Opinion
NO. 2014-CA-000218-MR
05-22-2015
DELIA LUCAS APPELLANT v. SALVADOR RAMOS, MD. APPELLEE
BRIEF FOR APPELLANT: Eugene Sisco, Jr. Pikeville, Kentucky BRIEF FOR APPELLEE: Tonya S. Rager Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 12-CI-00672
OPINION
AFFIRMING
BEFORE: DIXON, STUMBO, AND VANMETER, JUDGES. VANMETER, JUDGE: Delia Lucas appeals from the Pike Circuit Court's order granting summary judgment in favor of Dr. Salvador Ramos. The issue on appeal is whether the trial court correctly held that without expert testimony, Lucas's medical negligence claim against Dr. Ramos fails as a matter of law. We believe that summary judgment was warranted and therefore affirm.
On May 2, 2011, Lucas underwent laparoscopic adjustable gastric banding surgery performed by Dr. Ramos at Pikeville Medical Center (PMC). In preparation for surgery, certain equipment was sterilized by the operating room (OR) staff, including former co-defendants and employees of PMC, Paula Murphy, Sherry Roop, and Vanessa Crum. One piece of equipment in particular, the insufflating system, was sterilized in an autoclave at a very high temperature. At some point in preparation for surgery, the insufflating system was placed on Lucas's abdomen and she suffered a second-degree burn.
Thereafter, Lucas filed a negligence suit against PMC, Dr. Ramos, Murphy, Roop, and Crum. All defendants settled their claims except Dr. Ramos. In anticipation of trial, the trial court ordered Lucas and Dr. Ramos to disclose any expert witnesses they planned on calling to testify at trial. Lucas filed notice that she would not present any expert witness testimony. Dr. Ramos then filed a motion to dismiss or, alternatively, for summary judgment, on the basis that Lucas's claim required expert testimony in order to remain viable.
The trial court granted Dr. Ramos's motion for summary judgment, finding that Dr. Ramos was not an employer or supervisor of the other personnel in the OR, and when he entered the room to perform Lucas's surgery, all instruments and equipment had been sterilized and were in place. Only when Dr. Ramos lifted the drape covering Lucas's surgical area did he discover the burn. Given that Lucas did not secure any expert opinion to the effect that Dr. Ramos owed a duty to her with respect to sterilization and preparation of instruments and equipment pre- surgery; breached the standard of care in his treatment of her; or had exclusive possession or control of the insufflating system before she was burned, the court determined that summary judgment was warranted as a matter of law. Lucas now appeals.
On appeal, Lucas asserts that the trial court's findings were arbitrary, its decision to grant summary judgment was premature, and expert testimony was not required to sustain her claim. We disagree.
Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is therefore entitled to judgment as a matter of law. CR 56.03. In other words, summary judgment may be granted when "as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991) (internal quotations omitted). Whether summary judgment is appropriate is a legal question involving no factual findings, so an appellate court reviews the trial court's grant of summary judgment de novo. Coomer v. CSX Transp., Inc., 319 S.W.3d 366, 370-71 (Ky. 2010).
Kentucky Rules of Civil Procedure.
In order to pursue her medical negligence claim against Dr. Ramos, Lucas was required to present expert testimony establishing "(1) the standard of skill expected of a reasonably competent medical practitioner and (2) that the alleged negligence proximately caused her injury." Andrew v. Begley, 203 S.W.3d 165, 170 (Ky. App. 2006). "To 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." Id.
Kentucky consistently recognizes two exceptions to the expert witness rule in medical malpractices cases. See Perkins v. Hausladen, 828 S.W.2d 652, 655 (Ky.1992). Both exceptions involve the application of the res ipsa loquitur doctrine and permit the inference of negligence even in the absence of expert testimony. See id. at 654. One exception involves a situation in which "'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'; illustrated by cases where the surgeon leaves a foreign object in the body or removes or injures an inappropriate part of the anatomy. The second occurs when 'medical experts may provide a sufficient foundation for res ipsa loquitur on more complex matters.'" Id. at 655 (quoting Prosser and Keeton on Torts, Sec. 39 (5th ed.1984)). An example of the second exception would be the case in which the defendant doctor makes admissions of a technical character from which one could infer that he or she acted negligently. See id.Id. at 170-71.
We do not believe either exception applies here. Lucas attempts to characterize Dr. Ramos's deposition testimony as an admission, but this characterization is not supported by the record. While Dr. Ramos did state that the burn should not have occurred and that in the roughly 200 times he has performed this type of surgery, he has never seen this happen before, Dr. Ramos never admitted to causing the burn to Lucas's abdomen, or having any knowledge of what, or who, caused the burn. During his deposition, Dr. Ramos detailed the pre- operative time schedule showing that he was not in the OR when the burn occurred. Dr. Ramos emphasized that he was not responsible for the preparation and sterilization of instruments and equipment pre-surgery, and that his duties did not include supervising the OR staff. When Dr. Ramos lifted the drape to begin operating, he discovered the burn. At that point, he had not touched any equipment or instruments. Upon observing the burn, Dr. Ramos testified that he inquired as to what happened, but no one in the OR claimed any knowledge or responsibility. Dr. Ramos ordered that the burn be "written up" and then made the assessment that it was safe to proceed with the surgery and did so. Based on our review of the record, we find no support for Lucas's attempt to construe Dr. Ramos's testimony as an admission.
Furthermore, Lucas has not presented any evidence that Dr. Ramos had "full control of the instrumentality which caused the injury," which in this case is the insufflating system. See Ryan v. Fast Lane, Inc., 360 S.W.3d 787, 790 (Ky. App. 2012) (res ipsa loquitur doctrine inapplicable since plaintiff was operating gas pump at time of alleged injury; gas pump was not under defendant gas station's exclusive control). In fact, Lucas does not argue that Dr. Ramos had exclusive control of the insufflating system. Instead, she maintains that anyone in the OR could have been liable for the burn and filed claims against the OR staff accordingly. This assertion is the opposite of arguing that Dr. Ramos had exclusive control of the insufflating system. As a result, any attempt by Lucas to rely on res ipsa loquitur to avoid the expert opinion requirement must fail.
Without an expert opinion, Lucas is unable to show that Dr. Ramos breached the standard of care or that his actions or inactions proximately caused her injury. In addition, Lucas has not presented any evidence that Dr. Ramos trained or supervised the OR staff in the separate and independent pre-surgery duties, or that he had any duty to enforce PMC policies, so as to allow for the potential application of vicarious liability. Instead, the record reflects that the other members of the OR staff in the room that day were employees of PMC and received their training from PMC.
Regarding Lucas's general assertion that summary judgment was premature and that the court's findings were arbitrary, we disagree. The trial court held that Lucas failed to present the requisite expert opinion for her claim to proceed and the court's order granting summary judgment contains sufficient findings in support of its conclusion. Thus, for the foregoing reasons, we affirm the Pike Circuit Court's order granting summary judgment in favor of Dr. Ramos.
ALL CONCUR. BRIEF FOR APPELLANT: Eugene Sisco, Jr.
Pikeville, Kentucky
BRIEF FOR APPELLEE: Tonya S. Rager
Lexington, Kentucky