Opinion
NO. 2012-CA-001890-MR
01-08-2016
ESTATE OF JOEL BRANTLEY APPELLANT v. PHILIP C. TROVER, M.D. AND BAPTIST HEALTH MADISONVILLE, INC., F/K/A THE TROVER CLINIC FOUNDATION, INC. APPELLEES
BRIEFS FOR APPELLANT: John C. Whitfield Madisonville, Kentucky Roger N. Braden Florence, Kentucky Gary E. Mason Washington, DC BRIEF FOR APPELLEE, BAPTIST HEALTH MADISONVILLE F/K/A THE TROVER CLINIC FOUNDATION, INC.: Donald K. Brown, Jr. Michael B. Dailey Katherine Kerns Vesely Louisville, Kentucky BRIEF FOR APPELLEE, PHILIP C. TROVER, M.D.: Ronald G. Sheffer Sarah E. Potter Louisville, Kentucky J. William Graves Thomas L. Osbourne Paducah, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE MARTIN F. MCDONALD, JUDGE
ACTION NO. 04-CI-00225 & 05-CI-00972 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; KRAMER AND TAYLOR, JUDGES. ACREE, CHIEF JUDGE: Appellant, Estate of Joel Brantley, by and through his Personal Representative, Sharon Brantley, appeals from the August 18, 2008 and September 16, 2008 orders of the Hopkins Circuit Court dismissing by means of summary judgment its medical negligence and fraud actions against Dr. Philip Trover. The Estate also appeals from orders dismissing by means of summary judgment its medical negligence, negligent credentialing, and fraud actions against Baptist Health Madisonville f/k/a Trover Clinic Foundation. The circuit court determined the Estate did not file its claim of medical negligence against Dr. Trover and the Foundation within the applicable statute of limitation, and found no evidence of fraud or fraudulent concealment by either Appellee that prevented the Estate from discovering the negligent or otherwise wrongful acts of Dr. Trover or the Foundation. We affirm.
This matter is one of more than four dozen cases appealed to this Court related to Dr. Trover and the Foundation. By means of the Court's prehearing conference procedure, about half of those cases settled prior to briefing. This Court, with the assistance of the parties, divided the remaining twenty-four cases into three main groups, with a few outlying cases.
The principal opinion for the group that includes this case is Brown v. Commonwealth, No. 2012-CA-001880-MR, ----- WL ----- (Ky. App. Jan. 8, 2016), rendered this day. The critical issues in this case are strikingly similarly, essentially identical, to those which have been considered and decided in Brown, supra. So much of that opinion as is dispositive of issues raised on this appeal, except with regard to the claim of medical negligence, is incorporated herein by reference. Unless otherwise noted in this case, for the reasons stated in Brown, the orders of the circuit court are affirmed.
See Brown for an in-depth discussion of the background giving rise to these matters and a listing of the other cases included in this group.
Notably, each Appellant's brief in this category is identical in every respect.
We have carved out and will address separately the Estate's claims related to medical negligence, for this inquiry is fact specific and turns on the particular circumstances of this case.
Joel Brantley was hospitalized at the Regional Medical Center on January 12, 2000. While there, Dr. Trover read several of Joel's radiological films, including head CT films, a brain MRI, and an MRA of the carotid. Another physician discharged Joel from the Medical Center on January 14, 2000, with a diagnosis of a mini stroke and dysarthia (slurred speech).
Joel returned to the Medical Center the next day complaining of right-side weakness. Medical personnel discovered a lesion near the cerebral artery that, if not treated, would eventually cause Joel to suffer a large stroke. Upon consent of Joel's family, Dr. Trover performed a TPA infusion on the lesion. Despite initial success, complications later arose, and Joel died on January 16, 2000.
Over four years later, Sharon Brantley qualified as a personal representative for Joel's Estate.
A proposed class action lawsuit was filed on March 17, 2004. The Estate joined the proposed class as a plaintiff on February 28, 2005, alleging Dr. Trover misinterpreted all the January 2000 films taken during Joel's stay at the Medical Center. Following prolonged motion practice, the circuit court granted Dr. Trover's motion to dismiss the Estate's medical-negligence claims as untimely filed. The Estate appealed.
Eight complaints - the original and seven amendments - were filed in the underlying class action before the individual cases were separated upon denial of class certification. Each complaint added additional party plaintiffs. The Estate was first named as a plaintiff in the sixth amended complaint tendered on February 28, 2005 and filed on March 7, 2005. (R. at 1876 - 1918; Cruce v. Trover, Hopkins Cir. Ct. Case No. 04-CI-00225). Solely for purposes of this appeal and affording the Estate the benefit of every doubt, we have chosen to use the February 28, 2005 date proffered by the Estate as the date upon which it filed suit.
The Estate argues, as the appellant did in Brown, that its medical negligence claim was timely filed. It asserts it had no knowledge of Dr. Trover's negligence until a full-page advertisement appeared in the Madisonville Messenger in March 2004. The Estate then filed its complaint well within one year of this date and, therefore, the Estate contends its complaint was timely filed pursuant to KRS 413.140.
The advertisement invited residents who had had radiological studies read by Dr. Trover during a certain time period to attend an informational meeting.
Kentucky Revised Statute.
Based on the circumstances of this case, the Appellees' response to the Appellant's claim differs from their argument in the other cases in this group. Here, they argue that because no personal representative was appointed within one year of Joel's death, the Estate had two years from Joel's death, that is, until January 16, 2002, to file a claim for wrongful death or medical negligence pursuant to KRS 413.180. The complaint is untimely, goes the response, because suit was not brought until February 2005, more than three years late under the statute.
KRS 413.180 provides:
(1) If a person entitled to bring any action mentioned in [KRS 413.140] dies before the expiration of the time limited for its commencement and the cause of action survives, the action may be brought by his personal representative after the expiration of that time, if commenced within one (1) year after the qualification of the representative.Id. The Kentucky Supreme Court has interpreted this statute as providing "that if the personal representative is not appointed within a year after death but is appointed after that time, the one year anniversary of death is considered the date of appointment, and the personal representative has one year from the one year anniversary of death to commence a cause of action." Conner v. George W. Whitesides Co., 834 S.W.2d 652, 654-55 (Ky. 1992). "KRS 413.180, in effect, tolls the running of a statute of limitations for up to one year following the death of the injured party to enable the qualification of a personal representative who can pursue the claim." Overstreet v. Kindred Nursing Centers Limited Partnership, --- S.W.3d ---, --- n.4 (Ky. 2015).
(2) If a person dies before the time at which the right to bring any action mentioned in [KRS 413.140] would have accrued to him if he had continued alive, and there is an interval of more than one (1) year between his death and the qualification of his personal representative, that representative, for purposes of this chapter, shall be deemed to have qualified on the last day of the one-year period.
In this case, Joel died in January 2000. But his personal representative was not qualified within one year of his death. Accordingly, under KRS 413.180, his personal representative had two years from Joel's death - until January 2002 - to file suit. She did not do so. The complaint in this case was not filed until February 2005. It was not timely.
That leaves the Estate's medical negligence claim against the Foundation. That claim is derivative in nature, based solely on the Foundation's employment of Dr. Trover. Such a derivative claim "is not predicated upon a tortious act of the employer but upon the imputation to the employer of a tortious act of the employee[.]" Patterson v. Blair, 172 S.W.3d 361, 369 (Ky. 2005) (citation omitted). However, we need not undertake an analysis to determine whether Dr. Trover committed a tort for which his employer must answer.
The Estate's complaint clearly states that the Foundation's alleged medical negligence is "by and through its agent, Dr. Trover." (R. at 892-93) (emphasis added). --------
The derivative claim, like the direct claim of negligence against Dr. Trover, is subject to KRS 413.180. Because the Estate did not file the claim against the Foundation within two years of Joel's death, it was not timely and must also be dismissed.
We affirm the orders of the Hopkins Circuit Court granting summary judgment in favor of Dr. Trover and the Foundation as to the Estate's medical-negligence claims. We likewise affirm all other orders of the Hopkins Circuit Court granting summary judgment in favor of Dr. Trover and the Foundation on the Estate's other causes of action, including negligent credentialing and fraud, pursuant to the reasoning identified in Brown.
KRAMER, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN PART AND DISSENTS IN PART.
TAYLOR, JUDGE, CONCURRING IN PART AND DISSENTING IN PART. I concur with the majority opinion except as concerns their disposition of the negligent credentialing claim to which I respectfully dissent. I would recognize the tort of negligent credentialing in Kentucky.
In modern medical practice, hospitals have increasingly entered into the arena of hiring and employing physicians covering every facet of medical expertise. These physicians, such as Dr. Trover, are unilaterally selected and granted privileges to practice medicine at the hospital by the hospital. Considering our common-law negligence principles, it is only reasonable and just that hospitals must utilize reasonable care in granting privileges to physicians.
Before this panel are some 24 related appeals involving Dr. Trover and Trover Clinic. In these cases, numerous plaintiffs have alleged that Dr. Trover committed malpractice year after year in the interpretation of radiological studies while a staff physician at Trover Clinic. The sheer magnitude and horrendous nature of Dr. Trover's acts of alleged malpractice while working at Trover Clinic are both inexplicable and disconcerting. These cases underline the reason why the tort of negligent credentialing should be adopted in this Commonwealth. If appellant can demonstrate that Trover Clinic breached its duty by granting privileges to Dr. Trover, who was incompetent, and if appellant can demonstrate harm therefrom, I believe an action for negligent credentialing should be allowed. Accordingly, I would reverse the circuit court's summary judgment dismissing appellant's negligent credentialing claim and remand for further proceedings below. BRIEFS FOR APPELLANT: John C. Whitfield
Madisonville, Kentucky Roger N. Braden
Florence, Kentucky Gary E. Mason
Washington, DC BRIEF FOR APPELLEE, BAPTIST
HEALTH MADISONVILLE F/K/A
THE TROVER CLINIC
FOUNDATION, INC.: Donald K. Brown, Jr.
Michael B. Dailey
Katherine Kerns Vesely
Louisville, Kentucky BRIEF FOR APPELLEE, PHILIP C.
TROVER, M.D.: Ronald G. Sheffer
Sarah E. Potter
Louisville, Kentucky J. William Graves
Thomas L. Osbourne
Paducah, Kentucky