United States District Court, E.D. Kentucky, Southern Division, London
EMOGENE C. HALCOMB, individually and as surviving spouse of DAVID C. HALCOMB; and EMOGENE C. HALCOMB, Administratrix of the Estate of David C. Halcomb Plaintiff,
BRITTHAVEN, INC., Defendant.
MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, District Judge.
Defendant Britthaven, Inc. ("Britthaven") moves for partial summary judgment on Plaintiff Emogene C. Halcomb's ("Mrs. Halcomb") negligence claim, arguing that she cannot establish negligence per se based on violations of the Federal Nursing Home Reform Act ("FNHRA"), the Kentucky Adult Protection Act ("KAPA"), KRS Chapter 216 (governing long-term care facilities), KRS § 508.090 (criminal abuse), KRS § 530.080 (endangering an incompetent person) and KRS § 506.080 (criminal facilitation). Britthaven also contends that it is entitled to summary judgment on Mrs. Halcomb's medical negligence claim because she has failed to prove causation via expert testimony, as required by Kentucky law. Finally, Britthaven argues that summary judgment is appropriate on Mrs. Halcomb's loss of consortium claim because it is time-barred by the applicable statute of limitations. The Court has diversity jurisdiction over this matter pursuant to 32 U.S.C. § 1332.
II. Factual and Procedural Background
On December 7, 2010, 66 year-old David C. Halcomb ("Mr. Halcomb") suffered a serious stroke. (Doc. # 14-1 at 4). He was admitted to Johnson City Medical Center ("JCMC"), where he received emergency treatment for about three days. (Id. ). JCMC staff then transferred Mr. Halcomb to Britthaven of Tri-Cities ("Tri-Cities facility") for long-term rehabilitative care. (Id. ). In addition to his stroke, Mr. Halcomb suffered from several other medical conditions, including coronary artery disease, ischemic cardiomyopathy, Type II diabetes, neuropathy, hypertension, chronic kidney disease, hypothyroidism, osteoarthritis, obesity and "black lung." (Id. ).
Upon arrival at the Tri-Cities facility, Mr. Halcomb scored a 15 on his fall risk assessment form. (Doc. # 13-3 at 1). Although follow-ups were required for scores greater than 10, Mr. Halcomb's records allegedly indicated that no follow-up was necessary. (Id. ). Three days later, Tri-Cities staff put a care plan in place that included interventions such as assisting Mr. Halcomb to negotiate barriers, placing a call bell in his reach, referring him to rehabilitation and observing for visual defects. (Id. at 2). Despite these interventions, Mr. Halcomb fell on December 17, 2010, prompting staff to conduct another fall risk assessment. (Id. ). Mr. Halcomb scored a 20 on this assessment, so staff gave him non-skid socks and encouraged him to use the call bell. (Id. ). Mr. Halcomb fell two more times the following week. (Id. ). Nothing in the record suggests that Mr. Halcomb was seriously injured by any of these falls.
On December 14, 2010, Mr. Halcomb's lab results revealed a BUN level of 27 and a Creatinine level of 2.2. (Id. ). Mr. Halcomb began suffering from diarrhea around the same time. (Id. ). Tri-Cities staff implemented a care plan to address Mr. Halcomb's fluid volume deficit on December 23, 2010. (Id. ). Five days later, Dr. Gregory Dye ("Dr. Dye") decided that Mr. Halcomb's diarrhea and abnormal lab results warranted a transfer to Harlan Appalachian Regional Healthcare Hospital ("Harlan ARH"). (Doc. # 14-1 at 4).
Mr. Halcomb received IV fluids upon arrival at Harlan ARH. (Id. ). Although staff were unable to pinpoint the cause of Mr. Halcomb's diarrhea, they found that he was suffering from a large bladder stone and chronic systitis. (Id. ). Staff recommended a transfer to JCMC so that Mr. Halcomb could see a urologist. (Id. ). As staff prepared to transfer Mr. Halcomb to JCMC, his BUN levels fell from 80 to 43 and he received two units of blood for unexplained anemia. (Id. ). Mr. Halcomb also received a few doses of an antibiotic known as Flagyl during his stay at Harlan ARH. (Id. ).
Mr. Halcomb arrived at JCMC on December 30, 2010. (Id. ). He was placed under observation and given IV fluids, but JCMC staff did not recommend antibiotics. (Id. ). JCMC transferred Mr. Halcomb back to the Tri-Cities facility the next day in a stable and afebrile condition. (Id. ). However, Mr. Halcomb developed a fever of 100 degrees in the early hours of January 1, 2011, which staff treated with Tylenol. (Id. ). His temperature peaked at 101.4 degrees later that morning. (Id. at 5). The next day, Mr. Halcomb developed another fever and staff again administered Tylenol. (Id. ). Despite his fevers, he remained clinically stable. (Id. ). When Mr. Halcomb's family received notice of his condition, they instructed staff not to send him to the emergency room. (Id. ).
On January 3, 2011, Mr. Halcomb developed yet another fever, so Dr. Dye decided to send him to Harlan ARH's emergency room. (Id. ). When Mr. Halcomb arrived at Harlan ARH, he had right middle lobe pneumonia, as well as BUN levels of 80 and Creatinine levels of 4.0. (Id. ). He was quickly airlifted to Central Baptist Hospital in Lexington, where he received IV fluids and antibiotics. (Id. ). That same day, Mr. Halcomb suddenly went into cardiac arrest. (Id. ). Attempts at cardiopulmonary resuscitation were unsuccessful. (Id. ). Mr. Halcomb died of cardiac arrest on January 3, 2011. (Id. ).
Mrs. Halcomb, in both her individual capacity and as surviving spouse of Mr. Halcomb, filed this civil action in Harlan County Circuit Court on November 28, 2012. (Doc. # 1-5 at 2). Britthaven removed the action to federal court three weeks later. (Doc. # 1). After a lengthy period of discovery, Britthaven filed a Motion for Summary Judgment on Mrs. Halcomb's medical negligence claim. (Doc. # 25). Mrs. Halcomb submitted a response in timely fashion. (Doc. # 26). Britthaven filed its reply brief contemporaneously with four more Motions-a Motion for Summary Judgment on Emogene C. Halcomb's Claim for Loss of Consortium (Doc. # 27), Motion for Partial Summary Judgment on Plaintiff's Claims Alleging Violations of the Broader Provisions of KRS Chapter 216 (Doc. # 29), Motion for Partial Summary Judgment on Plaintiff's Claims Alleging Violations of Federal Statutes and Regulations (Doc. # 30) and Motion for Partial Summary Judgment on Plaintiff's Claims Alleging Criminal Conduct (Doc. # 31).
Britthaven's last four Motions apparently went unnoticed by Mrs. Halcomb's attorney, as he failed to file a response for almost two months. After receiving a courtesy call from the Court, Mrs. Halcomb's attorney hastily filed a response brief. (Doc. # 33). Although the brief is styled as a response to Britthaven's last four Motions, it substantively addresses only the Motion for Summary Judgment on Plaintiff's Claims Alleging Violations of the Broader Provisions of KRS Chapter 216. (Id. ). Despite the perfunctory briefing on these four Motions, the Court considers them ripe for review because it has given Mrs. Halcomb more than ample opportunity to brief the issues raised therein. Accordingly, the Court will proceed with its analysis of all five Motions for Summary Judgment.
a. Standard of Review
Summary judgment is appropriate when 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(a). If there is a dispute over facts that might affect the outcome of the case under governing law, then entry of summary judgment is precluded. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the ultimate burden of persuading the court that there are no disputed material facts and that he is entitled to judgment as a matter of law. Id. Once a party files a properly supported motion for summary judgment by either affirmatively negating an essential element of the non-moving party's claim or establishing an affirmative defense, "the adverse party must set forth specific facts showing that there is a genuine issue for trial." Id. at 250. "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Id. at 252.
b. Negligence Per Se
To succeed on a negligence claim in Kentucky, a plaintiff must prove the following elements: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the standard by which his or her duty is measured; and (3) consequent injury. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky. 2003). "Generally, each person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury." Boland-Maloney Lumber Co., Inc. v. Burnett, 302 S.W.3d 680, 686 (Ky. Ct. App. 2009) (internal quotations omitted). Ordinary care is "the degree of care which a reasonably prudent person would exercise under the same or similar circumstances." Id.
However, duty may be established in other ways. Id. For example, "[n]egligence per se is merely a negligence claim with a statutory standard of care substituted for the common law standard of care.'" Young v. Carran, 289 S.W.3d 586, 588-89 (Ky. Ct. App. 2008) (quoting Real Estate Mktg, Inc. v. Franz, 885 S.W.2d 921, 926-27 (Ky. 1994)). The negligence per se doctrine has been codified by KRS § 446.070, which provides that "[a] person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation." Ky. Rev. Stat. Ann. § 446.070; Vanhook v. Somerset Health Facilities, LP, Civ. A. No. 14-121-GFVT, 2014 WL 7075265 at *4 (E.D. Ky. Dec. 15, 2014) (characterizing the negligence per se statute as "creat[ing] a private right of action under which a damaged party may sue for a violation of a statutory standard of care"). However, the plaintiff must satisfy three prerequisites:
first, the statute in question must be penal in nature or provide "no inclusive civil remedy, " Hargis v. Baize, 168 S.W.3d 36, 40 (Ky. 2005); second, "the party [must be] within the class of persons the statute is intended to protect, " Young, 289 S.W.3d at 589 (citing Hargis, 168 S.W.3d at 40); and third, the plaintiff's injury must be of the type that the statute was designed to prevent. Griffith v. Kuester, ...