Opinion
2023-CA-0874-MR
11-15-2024
AMANDA SUE MADDEN-DYAL APPELLANT v. DR. ADIB CHAAYA, M.D. AND PIKEVILLE MEDICAL CENTER, INC. APPELLEES
BRIEF FOR APPELLANT: A. David Blankenship Paintsville, Kentucky. BRIEF FOR APPELLEES: Stephen S. Burchett Lexington, Kentucky.
NOT TO BE PUBLISHED
APPEAL FROM PIKE CIRCUIT COURT HONORABLE EDDY COLEMAN, JUDGE ACTION NO. 16-CI-001179
BRIEF FOR APPELLANT: A. David Blankenship Paintsville, Kentucky.
BRIEF FOR APPELLEES: Stephen S. Burchett Lexington, Kentucky.
BEFORE: COMBS, L. JONES, AND TAYLOR, JUDGES.
OPINION
TAYLOR, JUDGE.
Amanda Sue Madden-Dyal (Dyal) brings this appeal from an order entered July 6, 2023, granting summary judgment in favor of appellees, Dr. Adib Chaaya (Chaaya) and Pikeville Medical Center, Inc. (PMC), upon her medical malpractice action. We affirm.
BACKGROUND
On December 13, 2016, Dyal filed a medical malpractice action in Pike Circuit Court against Chaaya and PMC, claiming they were liable for a neck injury she allegedly sustained during an esophagogastroduodenoscopy (EGD) procedure Chaaya performed on her at PMC's hospital. Relevant to this appeal, she alleged:
Approximately three weeks after her esophagogastroduodenoscopy procedure, Amanda Sue Madden-Dyal underwent a discectomy and anterior fusion surgery for a herniated disc in her neck area.
8. On December 14, 2015, Dyal was admitted to PMC [Pikeville Medical Center] . . . under the care of Dr. Chaaya for an EGD procedure. During the procedure and while under anesthesia Dyal sustained a neck injury. In recovery Dyal persistently complained of severe pain in her neck and upon discharge Dyal "cried" due to the severity of the pain in [sic] route home. [Throughout] the night the pain persisted and the following day Dyal was seen by a Physician and diagnosed with a herniation at the C-5/C-6 level. As a result of this injury Dyal underwent surgery but continues to suffer from pain and limitations which interfere with her daily life and employment opportunities. She has sustained medical bills and will continue to incur medical bills in to the future. This injury and the associated damages were caused by the negligent conduct of Dr. Chaaya and/or other employees and/or agents and servants of PMC[.]Complaint at 3.
Chaaya and PMC filed answers denying liability and, in October 2021, moved for summary judgment. They argued Dyal had failed to produce expert witness testimony establishing the pertinent standard of care, breach of such standard of care, and injury therefrom.
Responding, Dyal maintained expert testimony was unneeded because, in her view, a layperson could easily recognize the negligence of Chaaya and PMC and thus res ipsa loquitur applied. Alternatively, if her res ipsa loquitur argument was not accepted by the circuit court, Dyal asked for an extension of time to procure any expert testimony necessary to support her claims. Dyal filed her "preliminary expert witness disclosures" shortly afterward, identifying her proposed experts and describing their anticipated testimony in relevant part as follows:
1. Leonard F. Milewski, M.D., F.A.C.S.
....
Based upon his review of the medical records and other documents, as well as his education, professional knowledge, training, and expertise, Dr. Milewski will opine, with a reasonable degree of medical probability, that the Defendants deviated from the standard of care during the surgical procedure of December 14, 2015. He is further of the opinion the deviation from the standard of care was a substantial factor in causing injury to Amanda Sue Madden-Dyal, which was a herniation at the C5-6 level of the spine, treatment as a result thereof, expenses for said treatment, pain and suffering from the
same, and the resultant conditions caused as a result thereof described in the records.
....
3. Dr. Tamara Musgrave, M.D.
Dr. Musgrave is a treating physician of Ms. Madden-Dyal. Therefore, no report was requested or obtained from this doctor. It is anticipated Dr. Musgrave will testify in accordance with her medical records as of the date of trial. Dr. Musgrave is expected to opine that, based upon her treatment of Ms. Madden-Dyal, both before and after the subject EGD procedure, that the herniation of the cervical spine occurred during the EGD procedure of December 14, 2015. She is further expected to testify that Amanda Madden-Dyal is 100% disabled due to the injuries and resultant conditions. Other opinions asked of this witness may include the nature and extent of the injuries Ms. Madden-Dyal sustained, the treatment provided Ms. Madden-Dyal, and her prognosis for Ms. Madden-Dyal.
4. Dr. Brenden Coughtry, M.D.
Dr. Coughtry is a treating physician of Ms. Madden-Dyal. Therefore, no report was requested or obtained from this doctor. It is anticipated Dr. Coughtry will testify in accordance with his medical records as of the date of trial. Dr. Coughtry is expected to opine that, based upon his treatment of Ms. Madden-Dyal, both before and after the subject EGD procedure, that he observed a dramatic change in Amanda after the EGD procedure of December 14, 2015. Other opinions asked of this witness may include the nature and extent of the injuries Ms. Madden-Dyal sustained, the treatment provided Ms. Madden-Dyal, and his prognosis for Ms. Madden-Dyal.Record at 539-542.
Rather than ruling on the appellees' motion for summary judgment, the circuit court entered an agreed order permitting the parties to complete all discovery by November 15, 2022. Discovery was later extended to May 18, 2023.
In December 2022, the appellees then renewed their motion for summary judgment arguing, as before, that Dyal had failed to produce expert witness testimony establishing the pertinent standard of care, breach of such standard of care, and injury therefrom. Their renewed motion was based largely upon the deposition testimony of Dr. Milewski, Dyal's only retained expert. Specifically, Dr. Milewski opined that the EGD did not cause Dyal's C5-6 herniation, Dyal's only claimed injury; that it "was probably not an acute episode;" and "that cervical herniation was probably longstanding." To that end, he did not disagree with a December 22, 2015, radiology report which described Dyal's condition as "degenerative disc disease with herniations;" and he noted other records indicating Dyal had experienced chronic pain symptoms and spasms in her neck and back beginning about four years prior to the procedure. Milewski's Deposition at 61, 65, 66, 81, 82, and 91.
Instead, Dr. Milewski believed "something" during the EGD procedure had exacerbated that preexisting condition, causing Dyal to develop "complex regional pain syndrome" (CRPS) in her neck. He acknowledged "there are no real diagnostic tests" for CRPS, and that "it's a matter of symptoms and - and - and just physical examination." Milewski's Deposition at 83-85. He acknowledged his opinion was based solely upon his review of Dyal's deposition and medical records, and that he had not discussed it with her treating physicians. Milewski's Deposition at 81-82. He also acknowledged Dyal had been diagnosed with fibromyalgia and cervical myalgia prior to the EGD procedure, but he differentiated CRPS from those conditions, explaining:
[F]ibromyalgia as they describe it is, -- is discomfort all over one's body. Complex regional pain syndrome generally is restricted pretty much to an extremity or both extremities against -- across the midline.
You don't see the other changes in fibromyalgia. You do in regional pain syndrome such as the varying temperatures on the skin, the contractures, the -- what's called allodynia or sensitivity to the skin just by clothes or simple touch. Some people have chronic regional pain syndrome, get pain just from combing their hair.Milewski's Deposition at 51-52.
I think she has exhibited all the classical signs of it following the procedure. She's had the sensitivity to touch, sensitivity to temperature. She's had changes where skin has been either white, or bland, or -- or -- or somewhat hyperemic.
She's had some contractures, ongoing pain. What else? I believe she's had some skin lesions. There are times when they -- they -- she -- her -- her -- her arm feels hot and sometimes when it feels cold.Milewski's Deposition at 83-84.
That said, Dr. Milewski could not identify the "something" that occurred during the EGD procedure which he asserted caused Dyal to develop CRPS. He could only speculate that there may have been some improper manipulation of Dyal's body during the procedure. He added that "[w]hatever occurred may have seemed quite trivial to those who are in that procedure, either before or after, and they can't -- could not even recognize what, perhaps, that was," and that "it's hard to say" whether "a seemingly minor maneuver was really the inciting event." Milewski's Deposition at 78-80. Further, based on his review of Dyal's medical records, he had no criticisms of how Dyal was positioned during the EGD, or of any of the preoperative steps that were taken; and he could not point to any deviation from the applicable standard of care regarding the procedure. He could only state that Dyal's CRPS was "temporally related to the procedure. There's nothing else that would have caused that." Milewski's Deposition at 88.
In a Supplemental Response to the appellees' renewed motion for summary judgment, Dyal did not address Dr. Milewski's opinion that the EGD procedure had caused her to develop CRPS. Instead, she maintained - without citing any part of Dr. Milewski's deposition - that Dr. Milewski's opinion was, in actuality, that her "body was moved/manipulated in an improper manner that herniated a disc in her neck in the process, and that such manipulation deviated from the accepted standard of care." Record at 698-99. Building from that premise, she insisted Dr. Chaaya or other PMC personnel had improperly positioned her body during the EGD procedure; that she had complained of pain soon after the procedure; and
The Supplemental Response to Motion for Summary Judgment was filed on April 14, 2023. The jury trial was scheduled for July 9, 2023.
Based upon the nature and the circumstances of the injury [Dyal] sustained, she should be permitted to present that data, the opinions of not only her retained expert, but also the treating physicians who are of the opinion the injury occurred during the procedure and present the circumstantial evidence for the jury to consider. What absence of data this case has goes to the weight of the evidence and can be the subject of crossexamination.
At the end of the day, the question this case presents is whether it is a deviation from the standard of care to herniate a patient's cervical spine during an EGD scope of the stomach. As outlandish as that premise is, that is the question this case presents, should the jury agree the herniation occurred during the procedure.Record at 702 (emphasis added).
After considering the parties' respective arguments, the circuit court agreed with and granted the appellees' motion for summary judgment by order entered July 6, 2023. This appeal followed.
STANDARD OF REVIEW
The standard of review of an appeal of an order granting summary judgment is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing Kentucky Rules of Civil Procedure (CR) 56.03). Upon a motion for summary judgment, all facts and inferences in the record are viewed in a light most favorable to the nonmoving party 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) (citation omitted). Thus, a summary judgment looks only to questions of law and we review a trial court's decision to grant summary judgment de novo. Ashland Hosp. Corp. v. Lewis, 581 S.W.3d 572, 577 (Ky. 2019).
As concerns medical malpractice cases, the Kentucky Supreme Court recently stated the following:
It is elementary for all tort cases that the plaintiff must establish a duty, breach thereof, causation, and injury. "In medical malpractice cases the plaintiff must prove that the treatment given was below the degree of care and skill expected of a reasonably competent practitioner and that the negligence proximately caused injury or death." Reams v. Stutler, 642 S.W.2d 586, 588 (Ky. 1982). "The burden of proof in a malpractice case is, of course, on the party charging negligence or wrong. That 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 it." Johnson v. Vaughn, 370 S.W.2d 591, 596 (Ky. 1963). The failure to provide expert medical testimony when necessary is "truly a failure of proof" and merits summary judgment. Adams v. Sietsema, 533 S.W.3d 172, 177 (Ky. 2017) (quoting Blankenship v. Collier, 302 S.W.3d 665, 668 (Ky. 2010)).Saint Elizabeth Medical Ctr., Inc. v. Arnsperger, 686 S.W.3d 132, 138 (Ky. 2024) (footnote omitted).
ANALYSIS
We note at the onset that there is a glaring defect in Dyal's brief: It quotes several purported sources of evidence that were never included with or designated by Dyal to be part of the appellate record. These include what she describes as: (1) Chaaya's deposition; (2) Chaaya's Answers to Plaintiff's First Set of Interrogatories; (3) Jacobs' deposition; and (4) Roop's deposition. The duty is on the appellant to see that the record is complete on appeal and where the record is incomplete, the reviewing court must assume that the omitted portions support the trial court's order. Commonwealth, Dep't of Highways v. Richardson, 424 S.W.2d 601 (Ky. 1967). Because this evidentiary material is not in the record, we must presume it supports rather than undermines the trial court's judgment.
We now turn to the substance of our analysis. Dyal argues the circuit court erred by dismissing her malpractice action for lack of expert testimony establishing the pertinent standard of care, breach of such standard of care, and injury therefrom. However, based on the evidence of record before us, any assumption that the EGD procedure herniated Dyal's cervical spine would be speculative and unfounded. Dyal, a layperson, was incapable of giving medical or expert testimony establishing that the EGD procedure herniated her cervical spine. There is also no indication Dr. Musgrave and Dr. Coughtry gave any medical or expert evidence consistent with that proposition, as the record contains no affidavit from either physician and, as Dyal acknowledges in her brief, neither doctor was deposed. Instead, Dyal merely cites the "preliminary expert witness disclosures" she filed below to illustrate what their opinions might have been if they had testified at trial. Record at 539-548. Those disclosures were not signed or sworn by either doctor; they were accordingly nothing more than promises of forthcoming evidence from Dyal's counsel; and representations of counsel are not the affirmative evidence required to defeat a motion for summary judgment. They are not evidence at all. See Mason v. Commonwealth, 331 S.W.3d 610, 624-25 (Ky. 2011).
Importantly, contrary to the statements contained in the "preliminary expert witness disclosure" regarding the substance of Dr. Milewski's promised expert testimony, Dr. Milewski in fact testified that Dyal's cervical spine was not herniated during the EGD procedure of December 14, 2015, and that the herniation was instead caused by long-term degenerative processes rather than acute trauma.
In turn, Dr. Milewski's testimony and the evidence he reviewed while giving it demonstrate why the doctrine of res ipsa loquitur cannot be applied to Dyal's claim. The only "injury" Dyal alleged in her complaint and the only injury she has ever argued is that Chaaya and PMC caused her was "a herniation at the C-5/C-6 level." December 13, 2016, Complaint at 3. But, the only expert evidence Dyal adduced below reflected that her cervical herniation was due to long-term degenerative processes, rather than by negligence from Chaaya and PMC. Having failed to exclude all other inferences that her herniation might be due to a cause of which the appellees were not responsible, Dyal was not entitled to the benefit of res ipsa loquitur. Arnsperger, 686 S.W.3d at 139. In sum, Dyal failed to sustain her evidentiary burden and her failure of proof warranted the granting of summary judgment in this case.
CONCLUSION
Based on our review and analysis, we affirm the summary judgment rendered by the Pike Circuit Court in favor of Chaaya and PMC.
ALL CONCUR.