C. LANCE LOVE, M.D. AND C. LANCE LOVE, M.D., PLLC, APPELLANTS
LISA WALKER AND LARRY WALKER, APPELLEES
Released for Publication March 13, 2014.
ON REVIEW FROM COURT OF APPEALS. CASE NO. 2010-CA-002150-MR. CHRISTIAN CIRCUIT COURT NO. 07-CI-00277.
COUNSEL FOR APPELLANTS: E. Frederick Straub, Jr., Jonathan Rodgers Oliver, Whitlow, Roberts, Houston & Straub, PLLC.
COUNSEL FOR APPELLEES: Wendell Holloway.
This dispute involves a medical malpractice action filed by Lisa Walker and her husband, Larry Walker (the Walkers), against C. Lance Love, M.D., personally and individually, and C. Lance Love, M.D., PLLC (hereinafter collectively referred to as Dr. Love). The issue on appeal is whether the Walkers' failure to name a medical expert witness constituted a failure of proof that justified the grant of summary judgment. For the following reasons, we affirm in part and reverse in part the Kentucky Court of Appeals.
I. RELEVANT FACTS.
On February 28, 2006, Dr. Love performed a total thyroidectomy on Lisa. That same evening, Lisa experienced respiratory distress, and Dr. Van Meter, who was on call at the time, directed her to be placed on a ventilator. She remained on the ventilator for four days following the surgery and remained hospitalized for a total of twelve days. After the surgery, Lisa apparently experienced difficulty with breathing and speaking. Lisa consulted Dr. Dave, an otolaryngologist, who diagnosed her with right vocal cord paralysis.
On February 28, 2007, the Walkers filed a complaint alleging medical negligence in connection with the thyroidectomy that Dr. Love had performed. In his interrogatories, Dr. Love asked whether any physicians had indicated that Dr. Love had " deviated from the standard of good medical practice." The Walkers' response stated that their attorney had
consulted with a surgeon to verify that there was a departure from the standard
of care to cut, stretch, tear, compress or damage the vocal cord of Lisa Walker that has caused her irreparable damage and great difficulty in breathing. The Plaintiff herself had discussions with her treating physicians and believes that they know there was a deviation from the standard of good medical practice and the Plaintiff's care[.]
The response then listed the following people as the treating physicians: Dr. Shah, who referred Lisa to Dr. Love; Dr. Dave, who diagnosed the vocal cord paralysis; Dr. Ossoff, an otolaryngologist who told Lisa that her right vocal cord was damaged during surgery; and Dr. Van Meter.
Depositions were taken on the following dates: the Walkers (June 17, 2008); Dr. Love (April 23, 2009); Dr. Dave (July 16, 2009); Dr. Shah (July 21, ...