United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION AND ORDER
R. Thapar, United States District Judge
baseball, ties go to the runner. In summary judgment, ties go
to the plaintiff. Why? Because civil litigants have a right
to a jury trial. See U.S. Const. amend. VII. And
when a case comes down to a close call, the jury must be the
one to make it. See Kennedy v. Silas Mason Co., 334
U.S. 249, 256 (1948) (“While we might be able, on the
present record, to reach a conclusion that would decide the
case, it might well be found later to be lacking in the
thoroughness that should precede judgment of this importance
and which it is the purpose of the judicial process to
provide.”); Coburn v. Rockwell Automation,
Inc., 238 F. App'x 112, 127 (6th Cir. 2007) (noting
that close calls should be submitted to the jury); see
also Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 255
(1986) (noting that courts must act with caution before
granting summary judgment). Whether Robyn Bentley filed her
suit in a timely fashion is one of those close calls. As
such, a jury must decide it.
Robyn Bentley, it started with a sore throat. Not feeling
well, Bentley went to an after-hours clinic run by Highlands
Regional Medical Center (“Highlands”). There, a
nurse practitioner took a look, found redness and swelling,
and sent Bentley home with a diagnosis of pharyngitis and a
prescription antibiotic. R. 110 at 5-6.
days later, Bentley returned to Highlands. This time, though,
her symptoms were more diverse and alarming. The sore throat
was gone. But when Bentley arrived mid-morning, she was
already nauseated, suffering from abdominal and back pain,
and having difficulty urinating. Concerned, the clinic sent
Bentley to Highlands's emergency room for a CT scan. That
scan revealed calcified deposits in Bentley's kidneys.
The doctors diagnosed her with kidney stones, prescribed a
muscle relaxant and pain medication, and sent her on her way.
That was 2:00 p.m. on Sunday, July 28. Id. at 6; R.
352-2; R. 356-2 at 2-6 (Bentley Depo. I at 85-102).
a.m. the next morning, Bentley's condition had worsened.
She awoke with severe pain stretching into her legs. And new
to Bentley was a sensation that her legs were tingling and
weakening. R. 356-2 at 7 (Bentley Depo. I at 106). An hour
later, she checked into the emergency room of another
hospital-Paul B. Hall Regional Medical Center
(“PBH”). To PBH staff she reported two nights of
back pain, difficulty walking, numbness and tingling in her
legs, and difficulty urinating. R. 110 at 6; R. 352-4; R.
356-2 at 8 (Bentley Depo. I at 111-12). Bentley then met with
Dr. Thomas Styer, an emergency physician working the
overnight. Dr. Styer suspected that something might be amiss
with Bentley's spine, so he ordered a CT scan. Because
the scan came up negative for any emergent findings in
Bentley's lower back, Dr. Styer determined that he could
not admit Bentley for observation. He diagnosed her with
acute back pain and sent her on her way- again-this time with
instructions to follow up with her family doctor. That was
5:00 a.m. on Monday, July 29. R. 356-2 at 11-15 (Bentley
Depo. I at 122-33, 145).
went home and tried to sleep. But rest eluded her, and by
9:30 a.m. she was in front of Dr. Blake Burchett, her family
physician. By now, Bentley had begun to lose control of her
left foot. Dr. Burchett examined Bentley, found her reflexes
were diminished, and decided to send her to Central Baptist
Hospital in Lexington, Kentucky. But before that, Dr.
Burchett sent Bentley back for an MRI at the place where her
ordeal had begun nine days before-Highlands. See R.
352-5; R. 356-2. at 15-17 (Bentley Depo. I at
did not happen right away. For a few hours, Bentley and her
parents waited at the hospital, without answers, worrying
that things were getting worse. In the early afternoon, Dr.
Burchett showed up for results, only to learn that the
“stat” scan he had ordered still had not been
done. Only after Dr. Burchett raised a bit of a fuss did
Highlands staff take Bentley for her MRI. See R.
356-3 at 2 (Bentley Depo. II at 15); R. 356-4 at 2 (R. Adams
Depo. at 54).
the MRI was finally done, however, it had no final answers.
Not because there was nothing to see; as Bentley would learn
much later, there was something lurking-a worrisome shadow.
Highlands's radiologist, Dr. Terry Hall, just missed it.
R. 110 at 8; R. 356-2 at 21 (Bentley Depo. I at 179-80). And
so, still untreated, the numbness and loss of motor control
continued moving up Bentley's legs toward her abdomen.
Concerned, Dr. Burchett decided that it was time for Bentley
to go to Central Baptist. A few hours later, Bentley at last
was on her way. R. 352-3 (Bentley Depo. II at 9-10); R. 356-3
at 6 (Bentley Depo. II at 29-30).
continued to lose control of her legs over the two hours it
took her ambulance to reach Lexington. And now a new symptom
appeared. Bentley began experiencing shortness of breath and
a sensation that her symptoms were moving up toward her
diaphragm. See Id. at 7-8 (Bentley Depo. II at
Central Baptist, doctors ran another MRI. This time, they
found a culprit near where PBH's Dr. Styer had thought
they might: While Bentley's spinal column might not have
been compressed, there was significant swelling in her spinal
cord. With inflammation now their target, doctors hatched a
plan. In the early-morning hours of July 30, they started
Bentley on intravenous steroids. See Id. at 9-11
(Bentley Depo. II at 42-49).
morning, Bentley's ease of breath had returned and her
symptoms had stabilized. A neurologist informed her that her
bout of strep throat might have triggered a flare-up of
Devic's disease, a previously latent autoimmune disorder.
So he ordered various tests and several days of steroids,
followed by plasmapheresis. But Bentley never regained the
motor control she lost before Central Baptist. She remained
paralyzed from the chest down. See Id. at 11-12
(Bentley Depo. II at 50-53); R. 356-6 at 2-3 (C. Adams Depo.,
3/17/2016, at 53- 56); R. 356-2 at 22 (Bentley Depo. I at
183-84); R. 356-7 (Facebook Post of Aug. 2, 2013).
left Central Baptist on August 9, 2013. Her treatment did not
end there. She spent the next month in physical and
occupational therapy at Cardinal Hill Rehabilitation. After
that, she switched to outpatient sessions. Meanwhile, Bentley
continued a Rituxan regimen under the watchful eye of a
neurologist who hoped that the immunosuppressant would
prevent any recurrences of spinal inflammation. R. 356-3 at
14 (Bentley Depo. II at 101-02). Still hopeful her condition
might improve, Bentley even considered a trip to China for an
experimental treatment. But her neurologist suggested instead
a visit to Johns Hopkins Medical Center, which housed a
research center dedicated to inflammatory conditions of the
spinal cord. See R. 356-2 at 18 (Bentley Depo. I at
167-68); R. 351-8 (Facebook Post).
September 3, 2014, Bentley met with Dr. Carlos
Pardo-Villamizar, the director of the Transverse Myelitis
Center. On a positive note, Dr. Pardo gave Bentley the
diagnosis she had been missing. Her condition was not
Devic's disease, but acute inflammation brought on by the
infection that had caused her sore throat a week before. That
meant no more worries about recurrences and no more Rituxan.
But with this good news came some bad. According to Bentley,
Dr. Pardo became the first person to tell her that PBH and
Highlands could have minimized-or reversed-her paralysis if
only they had treated her with IV steroids earlier on July
29, 2013. R. 351-4 at 2 (Bentley Depo. I at 21-23); R. 356-2
at 19 (Bentley Depo. I at 169-70).
went to court nearly one year later, on September 1, 2015. R.
1-2. She sued PBH, Dr. Styer, and Whitaker National
Corporation, the company who hired Dr. Styer out to PBH.
Id. She sued Highlands and Dr. Hall, too.
Id. Bentley pled claims as diverse as medical
negligence and violations of the Kentucky Consumer Protection
Act. See Id. at 7- 21; R. 110 (first amended
complaint). But all of those claims rested on a single
theory: If Dr. Styer had examined her properly-and ordered an
MRI or a neurological consult-while she was at PBH, or if Dr.
Hall had read her MRI correctly ...