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Carr v. Lake Cumberland Regional Hospital, LLC

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

March 21, 2017

GEOFFREY CARR, as Guardian of the Estate of an Incompetent, JOSEPH CARR PLAINTIFF
v.
LAKE CUMBERLAND REGIONAL HOSPITAL, LLC, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          DAVID L. BUNNING UNITED STATES DISTRICT JUDGE

         I. Introduction

         This opinion addresses one of several claims that arose out of an allegedly botched bariatric surgery performed by Defendants. In light of the complications Joseph Carr suffered after his surgery, Plaintiff claims that Defendants negligently misrepresented their ability to provide skilled medical and surgical care to bariatric patients. Defendant Lake Cumberland Regional Hospital, LLC (Lake Cumberland) moved for judgment on the pleadings, arguing that a negligent misrepresentation that results in physical harm is not a recognized cause of action in Kentucky. Because Kentucky courts have recognized the tort of negligent misrepresentation only in the context of certain business transactions that result in pecuniary harm, it is unlikely that Kentucky courts would expand existing law to recognize the claim in this context. As a result, Lake Cumberland's motion for judgment on the pleadings (Doc. # 39) is granted.

         II. Factual and Procedural Background

         Defendant Lake Cumberland Regional Hospital, LLC (Lake Cumberland) (d/b/a Lake Cumberland Regional Hospital and d/b/a Commonwealth Bariatric Center) operates a hospital in Pulaski County, Kentucky. (Doc. # 1-3 at 6-7). Commonwealth Bariatric Center (CBC) is a part of the hospital that performs bariatric (weight-loss) surgeries. (Id. at 7). Defendant Dr. John Husted, M.D., was the medical director of CBC and performed bariatric surgeries on patients there. (Id. at 8).

         Plaintiff Geoffrey Carr (Plaintiff) is the court-appointed guardian of his son, Joseph Carr (Carr).[1] (Doc. # 20). In September 2008, Dr. Husted consulted with Carr about bariatric surgery. (Doc. # 1-3 at 8). Husted and Lake Cumberland “represented to Carr, the community, and others that Defendant Husted was able to provide specialized care in bariatric surgery, and that he would be available for continuity of care purposes.” (Id. at 8). Defendants “informed, advertised and marketed to Carr . . . that [Defendants] would and could provide the level of care needed and required for bariatric surgeries and for the care required for complications of such surgeries.” (Id. at 13; see also Id. at 23-24). And Lake Cumberland “advertised and promoted Defendant Husted as CBC's skilled and experienced bariatric surgeon” to further their business interests. (Id.)

         Dr. Husted scheduled Carr for a surgical procedure called a duodenal switch on April 24, 2009. (Doc. # 1-3 at 8-9). But according to Plaintiff, Dr. Husted did not perform a duodenal switch. (Id. at 11). Instead, without prior consent, Dr. Husted performed an “unrecognized, unaccepted, and experimental procedure” on Carr. (Id.) “It is unknown precisely what procedure Defendant Husted performed on Carr, ” but it resembled a “human experimental procedure never approved in the United States.” (Id. at 9, 11).

         After Carr's surgery, CBC did not provide “the necessary and promised follow-up care, ” and Carr could not get in touch with Dr. Husted. (Doc. # 1-3 at 12). Carr also began experiencing respiratory problems that his medical care providers believed were related to allergies. (Id. at 15). On July 10, 2014, it was confirmed that “Carr was aspirating food into his lungs as a result of his bariatric surgery.” (Id.) Due to the “severe and continuing respiratory complications from his bariatric surgery, ” a different doctor performed revision surgery on Carr on March 19, 2015. (Id. at 16). The surgeon discovered that Dr. Husted “had performed a surgery that appeared incomplete and had left Carr with permanent revisions of his anatomy not recognizable as any approved bariatric procedure.” (Id.)

         Plaintiff alleges that, as a result of Defendants' negligent misrepresentations about the availability and competency of the medical and surgical care they offered, Carr “has in the past and will in the future endure further depression, psychiatric issues, respiratory problems, and other illnesses and injuries.” (Doc. # 1-3 at 16). Carr also has incurred and will incur “significant medical expenses, rehabilitation expenses, severe physical and mental pain and suffering, lost wages, loss of his power to labor and earn money and perform household services, and the loss of enjoyment of life.” (Id. at 16-17; see also Id. at 27).

         Plaintiff sued in Pulaski County Circuit Court on July 9, 2015, asserting claims of negligence, gross negligence, battery, negligent training and supervision, willful and malicious injury, negligent misrepresentation, violation of Kentucky's Health Services and Facilities regulations, violation of the Kentucky Consumer Protection Act, and sought punitive damages against Defendants. (Doc. # 1-3). On July 31, 2015, Defendants removed the case to federal court on diversity jurisdiction. (Doc. # 1). Defendants then moved for judgment on the pleadings on the negligent misrepresentation claim. (Doc. # 39). Plaintiff responded (Doc. # 40), and Defendants replied (Doc. # 41). The motion is now ripe for the Court's review.

         III. Analysis

         A. Standard of Review

          “After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.” Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008) (internal quotation marks omitted). “A motion brought pursuant to Rule 12(c) is appropriately granted when no material issue of fact exists and the party making the motion is entitled to judgment as a matter of law.” Id.

         B. Restatement (Second) ...


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