Randy Lewis v. Velupillai Wignakumar ( 2020 )

RENDERED: AUGUST 14, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-000114-MR
RANDY LEWIS APPELLANT
APPEAL FROM BOURBON CIRCUIT COURT
v. HONORABLE JEREMY MATTOX, JUDGE
ACTION NO. 16-CI-00247
DR. VELUPILLAI WIGNAKUMAR APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
ACREE, JUDGE: Appellant, Randy Lewis, appeals the Bourbon Circuit Court’s
order granting summary judgment for Appellee, Dr. Velupillai Wignakumar (“Dr.
Kumar”). After careful review, we affirm.
BACKGROUND
According to his allegations, on December 13, 2015, Lewis visited
Bourbon Community Hospital to address severe pain he was experiencing in his
stomach/abdomen. He was examined by Dr. Dale, the hospital’s treating
physician, who ordered a CT scan. Upon a review of the CT scan, Dr. Dale
diagnosed Lewis with appendicitis and scheduled surgery.
The following day, Dr. Kumar performed a laparoscopic
appendectomy. According to Lewis, Dr. Kumar explained that his appendix burst
during surgery and he cleaned up all the tissue he could. However, a biopsy of the
tissue revealed that it was not appendix tissue. At his follow-up visit, on January
16, 2016, Lewis continued to complain about pain in his stomach/abdomen. Dr.
Kumar prescribed him Lortab and antibiotics.
Still experiencing severe pain, Lewis visited his primary care
physician, Dr. Larry Ertel, who ordered blood work. The results showed no signs
of infection, and he was referred to Dr. Rebecca Bartee. Because of the
appendectomy, Dr. Bartee ordered a CT scan. However, the scan did not clearly
show the part of Lewis’s body where surgery was performed. Dr. Bartee then
ordered an ultrasound of Lewis’s gallbladder.
On February 27, 2016, Lewis visited the emergency room seeking
relief from continued pain in his stomach/abdomen. A third CT scan was ordered.
-2-
This scan showed Lewis’s appendix still intact. The following day, Dr. Daniel
Kennedy, a general surgeon from the University of Kentucky, successfully
removed Lewis’s appendix. According to Lewis’s allegations, Dr. Kennedy said
his appendix was never disturbed by Dr. Kumar, and that “it is common medical
procedure” to perform an open appendectomy, “if you cannot find the appendix by
using laparoscopic procedures.”
On December 7, 2016, Lewis filed a pro se complaint against Dr.
Kumar. The circuit court construed Lewis’s complaint as alleging: (1) a failure by
Dr. Kumar to provide the proper standard of care during surgery; and (2) a failure
to inform him, during his follow-up visit, of the failure to remove his appendix.
Additionally, Lewis stated the facts “clearly represented themselves and a medical
expert was not necessary to prove his case.”
After filing his pro se complaint, Lewis obtained counsel who moved
for leave to amend the complaint. The circuit court granted the motion. However,
no amended complaint was filed.
Dr. Kumar served Lewis his first set of interrogatories and requests
for production of documents on December 30, 2016, but nearly a year elapsed
before Lewis served complete responses. In the interim, Dr. Kumar had agreed to
an extension of time to respond, but Lewis did not adhere to the new deadline. Dr.
-3-
Kumar then moved to dismiss the action. See CR1 37.04(1); CR 37.02(2)(c).
Because Lewis tendered responses just before the hearing, the circuit court denied
the motion to dismiss but subsequently entered other appropriate orders. Id.
Among them was an order requiring Lewis to pay $250 toward Dr. Kumar’s
attorney fees for the effort of compelling discovery. The court also ordered Lewis
to amend his discovery responses within thirty (30) days after determining they
were incomplete or non-responsive. Most significantly, when the issue arose
whether Lewis needed a medical expert to establish the standard of care, the circuit
court held that Lewis “has not yet precluded himself from the disclosure of expert
witnesses. CR 26.02.” (Record (R.) at 103.) The circuit court allowed Lewis until
October 8, 2018, to identify his expert witnesses. He never identified an expert.
Dr. Kumar moved for summary judgment. He noted that the only
evidence in the record was Lewis’s response to discovery. He argued that the
evidence of record failed to establish, or to create a genuine issue that Lewis could
establish, a standard of care because he identified no medical expert to testify to
that standard.
The circuit court concluded that the doctrine of res ipsa loquitur did
not apply, nor did Dr. Kumar “make[] admissions of a technical character from
which one could infer that he or she acted negligently.” (Summary Judgment
1
Kentucky Rules of Civil Procedure.
-4-
(quoting Andrew v. Begley, 203 S.W.3d 165, 171 (Ky. App. 2006).) The court
then ruled as follows:
The Court has set out herein that the technical, medical
aspects, and objective standard of care, require expert
testimony. To date, [Lewis] has had nearly two years to
disclose experts for this case and has not done so. In
August, this Court denied [Dr. Kumar’s] Motion for
Summary Judgment and afforded [Lewis] an additional
60 days to disclose experts. With that being said, the
Court can no longer allow this case to continue.
The court then granted summary judgment. This appeal followed.
STANDARD OF REVIEW
First, the circuit court has the discretion to decide whether expert
testimony is necessary. Green v. Owensboro Medical Health System, Inc., 231
S.W.3d 781, 783 (Ky. App. 2007). We will not disturb the exercise of that
discretion unless abused. Id.
Second, “[t]he proper standard of review on appeal when a trial judge
has granted a motion for summary judgment is whether the record, when examined
in its entirety, shows there is ‘no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law.’” Hammons v.
Hammons, 327 S.W.3d 444, 448 (Ky. 2010) (quoting CR 56.03). “Because
summary judgment does not require findings of fact but only an examination of the
record to determine whether material issues of fact exist, we generally review the
grant of summary judgment without deference to either the trial court’s assessment
-5-
of the record or its legal conclusions.” Id. (citing Malone v. Ky Farm Bur. Mut.
Ins. Co., 287 S.W.3d 656, 658 (Ky. 2009)).
ANALYSIS
Under Kentucky law, “[m]edical malpractice cases . . . usually require
expert medical testimony to establish three things: ‘the applicable standard of care,
any breach that occurred and any resulting injury to the plaintiff.’ Blankenship v.
Collier, 302 S.W.3d 665, 667 (Ky. 2010).” Chamis v. Ashland Hosp. Corp., 532
S.W.3d 652, 656 (Ky. App. 2017). However, in some medical malpractice
scenarios, expert testimony is not needed because the res ipsa loquitor doctrine
allows negligence to be inferred from medical evidence in the record showing the
risk of injury was extraordinary, its occurrence was within the defendant’s
exclusive control, and the plaintiff did not contribute to his own injury. Andrew,
203 S.W.3d at 170; Perkins v. Hausladen, 828 S.W.2d 652, 655 (Ky. 1992).
Lewis’s problem is that he failed to compile a record of medical
evidence from which Dr. Kumar’s negligence could be inferred. As the circuit
court said: “The only documents obtained by this Court are Plaintiff’s Responses
to Interrogatories and Requests for Production of Documents. No depositions,
affidavit [sic], or medical records are in the Record to argue Defendant admitted to
negligence.” (R. at 133.) “After reviewing the Record,” the circuit court found
“that any layman would not be competent to pass judgment based on common
-6-
experience that [Dr. Kumar] did or did not act within the proper standard of care.
Surgical procedures are technical in nature, and no lay witness can testify whether
[Dr. Kumar] acted in accordance with a reasonable medical professional in the
same circumstance.” (R. at 132.) The circuit court concluded that the case could
not go forward without expert medical testimony.2
Requiring expert testimony is wholly within the trial court’s
discretion. Green, 231 S.W.3d at 783. Consequently, this Court will reverse only
upon finding the trial court abused its discretion. Id. Given this record, we can
find no abuse of discretion. Without evidence of the standard of care, a breach, or
causation – each an element of his medical negligence cause of action – Lewis did
not create a genuine issue as to several material facts necessary to prove his case.
That entitled Dr. Kumar to summary judgment.
“[A] party opposing a properly supported summary judgment motion
cannot defeat it without presenting at least some affirmative evidence showing that
there is a genuine issue of material fact for trial.” Steelvest, Inc. v. Scansteel Serv.
Ctr., Inc., 807 S.W.2d 476, 482 (Ky. 1991). “[W]here a sufficient amount of time
2
Lewis did submit his own short affidavit after the hearing on Dr. Kumar’s first summary
judgment motion, but before it was denied. The affidavit included his statements: (1) that Dr.
Kumar performed a “failed appendectomy” but failed to inform him that it “was botched”; (2)
attributing the pain he experienced over the following two months to Dr. Kumar’s “failed
appendectomy”; and (3) that his appendix was removed two months later after Dr. Kumar
performed his operation. This Court considered this affidavit in analyzing whether it was an
abuse of the circuit court’s discretion to require expert testimony to establish that Dr. Kumar, in
fact, performed a “failed appendectomy” on Lewis.
-7-
has expired and the plaintiff has still ‘failed to introduce evidence sufficient to
establish the respective applicable standard of care,’ then the defendants are
entitled to summary judgment as a matter of law.” Blankenship, 302 S.W.3d at
668 (quoting Green, 231 S.W.3d at 784).
Here, the circuit court made clear Lewis’s need to identify a medical
expert who would testify to the elements of his claim. When, after nearly two
years, Lewis failed to do so, the case was ripe for summary judgment.
Although Lewis points to the allegations in his complaint that Dr.
Kumar “botched” the operation, that is not enough. “[P]leadings are not
evidence[.]” Educ. Training Sys., Inc. v. Monroe Guar. Ins. Co., 129 S.W.3d 850,
853 (Ky. App. 2003). We cannot ascribe to Lewis’s allegations – which expressed
his opinion as to the ultimate fact of liability – the evidentiary value necessary to
create a genuine issue of material fact as to each element of his negligence claim.
Also, we are not persuaded by Lewis’s citation to Sargent v. Shaffer,
467 S.W.3d 198 (Ky. 2015) and Argotte v. Harrington, 521 S.W.3d 550 (Ky.
2017). These cases are inapposite because both are informed consent cases. In
both, the Kentucky Supreme Court analyzed Kentucky’s informed consent statute,
KRS3 304.40-320, and held that expert testimony is not required to prove whether
a “physician’s notice to the patient would provide a reasonable individual with a
3
Kentucky Revised Statutes.
-8-
general understanding of the procedure and . . . [the] substantial risks and hazards
inherent in the proposed treatment.” Argotte, 521 S.W.3d at 556 (internal
quotation marks and citation omitted). That question, said the Court, is “perfectly
suited for application by jurors of ordinary competence, education, and intellect
without the need for expert testimony.” Id. (internal quotation marks and citation
omitted). But this case is not about informed consent.
We also reject Lewis’s argument that his injuries result from Dr.
Kumar’s “ordinary negligence” and, therefore, expert testimony is not required.
We disagree. Lewis’s cause of action is clearly one for medical negligence and
cannot be couched otherwise to defeat the requirement of expert proof.
CONCLUSION
For the foregoing reasons, we affirm the Bourbon Circuit Court’s
order granting summary judgment for Dr. Kumar.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
James Paul Brannon Benny C. Epling, II
Paris, Kentucky William Robert Long, Jr.
Lexington, Kentucky
-9-