motion for summary judgment, the circuit court
was troubled by McCready’s continued failure to prosecute the action and her
inability to provide a reasonable justification for her failure to identify an expert
witness. The circuit court believed that McCready had been give more than ample
time to conduct discovery and identify an expert witness. And, considering the
whole of the case, we are unable to conclude that the circuit court abused its
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discretion by concluding that McCready had ample opportunity to conduct
discovery before entry of summary judgment.
Additionally, McCready attempted to rectify her failure to identify an
expert witness by attaching an affidavit to her CR 59.05 motion to vacate summary
judgment. The affiant was a registered nurse, who opined that HealthSouth
breached sundry standards of care that caused McCready’s fall. We question
whether a registered nurse may properly testify as to a physical therapist’s standard
of care. Nevertheless, the law is well-settled that additional evidence may not be
submitted in a CR 59.05 motion after judgment. See Hopkins v. Ratliff, 957
S.W.2d 300, 301 (Ky. App. 1997).
In sum, we conclude that the circuit court properly rendered summary
judgment as McCready failed to identify an expert witness in her medical
negligence action against HealthSouth. Any remaining contentions of error are
moot or without merit.
For the foregoing reasons, the Order of the Fayette Circuit Court is
affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Edward L. Cooley Jeffery T. Barnett
Lexington, Kentucky Jessie L. Mullaney
Lexington, Kentucky
David C. Graves, III
Lexington, Kentucky ORAL ARGUMENT FOR
APPELLEE:
ORAL ARGUMENT FOR
APPELLANT: Jeffery T. Barnett
Lexington, Kentucky
Edward L. Cooley
Lexington, Kentucky
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