Opinion
NO. 2017-CA-000254-MR
02-01-2019
CALEB KNIPP, A MINOR, BY AND THROUGH HIS NEXT FRIEND, ANGELA KNIPP APPELLANT v. ASHLAND HOSPITAL CORPORATION D/B/A KING'S DAUGHTERS MEDICAL CENTER APPELLEE
BRIEFS FOR APPELLANT: Mike Breen Bowling Green, Kentucky Sharon Morgan Brian D. Ketterer Baltimore, Maryland Kevin C. Burke Jamie K. Neal Louisville, Kentucky ORAL ARGUMENT FOR APPELLANT: Kevin C. Burke Louisville, Kentucky BRIEF FOR APPELLEE: Ashley W. Ward Kristen K. Orr Emily L. Startsman Lexington, Kentucky ORAL ARGUMENT FOR APPELLEE: Ashley W. Ward Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOYD CIRCUIT COURT
HONORABLE GEORGE W. DAVIS, III, JUDGE
ACTION NO. 11-CI-01127 OPINION
REVERSING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND LAMBERT, JUDGES. ACREE, JUDGE: Caleb Knipp, a minor, by and through his next friend, Angela Knipp, appeals from the Boyd Circuit Court's January 4, 2017 order and judgment granting summary judgment in favor of Ashland Hospital Corporation d/b/a King's Daughters Medical Center (KDMC) in a labor and delivery medical negligence action filed by Knipp. Because we hold that the circuit court incorrectly found that Knipp could not prove causation against KDMC, we reverse and remand.
FACTS AND PROCEDURE
On March 21, 2009, Angela Knipp went to KMDC to give birth to her child, Caleb. The attending OB/GYN, Shawn Gorden, delivered Caleb. KDMC labor and delivery nurse, Mary Ellen Tussey, aided Dr. Gorden. The delivery was not going well and Dr. Gorden elected to use a vacuum extractor. He asked for the device and Nurse Tussey, without discussion, either handed it to him or laid it on the table. Dr. Gorden attempted to remove Caleb from the womb using the vacuum but was unsuccessful. It was necessary to deliver Caleb by caesarean section. Caleb sustained severe and permanent brain injuries.
Caleb, by and through his next friend and mother, Angela, filed suit against Dr. Gorden and KDMC on November 7, 2011. The parties engaged in extensive discovery and motion practice over the next several years. The circuit court set numerous deadlines, including deadlines for disclosing and deposing expert witnesses. The matter was set for trial in February 2017.
Knipp disclosed several experts well before the court's deadline of December 15, 2013. These experts included Nurse Heidi Shinn and Dr. Mark Landon. These and many other witnesses were deposed, along with Dr. Gorden and Nurse Tussey.
Dr. Gorden testified he had worked with Nurse Tussey on many prior occasions and thought highly of her work. He considered his work with KDMC's nurses a "team effort," and agreed that if a nurse observed him or any physician engaging in an improper medical decision, he would expect the nurse to intervene. KDMC did as well. Its hospital policy includes a "chain of command" dispute resolution process. That process recognizes the nurse's independent duty to the patient and unborn baby and is intended to ensure "safe, quality patient care that is a collaborative effort between physician and nursing staff."
The first step in the chain of command process is for the nurse to address any issue directly with the physician. Dr. Gorden agreed with KDMC's chain of command policy, testifying:
Q. And would you agree that if a nurse believes that something a physician is doing or not doing is not the correct course of action, that the nurse should be empowered to invoke the chain of command?(Gorden depo., p. 107). Nurse Tussey also acknowledged the chain of command process, stating:
A. Yes, I do.
Q. And you would agree with me that if a nurse believes that something is being done or not being done that's endangering a patient, the nurse has a duty to begin the chain of command?(Tussey depo., p. 87).
A. Yeah.
Knipp's nursing expert, Heidi Shinn, confirmed that "the nurse has a duty to the patient and unborn baby, not to make friends with the doctor." Nurse Shinn testified that the nursing standard of care requires that labor and delivery nurses, like Nurse Tussey, know the indicators that suggest the need for use of a vacuum. Nurse Shinn testified multiple times that, under the circumstances, Nurse Tussey should have withheld the vacuum from Dr. Gorden and her failure to do so resulted in a breach of the standard of care. Specifically, Nurse Shinn testified:
I believe that Nurse Tussey should have declined to give the vacuum to Dr. Gorden until it was established what the actual station of the fetal head was. And at that point she could have offered to redose the epidural, call anesthesia, allow for that passive rotation and descent . . . where the mother is allowed to rest and the baby passively descends further into the pelvis until it was a more safe approach.She further testified that, if Dr. Gorden had nonetheless insisted on the vacuum extractor, Nurse Tussey should have gone up KDMC's chain of command.
Dr. Mark Landon, Knipp's expert in obstetrics and physician standard of care, agreed that Nurse Tussey had an independent duty to question Dr. Gorden's use of the vacuum in this instance. Dr. Landon also agreed that Nurse Tussey should know that "a vacuum applied at zero station could carry significant risk and question a physician, particularly when there's not a bona fide indication for the vacuum." (Landon depo., p. 27). Dr. Landon testified that, if Dr. Gorden had insisted on using the vacuum, Nurse Tulley should have invoked KDMC's chain of command to prevent it:
Q. And if the OB says no, do you believe the nurse should then use the chain of command there?(Landon depo., p. 92).
A. Well, I think if you're talking about zero station and no indication, my answer would be yes.
Dr. Landon testified, unequivocally, that "there was no indication for the vacuum, let alone a vacuum at zero station with its attendant risks," and the "ill-advised vacuum attempt, more likely than not, caused [Caleb's] intracranial hemorrhage," leading to his injuries. Dr. Michael Noetzel, a pediatric neurologist, agreed with Dr. Landon's assessment. Dr. Noetzel also testified that the vacuum caused Caleb's injuries. He said, "the hemorrhage was a result of mechanical forces. So, it was a traumatic injury. And that it was acquired during delivery. In my view, most likely as a result of the use of the vacuum extraction."
Dr. Landon clarified that he intended, generally, to testify as to the medical standard of care and that Dr. Gorden breached that standard by utilizing the vacuum when it was not indicated. He testified in deposition:
Q. Did you go over the expert disclosure that was filed in this case with regard to your opinions?
A. No. We just discussed, you know, whether at the end of the day I was going to give opinions on the nursing staff. And I said, you know, that I really didn't think I
was going to do that. It wasn't my impression originally; but if asked, I mean, I certainly could tell you what I think regarding the nurse's role vis-à-vis the vacuum extraction. . . . But at the end of the day, essentially, I would just leave that up to a nursing expert.Dr. Landon also stated:
Q. Why? You are qualified to testify regarding the nursing standard of care, aren't you?
A. I know. I just - I just at the time felt that, you know, a nurse would be in a better position regarding that specific question as to the vacuum extraction.
Q. Before you received Nurse Heidi Shin's deposition, had you reached any opinions regarding the nursing care in this case?
A. Yes. I mean, I think originally when I discussed the case with Mr. Hinson, I - he asked me about the nursing staff and I said specifically that I thought that the nurses should have at least questioned the use of the vacuum at zero station in this circumstance. I mean, that was my concern about the nursing care.
Q. [I]s it your intention to come to trial and offer opinions with respect to the nurses speaking up and questioning application of the vacuum?
A. No. I think he told you I'm not going to do that, and I just thought it was perhaps too narrow of a focus . . . ; so that I thought I would just leave that to a nursing expert to talk about what a nurse should or should not have done under the circumstances.
. . . .
Q. And so, if an OB declined the advice of a nurse, is it within the OB's clinical judgment to proceed as he or she sees fit with that delivery?
A. Not in every circumstance. So in this circumstance, I'm not sure the nurse could have stopped it, per se, if she decided to hand the vacuum and he had the vacuum in hand and she's now asking and he just, you know - I mean, that's the issue here. . . . And that's precisely why I said I would leave that up to a nurse as to whether they would hand the vacuum or not.
In late 2016, KDMC filed a motion for summary judgment, arguing Knipp failed to elicit expert testimony establishing that Nurse Tussey's failure to prevent the application of the vacuum caused Caleb harm. Within a few days of receiving KDMC's motion, Knipp obtained an affidavit from Dr. Landon on this issue. Dr. Landon averred:
KDMC filed a second summary judgment motion, arguing a lack of expert testimony establishing a causal link between KDMC's nursing staff's failure to perform nursing interventions and to adequately document pertinent findings and Caleb's injuries. Knipp conceded that summary judgment was proper on these theories of liability. --------
On June 23, 2014, I was deposed by counsel for Dr. Shawn Gorden and King's Daughters. At that time, I expressed my opinion that the application and attempted use of the vacuum caused the injury to Caleb Knipp's brain. I further expressed the opinion that the nurse should have questioned Dr. Gorden's use of the vacuum from the zero station, and if he persisted, to implement the chain of command "because I think there's enough risk involved with that and that a nurse should be aware of that to bring another nurse into the equation and to the discussion."
I was not asked directly what a reasonable obstetrician would have done under those circumstances if the nurse instituted such a discussion, but if I had been I would have answered then and I believe now that a reasonable obstetrician would have reconsidered his decision and would not have applied the vacuum.
KDMC moved to strike Dr. Landon's affidavit, arguing Knipp should not be allowed to supplement expert disclosures long after the expiration of the circuit court's deadlines and after the deadline for expert depositions, and that Dr. Landon's affidavit conflicted with his deposition testimony that he did not intend to offer testimony regarding nursing care. The circuit court did not rule on the motion. Instead, by order entered January 4, 2017, it granted KDMC's summary judgment motion, finding insufficient expert testimony that Nurse Tussey's failure to intervene when Dr. Gorden elected to use the vacuum extractor was a substantial factor in causing Caleb's injuries. Knipp appealed from this order.
STANDARD OF REVIEW
"The standard of review on appeal of summary judgment is whether the trial court correctly found there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Carter v. Smith, 366 S.W.3d 414, 419 (Ky. 2012). Under this standard, an action may be terminated "when no questions of material fact exist or when only one reasonable conclusion can be reached[.]" Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 916 (Ky. 2013). "The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment involves only legal questions and the existence, or non-existence, of material facts are considered. Stathers v. Garrard County Bd. of Educ., 405 S.W.3d 473, 478 (Ky. App. 2012). Our review is de novo. Mitchell v. Univ. of Kentucky, 366 S.W.3d 895, 898 (Ky. 2012).
ANALYSIS
Knipp argues the circuit court erred in granting summary judgment in KDMC's favor. He contends there is ample evidence in the record that Nurse Tussey breached the applicable standard of nursing care, and that such breach was a substantial factor in causing Caleb's injuries. We agree.
A common law negligence claim requires proof of: (1) a duty owed by the defendant to the plaintiff, (2) breach of that duty, (3) injury to the plaintiff, and (4) legal causation between the defendant's breach and the plaintiff's injury. Wright v. House of Imports, Inc., 381 S.W.3d 209, 213 (Ky. 2012). Due to the complexity of medical procedures, "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." Adams v. Sietsema, 533 S.W.3d 172, 179 (Ky. 2017) (citations omitted); see also Baptist Healthcare Sys., Inc. v. Miller, 177 S.W.3d 676, 680-81 (Ky. 2005). That is, generally speaking, only expert testimony can establish for the jury "the applicable medical standard of care, any breach of that standard and the resulting injury." Blankenship v. Collier, 302 S.W.3d 665, 675 (Ky. 2010). That quotation embraces each of the four elements of a medical negligence claim. It logically follows, then, that "[t]o survive a motion for summary judgment in a medical malpractice case in which a medical expert is required, the plaintiff must produce expert evidence or summary judgment is proper." Andrew v. Begley, 203 S.W.3d 165, 170, 173 (Ky. App. 2006).
Knipp presented expert testimony of Nurse Tussey's duty and breach. In fact, KDMC conceded for summary judgment purposes Knipp's position that Nurse Tussey owed a duty of care to Caleb and that she breached that duty. Duty and breach are not in dispute.
However, we still note that, as to duty and breach, Knipp's nursing expert, Nurse Shinn, offered her opinion, within a reasonable degree of medical probability, that Nurse Tussey breached the applicable nursing standard of care when she failed to withhold the vacuum from Dr. Gorden. She further speculated what should have happened if Nurse Tussey had withheld the vacuum, and the doctor insisted on its use anyway. Nurse Shinn testified: that the standard of care required a labor and delivery nurse to know the indicators for use of a vacuum; that Nurse Tussey, who conducted the last vaginal examination and fetal tracing, should have known that those indicators were not present; that Nurse Tussey should not have handed the vacuum to Dr. Gorden; and, if Dr. Gorden had insisted on the vacuum, Nurse Tussey should have gone up the chain of command, the first step of which is initiating a conversation with the doctor. Nurse Shinn acknowledged, "[i]t's a tough conversation to have, but at the end of the day, the nurse has a duty to the patient and the unborn baby[.]"
There being proof of duty and breach, the question is whether there was also evidence that such negligence was a substantial factor in causing Caleb's injuries. Sargent v. Shaffer, 467 S.W.3d 198, 210 (Ky. 2015) ("jury to determine if the defendant failed to comply with the duty, and if so, whether the defendant's failure to comply with the duty was a substantial factor in causing damages to the plaintiff"). "It is beyond dispute that causation is a necessary element of proof in any negligence case." Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122, 124 (Ky. 1991). "[I]n most medical negligence cases, proof of causation requires the testimony of an expert witness because the nature of the inquiry is such that jurors are not competent to draw their own conclusions from the evidence without the aid of such expert testimony." Rogers v. Integrity Healthcare Services, Inc., 358 S.W.3d 507, 511-12 (Ky. App. 2012) (citation omitted).
Again, causation is a question of fact for the jury. Bailey v. N. Am. Refractories Co., 95 S.W.3d 868, 872 (Ky. App. 2001). It only becomes a legal question for the trial court where the facts are undisputed and are susceptible of but one inference. See Huffman v. S.S. Mary & Elizabeth Hosp., 475 S.W.2d 631 (Ky. 1972). While causation may certainly be proven by direct evidence, it may also "be established by a quantum of circumstantial evidence from which a jury may reasonably infer that the [defendant's breach] was a legal cause of the harm." Holbrook v. Rose, 458 S.W.2d 155, 157 (Ky. 1970). "To find causation, the jury naturally draws inferences from circumstantial evidence." Bailey, 95 S.W.3d at 873. These inferences and all evidence of causation must be in terms of probability rather than mere possibility. Baylis, 805 S.W.2d at 124.
Our Supreme Court recently discussed the summary judgment standard when the plaintiff allegedly fails to obtain expert medical opinion testimony. That Court said: "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.'" Adams, 533 S.W.3d at 177 (quoting Blankenship v. Collier, 302 S.W.3d 665, 668 (Ky. 2010)). This case is not like Adams; there was not a complete failure of proof in this case. Rather, we find the expert medical evidence elicited by the plaintiff created a sufficient quantum of evidence to create a question of fact as to causation.
Knipp presented evidence that a physician cannot perform a vacuum extraction without a vacuum. Dr. Gorden testified that he would have to ask the nurse for the vacuum: "I wouldn't have gotten it myself." Nurse Tussey agreed: "The doctor has to ask for it, we don't routinely put them out." Nurse Shinn testified repeatedly that Nurse Tussey "should have declined to give the vacuum to Dr. Gorden" and at the very least initiated a discussion with Dr. Gorden and, if needed, further invoked the chain of command.
Dr. Landon testified, "I just don't think the vacuum should have ever been employed, and I think that the vacuum in this case was causative of [Caleb's] intracranial hemorrhage." (Emphasis added). Dr. Noetzel agreed: "The hemorrhage was . . . most likely [the] result of the use of the vacuum extraction." Based on all the testimony, it would be reasonable for a jury to find that, but for Nurse Tussey's failure to abide by the standard of care, which would have required her to withhold the vacuum extractor from Dr. Gorden, Caleb's injuries would not have occurred. Stated another way, Nurse Tussey's duty was to disobey Dr. Gorden's order to get him the vacuum; obeying Dr. Gorden constituted a breach of the nursing standard of care and provided the doctor with the means to negligently inflict harm upon Caleb. By providing the vacuum, Nurse Tussey created a risk of harm to Caleb by Dr. Gorden's negligence. Reasonable minds can differ as to whether providing the instrumentality of Caleb's injury was a substantial factor in causing Caleb's injuries. That makes causation a jury question.
Both KDMC and the circuit court expressed concern with the lack of a medical expert opinion stating, directly and unequivocally, that Nurse Tussey's breach caused Caleb's injuries. There is no such direct testimony in this case. But the fact that an expert did not explicitly state that Nurse Tussey's breach caused Caleb's injuries is not dispositive. The jury, in deciding causation, is entitled to rely on direct evidence and to derive all reasonable inferences from that evidence. Toler v. Süd-Chemie, Inc., 458 S.W.3d 276, 287 (Ky. 2014) ("A jury is entitled to draw all reasonable inferences from the evidence[.]").
Knipp presented undisputed expert medical testimony that Nurse Tussey breached the nursing standard of care when she handed the vacuum to Dr. Gorden. There is also expert medical testimony that the vacuum caused Caleb's injuries. As is required of the circuit court, this Court must "view the evidence, and any reasonable inferences that may be drawn from the evidence, in the light most favorable to" Knipp. MV Transp., Inc. v. Allgeier, 433 S.W.3d 324, 328 (Ky. 2014). Doing so, we find it would not be unreasonable for the jury to infer from the lay and medical opinions offered that had Nurse Tussey complied with the standard of care and not given the vacuum extractor to Dr. Gorden, then the vacuum extraction and Caleb's resulting injuries would not have occurred. Reasonable minds could differ, and it would not be unreasonable for a jury to find, based on the expert medical opinions in this case, that Nurse Tussey's breach was a substantial factor in causing Caleb's injuries. See Shelton, 413 S.W.3d at 916 (summary judgment is available if "reasonable minds cannot differ or it would be unreasonable for a jury to find breach or causation").
KDMC argues Knipp cannot prove what Dr. Gorden would have done if Nurse Tussey had confronted him about using the vacuum. Expert testimony as to this issue, KDMC argues, is pivotal to prove causation, but is impossible to obtain because it is merely speculative. We disagree.
First, while this argument is not entirely of the "red herring" type, we believe it is dependent upon an unnecessary presumption. That presumption is that the duty to withhold the vacuum and the duty to initiate the chain of command resolution process could only be satisfied by two separate and independent acts. We conclude that reasonable minds could infer that withholding the vacuum would have initiated the chain of command resolution process because it would have addressed the issue directly with Dr. Gorden.
Second, the proof necessary is not the subjective reaction of Dr. Gorden had Nurse Tussey withheld the vacuum or brought the issue to his attention. The proof necessary is what a reasonable obstetrician would do under such circumstances. Kentucky law imposes an objective, not a subjective, standard of care. Lake Cumberland Regional Hospital, LLC v. Adams, 536 S.W.3d 683, 697 (Ky. 2018) ("The standard of care remains the objective, reasonable person (hospital) standard."); see also Reams v. Stutler, 642 S.W.2d 586, 588 (Ky. 1982) (plaintiff must prove that the treatment given was below the degree of care and skill expected of a reasonably competent practitioner). KDMC's argument that we do not know what Dr. Gorden would have done is an approach unsupported by the proper objective standard.
Knipp provided proof that addressed the proper standard - what would a reasonable obstetrician have done - in the form of Dr. Landon's affidavit. Dr. Landon averred that, if the nurse had initiated a discussion under the circumstances of this case (and that discussion certainly would have been initiated if she withheld the vacuum), "a reasonable obstetrician would have reconsidered his decision and would not have applied the vacuum."
CONCLUSION
For the foregoing reasons, we reverse the Boyd Circuit Court's January 4, 2017 order and judgment and remand for additional proceedings.
ALL CONCUR. BRIEFS FOR APPELLANT: Mike Breen
Bowling Green, Kentucky Sharon Morgan
Brian D. Ketterer
Baltimore, Maryland Kevin C. Burke
Jamie K. Neal
Louisville, Kentucky ORAL ARGUMENT FOR
APPELLANT: Kevin C. Burke
Louisville, Kentucky BRIEF FOR APPELLEE: Ashley W. Ward
Kristen K. Orr
Emily L. Startsman
Lexington, Kentucky ORAL ARGUMENT FOR
APPELLEE: Ashley W. Ward
Lexington, Kentucky