Opinion
NO. 2012-CA-001889-MR
01-08-2016
ESTATE OF KENNETH GIBSON 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NOT TO BE PUBLISHED APPEAL FROM HOPKINS CIRCUIT COURT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-00971 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; KRAMER AND TAYLOR, JUDGES. ACREE, CHIEF JUDGE: Appellant, the Estate of Kenneth Gibson, by and through his Personal Representative, Shirley Brown, appeals from the August 18, 2008 and September 16, 2008 orders of the Hopkins Circuit Court dismissing by means of summary judgment his medical negligence and fraud actions against Dr. Philip Trover. Gibson also appeals from orders dismissing by means of summary judgment his medical negligence, negligent credentialing, and fraud actions against Baptist Health Madisonville f/k/a Trover Clinic Foundation. The circuit court determined Gibson did not file his complaint 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 Gibson from discovering the negligent or otherwise wrongful acts of Dr. Trover or the Foundation. We affirm.
Before entry of judgment and unrelated to his claims in this action, Gibson died. Brown, in her capacity as Personal Representative of Gibson's Estate, substituted as party plaintiff and the action was revived. However, for ease of reading and comprehension, we refer to the Appellant in this case as Gibson.
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 similar, 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 Gibson's claims related to medical negligence, for this inquiry is fact-specific and turns on the particular circumstances of this case.
Gibson first presented to the Regional Medical Center emergency room on July 23, 2000, complaining of severe stomach pain. He was admitted to the hospital, and several tests and scans were ordered, including an ultrasound of Gibson's gallbladder. Dr. Trover, interpreting the ultrasound, reported an abnormal accumulation of fluid around the gallbladder. A CT scan of Gibson's abdomen was also performed. The CT scan was interpreted by another radiologist as indicating an enlarged and distended gallbladder surrounded with inflammation and air. Gibson was diagnosed with sepsis and gangrenous cholecystitis, a condition requiring emergency surgery to remove the infected gallbladder. Gibson's surgery was performed that same day.
Gibson contends Dr. Trover "more than likely" misinterpreted his scans, and as a result, caused a delay in his admission to the hospital. Specifically, Gibson stated he was in the emergency room for at least twenty-four to thirty hours before admission to the Medical Center for treatment. Gibson testified that while waiting for the doctors to perform tests, he fainted because his pain was so severe.
Gibson further testified that he underwent a post-operative evaluation on July 24, 2000; he was discharged from the hospital six days later, on July 30, 2000. Gibson stated in his deposition that he had not needed any follow-up treatment for that condition in several years. Essentially, the surgery was entirely successful.
On August 7, 2000, Gibson returned to the hospital with a fever. Given Gibson's medical history and prior surgery, an abdominal ultrasound was ordered. Dr. Trover interpreted the scan as showing a fluid-filled abscess under Gibson's liver. Gibson's abscess was drained, and he was released from the hospital to return home.
A proposed class action lawsuit was filed against Dr. Trover and the Foundation on March 17, 2004. Gibson joined the proposed class as a plaintiff on January 21, 2005, alleging Dr. Trover negligently misread his July 23, 2000 ultrasound, causing a prolonged hospital stay and resulting in emotional, mental, and psychological pain and suffering.
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. Gibson was first named as a plaintiff in the fifth amended complaint tendered on January 21, 2005 and filed on January 24, 2005. (R. at 1798 - 1836; Cruce v. Trover, Hopkins Cir. Ct. Case No. 04-CI-00225). Solely for purposes of this appeal and affording Gibson the benefit of every doubt, we have chosen to use the January 21, 2005 date proffered by Gibson as the date upon which he filed suit.
Following extensive motion practice, the circuit court dismissed Gibson's medical negligence claim, finding he failed to file it within the applicable one year statute of limitations, KRS 413.140, which governs such claims. Gibson appealed.
Kentucky Revised Statute.
KRS 413.140 establishes a one-year limitations period for actions "against a physician, surgeon, dentist, or hospital licensed pursuant to KRS Chapter 216, for negligence or malpractice." KRS 413.140(1)(e). The determinative moment for measuring the limitations period has always been when the cause of action accrued. Accordingly, the statute further embodies the "discovery rule," meaning that "the cause of action shall be deemed to accrue at the time the injury is first discovered or in the exercise of reasonable care should have been discovered." KRS 413.140(2). Critical to the knowledge element under the discovery rule is the distinction between "harm" and "injury."
"Harm" [is defined] as "the existence of loss or detriment in fact of any kind to a person resulting from any cause." Harm in the context of medical malpractice might be the loss of health following medical treatment. "Injury" on the other hand, is defined as "the invasion of a legally protected interest of another." Thus, injury in the medical malpractice context refers to the actual wrongdoing, or the malpractice itself.Wiseman v. Alliant Hosps., Inc., 37 S.W.3d 709, 712 (Ky. 2000) (citing Restatement (Second) of Torts § 7, comment (1965)).
Interpreting KRS 413.140(2), our Supreme Court has explained that the limitations period commences when one knows, or in the exercise of reasonable diligence should know, that "(1) he has been wronged; and, (2) by whom the wrong was committed. Wiseman, 37 S.W.3d at 712. However, this formula does not permit a tort victim to sit on his rights. "A person who knows he has been injured has a duty to investigate and discover the identity of the tortfeasor within the statutory time constraints." Queensway Financial Holdings Ltd. v. Cotton & Allen, P.S.C., 237 S.W.3d 141, 151 (Ky. 2007).
Like so many of the other appellants in these related cases, Gibson asserts that he learned of Dr. Trover's alleged negligence from the March 2004 notice in the Madisonville Messenger and the ensuing media coverage of the story. He claims he had no knowledge of Dr. Trover's negligence until that moment. He argues he filed his complaint well within one year of this date, as required by KRS 413.140 and, therefore, his complaint was timely filed.
The advertisement invited residents who had had radiological studies read by Dr. Trover during a certain time period to attend an informational meeting.
The Appellees respond that Gibson was well aware of any alleged negligence as early as July 2000 upon his discharge from the hospital. We agree.
As noted, Gibson claims that Dr. Trover misinterpreted scans and caused a delay in his admission to the Medical Center. During the delay, Gibson allegedly lingered in the emergency room while suffering intense pain. Gibson testified in deposition he was in the emergency room for "at least 24, 30 hours" before admission to the Medical Center. When asked why he thought Dr. Trover was involved in the delay, Gibson explained:
A. Well, I liked to have died, for one reason. And more than likely, he misread the x-rays, because I stayed in there for at least 24, 30 hours.
Q. Okay. So you think that you stayed in the emergency room for 24 to 30 -
A. I don't know. I don't know how long I stayed in the emergency room.
Q. Right. But you think you were in the emergency room -(Gibson Depo., pp. 26:08 - 26:20).
A. For a pretty good while, I know.
Q. -- for a long time, because you believe that your x-rays were misread?
A. I sure do.
Gibson knew upon his discharge from the Medical Center that, in his estimate, he had suffered unnecessary pain and Dr. Trover's conduct was, at least in part, the cause of his harm. He possessed in July 2000 the requisite knowledge to trigger the one-year statute of limitations.
Summarizing then, beginning not later than July 30, 2000 - the date Gibson was discharged from the Medical Center - Gibson was on notice of the possibility that Dr. Trover negligently misread his July 23, 2000 ultrasound; on that date the limitations period began. To succeed, a lawsuit should have been filed not later than July 30, 2001. Instead, Gibson did not file suit until January 21, 2005. His complaint was not timely filed. The circuit court committed no error in granting summary judgment in favor of Dr. Trover on Gibson's claim of medical negligence.
We are left with Gibson's medical negligence claim against the Foundation. That claim is derivative in nature, based solely on the Foundation's employment of Dr. Trover. "Vicarious liability, sometimes referred to as the doctrine of respondeat superior, is not predicated upon a tortious act of the employer [or principal] but upon the imputation to the employer [or principal] of a tortious act of the employee [or agent.]" Patterson v. Blair, 172 S.W.3d 361, 369 (Ky. 2005) (citation omitted).
Gibson's complaint clearly states that the Foundation's alleged medical negligence is "by and through its agent, Dr. Trover." (R. at 614-15) (emphasis added). --------
Our Supreme Court has held that an employee's "escape [from] liability for his alleged negligence because the statute of limitations had run as to him does not also insulate the employer from vicarious liability for that negligence." Cohen v. Alliant Enterprises, Inc., 60 S.W.3d 536, 538 (Ky. 2001). However, the Court also said the vicarious claim may proceed only if the plaintiff "sued the principal . . . before the statute of limitations had run as to the agent." Id. at 539. In the case before us, Gibson did not sue the Foundation before the statute of limitations had run as to Dr. Trover. Therefore, the medical negligence claim against the Foundation was also untimely.
We affirm the orders of the Hopkins Circuit Court granting summary judgment in favor of Dr. Trover and the Foundation as to Gibson'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 Gibson's other causes of action 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