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Bray v. Husted

United States District Court, E.D. Kentucky, Southern Division

March 31, 2014

ANNA RUTH BRAY, and ESTATE OF JIMMIE LOWE, Plaintiff,
v.
JOHN HUSTED, M.D. et al., Defendants

For Lois Boone, Added per D.E. 69 as Administratrix of the Estate of Jimmie Lowe, Executor plaintiff: Brian Lee Schuette, LEAD ATTORNEY, Brian Schuette & Associates, Bowling Green, KY.

For Anna Ruth Bray, Plaintiff: Brian Lee Schuette, LEAD ATTORNEY, Brian Schuette & Associates, Bowling Green, KY.

For Humana Insurance Company, Intervenor Plaintiff: Gregory Gerald Beck, LEAD ATTORNEY, Kreiner & Peters Co, LPA - Dublin, Dublin, OH.

For John D. Husted, M.D., Defendant: Katherine Tipton Watts, LEAD ATTORNEY, David Sean Ragland, Phillips Parker Orberson & Arnett, PLC - Louisville, Louisville, KY.

For Lake Cumberland Regional Hospital, LLC., doing business as Lake Cumberland Regional Hospital, doing business as Commonwealth Bariatric Center, Lifepoint of Lake Cumberland, LLC, Defendants: Bradley R. Hume, LEAD ATTORNEY, Bryan Todd Thompson, Chad Owens Propst, Millicent A. Tanner, Sallie Jacobs Stevens, Thompson, Miller & Simpson, PLC - Louisville, Louisville, KY.

Page 855

OPINION & ORDER

KAREN K. CALDWELL, CHIEF UNITED STATES DISTRICT JUDGE.

This matter is before the Court on two motions for summary judgment filed by Defendant John Husted. The two motions are nearly identical and seek dismissal of all claims brought by Plaintiffs Anna Ruth Bray (DE 90) and Lois Boone, administratrix of the Estate of Jimmie Lowe (DE 91), on the grounds that their claims are barred by the statute of limitations. For the following reasons, the Court will deny the defendant's motions.

Both plaintiffs in this case suffered from lifelong morbid obesity and sought medical treatment from John Husted, a bariatric surgeon in Somerset, Kentucky. According to the complaint, Anna Ruth Bray and Jimmie Lowe underwent what is known as a " duodenal switch" procedure that resulted in severe complications, including life-threatening malnutrition. After several months of medical treatment following their surgeries, both Bray and Lowe met Dr. Jeffrey Allen, who performed an exploratory and revisionary surgery on them to diagnose and correct the problems with Husted's prior work.

They filed their suit against Husted on February 14, 2011. Husted contends that the filings were untimely as they were filed more than a year after any reasonable person would have discovered her injury. He moves for dismissal on such grounds.

I.

Summary judgment is appropriate " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56; Pennington v. State Farm Mut. Auto. Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009). The central issue is " whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In making its determination, courts must view all of the evidence in the light most favorable to the party opposing summary judgment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

" Where, as in this case, summary judgment [is sought] on statute-of-limitations grounds," the Court " must determine whether (1) the statute of limitations has run and (2) whether there exists a genuine issue of material fact as to when the plaintiff's cause of action accrued." Campbell v. Grand Trunk W. R.R. Co., 238 F.3d 772, 775 (6th Cir. 2001). If the court can resolve whether the statute of limitations has expired as a matter of law, it should. See Elam v. Menzies, 594 F.3d 463, 467 (6th Cir. 2010). " Kentucky law and federal procedural law used in diversity cases specify that disputed issues of fact respecting the running of a statute of limitations should be resolved by a jury." Id.

In this case, both parties agree that the statute of limitations is set by Ky. Rev. Stat. § 413.140(1)(e). Under this statute, claims for medical malpractice must be brought within one year of accrual. This statute adopts a discovery rule, which states 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." K.R.S. § 413.140(2). ...


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