Opinion
2023-CA-1193-MR
08-30-2024
JEFFREY DAVIDSON APPELLANT v. LEXINGTON SURGICAL SPECIALISTS, P.S.C. D/B/A LEXINGTON SURGEONS; UNITED SURGICAL ASSOCIATES, P.S.C. D/B/A LEXINGTON SURGEONS; AND WALID A. ABOU-JAOUDE, M.D. APPELLEES
Briefs for Appellant: Amanda M. Lockaby Matthew T. Lockaby John M. Ghaelian Lexington, Kentucky Brief for Appellees Lexington Surgical Specialists, P.S.C. D/B/A/ Lexington Surgeons and Walid A. Abou-Jaoude, M.D.'S: Melanie S. Marrs David A. Trevey Robert R. May Lexington, Kentucky Brief for Appellee United Surgical Associates, P.S.C. Clay A. Edwards Caroline K. Bruenderman Louisville, Kentucky
NOT TO BE PUBLISHED
Appeal from Fayette Circuit Court Honorable Kimberly N. Bunnell, Judge Action No. 23-CI-02150
Briefs for Appellant: Amanda M. Lockaby Matthew T. Lockaby John M. Ghaelian Lexington, Kentucky
Brief for Appellees Lexington Surgical Specialists, P.S.C. D/B/A/ Lexington Surgeons and Walid A. Abou-Jaoude, M.D.'S: Melanie S. Marrs David A. Trevey Robert R. May Lexington, Kentucky
Brief for Appellee United Surgical Associates, P.S.C. Clay A. Edwards Caroline K. Bruenderman Louisville, Kentucky
Before: Caldwell, Combs, and Karem, Judges.
OPINION
COMBS, JUDGE
Jeffrey Davidson appeals an order of the Fayette Circuit Court dismissing his medical malpractice action for failure to comply with provisions of KRS 411.167 requiring that a certificate of merit be filed with his complaint. After our review, we affirm. The Kentucky General Assembly passed House Bill 429 in 2019. Codified at KRS 411.167, the provision reads, in pertinent part, as follows:
Kentucky Revised Statutes.
(1) A claimant commencing any [medical malpractice action] shall file a certificate of merit with the complaint in the court in which the action is commenced.
(2) "Certificate of merit" means an affidavit or declaration that:
(a) The claimant has reviewed the facts of the case and has consulted with at least one (1) expert qualified pursuant to the Kentucky Rules of Civil Procedure and the Kentucky Rules of Evidence who is qualified to give expert testimony as to the standard of care or negligence and who the claimant or his or her counsel reasonably believes is knowledgeable in the relevant issues involved in the particular action, and has concluded on the basis of review and consultation that there is reasonable basis to commence the action;
(b) The claimant was unable to obtain the consultation required by paragraph (a) of this subsection because a limitation of time established by KRS Chapter 413 would bar the action and that the consultation could not reasonably be obtained before that time expired. An affidavit or declaration executed pursuant to this paragraph shall be supplemented by an affidavit or declaration
pursuant to paragraph (a) of this subsection or paragraph (c) of this subsection within sixty (60) days after service of the complaint or the suit shall be dismissed unless the court grants an extension for good cause; or
(c) The claimant was unable to obtain the consultation required by paragraph (a) of this subsection because the claimant or his or her counsel had made at least three (3) separate good-faith attempts with three (3) different experts to obtain a consultation and that none of those contacted would agree to a consultation; so long as none of those contacted gave an opinion that there was no reasonable basis to commence the action. ....
(4) A certificate of merit is not required where the claimant intends to rely solely on one (1) or more causes of action for which expert testimony is not required, including claims of res ipsa loquitur and lack of informed consent, in which case the complaint shall be accompanied by an affidavit or declaration that no cause of action is asserted for which expert testimony is required.
On July 5, 2023, Davidson filed a lawsuit against Lexington Surgical Specialists, P.S.C., d/b/a Lexington Surgeons; United Surgical Associates, P.S.C., also d/b/a Lexington Surgeons (collectively Lexington Surgeons); and Walid A. Abou-Jaoude, M.D. Davidson alleged that he was a patient of Lexington Surgeons and Dr. Abou-Jaoude when he consented to a surgical procedure (a splenectomy to remove his spleen) more than twenty years earlier. He alleged that on or after July 6, 2022, he learned that Lexington Surgeons and Dr. Abou-Jaoude had failed to inform him that surgical clips would be used as part of that procedure. He contended that the defendants "failed to provide information that would allow [him], a reasonable individual, to have a general understanding of the surgical procedure" -- in particular, by failing to inform him that surgical clips would be permanently implanted in his body. He alleged that he had suffered "great pain of body and anguish of mind" as a result of the use of the surgical clips. Davidson's complaint did not include the certificate of merit described in KRS 411.167(2)(a). Instead, relying upon the provisions of KRS 411.167(4), he included in his complaint a declaration that "no cause of action is asserted for which expert testimony is required."
Lexington Surgeons and Dr. Abou-Jaoude filed a motion to dismiss for Davidson's failure to file a certificate of merit in accordance with the provisions of KRS 411.167(1) and (2). Some days later, Lexington Surgeons filed an answer.
In responding to the motion to dismiss, Davidson argued that a certificate of merit was not required because his cause of action -- based solely on lack of informed consent -- did not require expert testimony. In the alternative, Davidson contended that no part of the statute was enforceable because it violated Section 14 of the Kentucky Constitution. In the event that either alternative should be unavailing, Davidson argued that he was entitled to an extension of time to file the certificate of merit. He contended that the circuit court was authorized to grant him an extension of time pursuant to the provisions of our CR 6.02(b) for "excusable neglect" in failing initially to file the certificate or to grant him leave to file an amended complaint to include the certificate of merit pursuant to CR 15.02. Following a hearing, the trial court dismissed the action with prejudice. It found no cause to grant Davidson an extension of time in order to comply with the statute's requirement. This appeal followed.
Kentucky Rules of Civil Procedure.
"A motion to dismiss for failure to state a claim upon which relief may be granted 'admits as true the material facts of the complaint.'" Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (quoting Upchurch v. Clinton Cnty., 330 S.W.2d 428, 429-30 (Ky. 1959)). A motion to dismiss cannot be granted "unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved[.]" Pari-Mutuel Clerks' Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977). "Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo." Fox, 317 S.W.3d at 7.
On appeal, Davidson argues that the statutory provision requiring a certificate of merit in medical negligence cases is unconstitutional. He also argues that his claim is wholly based on a failure to obtain informed consent and that, therefore, it is exempt from the requirement for a certificate of merit. Finally, he argues that the court abused its discretion by failing to grant his request for an extension of time to file the certificate or to amend his complaint to include one.
We must decline to address Davidson's argument that the provisions of KRS 411.167 are unconstitutional. Before a court may entertain a constitutional challenge to a statute, there must be strict compliance with the notice requirements of KRS 418.075. Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008). That statute provides as follows:
In any appeal to the Kentucky Court of Appeals or Supreme Court or the federal appellate courts in any forum which involves the constitutional validity of a statute, the Attorney General shall, before the filing of the appellant's brief, be served with a copy of the pleading, paper, or other documents which initiate the appeal in the appellate forum. This notice shall specify the challenged statute and the nature of the alleged constitutional defect.KRS 418.075(2).
While Davidson sent a copy of his notice of appeal to Attorney General Daniel Cameron by email, the notice failed to specify the nature of the constitutional defect alleged to be inherent in the provisions of KRS 411.167. Our courts refuse to address arguments that a statute is unconstitutional unless the notice provisions are fully satisfied. Couch v. Commonwealth, 686 S.W.3d 172 (Ky. 2024).
In the alternative, Davidson contends that KRS 411.167 "unequivocally provides that a certificate of merit is unnecessary" when a patient files a medical malpractice action that does not require the introduction of expert testimony. He notes that the statute specifically designates a lack of informed consent action as one "where expert testimony is not required." (Emphasis added.) We disagree with Davidson's analysis of the issues.
"[A]s an aspect of proper medical practice, physicians have a general duty to disclose to their patients in accordance with accepted medical standards the [substantial] risks and benefits of the treatment to be performed." Sargent v. Shaffer, 467 S.W.3d 198, 206 (Ky. 2015), overruled on other grounds by Univ. Med. Ctr., Inc. v. Shwab, 628 S.W.3d 112 (Ky. 2021). KRS 304.40-320 provides the standard for informed consent, in pertinent part, as follows:
In any action brought for treating, examining, or operating on a claimant wherein the claimant's informed consent is an element, the claimant's informed consent shall be deemed to have been given where:
(1) The action of the health care provider in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with the accepted standard of medical or dental practice among members of the
profession with similar training and experience; and
(2) A reasonable individual, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedure and medically or dentally acceptable alternative procedures or treatments and substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures.. . .KRS 304.40-320(1)-(2).
The subsections of this statute are generally referred to as pertaining to (1) process and (2) content. "[T]o meet the requirements of the first subsection the [patient] must show that the process by which the medical defendants obtained her consent did not comply with 'accepted standards' within the medical profession." Shwab, 628 S.W.3d at 121. Davidson concedes that expert testimony is necessary to establish that a physician failed to comply with the provisions of KRS 304.40-320(1) as to process; i.e., the accepted standards of medical practice.
However, as the basis for his action, Davidson relies upon the second prong of the standard -- the content of the information provided to him for the purposes of obtaining informed consent for the surgery. Citing the court's holding in Argotte v. Harrington, 521 S.W.3d 550 (Ky. 2017), he contends that expert testimony is not necessary to demonstrate a violation of KRS 304.40-320(2). Davidson observes that the Supreme Court of Kentucky held in Argotte that "whether the physician's notice to the patient would provide 'a reasonable individual' with a 'general understanding of the procedure and [the] substantial risk and hazards inherent in the proposed treatment' is a question 'perfectly suited for application by jurors of ordinary competence, education, and intellect' without the need for expert testimony." 521 S.W.3d at 556 (quoting Sargent, 467 S.W.3d at 209). Significant to this case, this holding was expressly overruled by the Supreme Court of Kentucky in University Medical Center, Inc. v. Shwab, 628 S.W.3d at 128-29.
In Shwab, the court observed as follows:
In Argotte, a 4-3 decision, the majority stated that proving a failure to comply with KRS 304.40-320 "requires an expert opinion only as needed to establish 'whether the 'risks and hazards' involved [in the plaintiff's claim] are among those 'recognized among other health care providers who perform similar treatments or procedures.'" 521 S.W.3d at 556 (quoting KRS 304.40-320(2)). ....
As Justice Keller explained in a separate opinion (joined by two other Justices) in Argotte, KRS 304.40320(2) expressly states that the risks to be disclosed must have been "substantial risks." 521 S.W.3d at 562 (Keller, J., concurring in part and dissenting in part). The dissenters did not believe "a jury of laypersons, without guidance from providers who perform similar treatments or procedures, i.e., expert witnesses, can independently determine whether a risk is substantial." Id. Indeed,
determining whether a particular risk is substantial is not only a matter best addressed by the medical community and therefore an element requiring expert testimony, but that is what a plain reading of KRS 304.40-320(2) requires, i.e., "substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures." To the extent that Sargent and Argotte suggest that the substantiality of a risk is a jury question that does not depend on medical evidence those holdings are overruled.(Emphasis added.)
Thus, the circuit court did not err by concluding that provisions of the informed consent statute require that Davidson's claim (based on a failure to disclose to him the doctor's use of permanent surgical clips as part of his surgery) be supported by expert testimony establishing that this aspect of the procedure presented a recognized and substantial risk. Davidson was mistaken as a matter of law in his belief that "no cause of action is asserted for which expert testimony is required." Consequently, he cannot rely upon the provisions of KRS 411.167(4) to excuse his failure to file the required certificate of merit.
Moreover, "a negligence action requires proof of: (1) a duty on the part of the defendant; (2) a breach of that duty; and (3) a consequent injury, which consists of actual injury or harm, plus legal causation linking the defendant's breach with the plaintiff's injury." Hugenberg v. West American Ins. Company/Ohio Cas. Group, 249 S.W.3d 174, 181 (Ky. App. 2006). Negligence must be established by medical or expert testimony unless the negligence and injurious results are so apparent that laymen with a general knowledge would have no difficulty in recognizing them. Saint Elizabeth Medical Center, Inc. v. Arnsperger, 686 S.W.3d 132, 138 (Ky. 2024) (citing Johnson v. Vaughn, 370 S.W.2d 591 (Ky. 1963)).
As a matter of law, expert testimony would be required to show that the injuries of which Davidson now complains were caused by the information that Dr. Abou-Jaoude allegedly failed to provide when securing his consent for the procedure. Expert testimony was required to show that the injuries constituted a "substantial risk" that was "inherent in the proposed treatment" and that was "recognized among other health care providers who perform similar treatments or procedures." That is not an issue for a jury to decide without expert testimony. Davidson could not have shown that Dr. Abou-Jaoude failed to meet the requirements of the second prong of KRS 304.40-320 without evidence provided by an expert witness.
The intent of the legislature in enacting the provisions of KRS 411.167 was to protect medical professionals from having to defend themselves against frivolous or "nuisance" lawsuits. McMillin v. Sanchez, 686 S.W.3d 145 (Ky. 2024). The language is clear and unequivocal: a plaintiff commencing a medical malpractice action must file a certificate of merit with his complaint except where he intends to rely solely on a cause of action for which expert testimony is not required. We are compelled to assume that the General Assembly meant exactly what it said and said exactly what it meant. Univ. of Louisville v. Rothstein, 532 S.W.3d 644 (Ky. 2017).
We must also presume that the legislature is aware of the state of the law when it enacts a statute. Maysey v. Express Services, Inc., 620 S.W.3d 63, 71 (Ky. 2021). From the exceptions provided by the legislation, it is clear that the General Assembly was aware that our case law holds that because of their unique nature, some medical malpractice cases do not require expert testimony. The doctrine of res ipsa loquitur applies in medical malpractice cases where "any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care." Arnsperger, 686 S.W.3d at 138 (citing Perkins v. Hausladen, 828 S.W.2d 652, 654-55 (Ky. 1992)). Under those circumstances, expert testimony is unnecessary.
Similarly, a failure to adequately inform the patient of a substantial risk inherent in the procedure requires no expert testimony where the failure is so apparent that laymen may easily recognize it or infer it from common knowledge. Keel v. St. Elizabeth Medical Center, 842 S.W.2d 860 (Ky. 1992). Where a layman can conclude from common experience that a particular injury has not occurred absent some negligence, or where a patient has been provided no information whatsoever concerning any possible hazard of a procedure the resulting medical malpractice action is not likely a "nuisance" one. By enacting the provisions of KRS 411.167, the General Assembly did not intend to require expert testimony where none is required by our caselaw. Nor did it intend to remove the requirement entirely from our jurisprudence by enacting section (4).
Finally, we consider whether the circuit court abused its discretion by failing to grant Davidson's request for an extension of time to file the certificate of merit or to amend his complaint to include one. We conclude that the court's order cannot be reversed on either basis.
With the exception of statutory proceedings, "the Rules of Civil Procedure govern all civil actions within the Court of Justice." McCann v. Sullivan University System, Inc., 528 S.W.3d 331, 333 (Ky. 2017). Consequently, we interpret the provisions of KRS 411.167 in conjunction with CR 6.02. CR 6.02 governs enlargement of time and provides that a trial court may, in its discretion, permit an extension of the time for action when the failure to act was due to excusable neglect. "Excusable neglect" generally refers to one's failure to take a proper step at a proper time owing to some unexpected or unavoidable hindrance or accident. BLACK'S LAW DICTIONARY (11th ed. 2019). The term is also understood to refer to an act of a reasonably prudent person under the same circumstances. Conlan v. Conlan, 293 S.W.2d 710 (Ky. 1956) (citing Sieb S Hatcheries, Inc. v. Lindley, 13 F.R.D. 113 (W.D. Ark. 1952)).
We are not persuaded that Davidson's failure to file a certificate of merit in this case constitutes excusable neglect. His declaration that the action was not one that required expert testimony was not the result of an unexpected or unavoidable hindrance or accident. On the contrary, it was deliberate and intentional but not necessarily or arguably the act of a reasonably prudent person under the same circumstances. Prudence instead would require reasonable compliance with statutory requirements rather than making creative assumptions. Mistaken legal advice or a mistake of law does not qualify as excusable neglect as a matter of law.
The circuit court did not err by denying Davidson's motion to amend his complaint. CR 15.01 provides that a party may amend his complaint once, as a matter of course, at any time before a responsive pleading is served. Otherwise, a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave is to be granted when justice so requires.
In its recent analysis of the KRS 411.167, the Supreme Court of Kentucky concluded that plaintiffs' strict compliance with its provisions is required. McMillin, 686 S.W.3d 145. Consequently, we conclude that justice did not require that Davidson be granted leave to file an amended complaint merely because he failed to comply with the express requirements of the statute.
Furthermore, we note that Davidson never tendered a proposed amended complaint that conformed to the requirements of the statute. Without knowing the content of the proposed amendment, the circuit court could not properly assess whether or not to grant the motion to amend. The court did not err by failing to grant Davidson's motion to amend the complaint.
We affirm the order of dismissal of the Fayette Circuit Court.
CALDWELL, JUDGE, CONCURS.
KAREM, JUDGE, CONCURS IN PART AND DISSENTS IN PART AND FILES SEPARATE OPINION.
KAREM, JUDGE: With one exception, I agree with the majority's resolution of this case. I do not agree that Davidson's case should be dismissed for failure to file a certificate of merit to initiate his claim.
The majority provides an excellent overview of the law and application of the relatively newly-promulgated statute governing the requirement of a certificate of merit in medical malpractice cases, KRS 411.167. However, in contrast to the majority, I believe this case falls squarely within the exception allowed by KRS 411.167(4):
A certificate of merit is not required where the claimant intends to rely solely on one (1) or more causes of action for which expert testimony is not required, including claims of res ipsa loquitur and lack of informed consent, in which case the complaint shall be accompanied by an
affidavit or declaration that no cause of action is asserted for which expert testimony is required.
In the case sub judice, Davidson avers that the doctors failed to inform him that surgical clips would be left permanently inside his body. "It is well settled in this jurisdiction when considering a motion to dismiss under [Kentucky Rules of Civil Procedure (CR) 12.02], that the pleadings should be liberally construed in a light most favorable to the plaintiff and all allegations taken in the complaint to be true." Mims v. Western-Southern Agency, Inc., 226 S.W.3d 833, 835 (Ky. App. 2007) (citing Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky. App. 1987)). Thus, assuming Davidson was never informed of the permanent placement of surgical clips during his operation, this case falls outside the realm of the type of nuisance case KRS 411.167 was intended to root out. Instead, it falls under the exception to requiring a certificate of merit under Keel v. St. Elizabeth Medical Center, 842 S.W.2d 860 (Ky. 1992), where a layman can conclude from common experience that a particular injury has not occurred absent some negligence, or where a patient has been provided no information whatsoever concerning any possible hazard of a procedure. As such, I would reverse the trial court and allow Davidson to go forward with his claim.